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06/05/2019

Holland & Hart and IGRP File Amicus Brief Defending Rights of Gender-Neutral Designations on U.S. Passports

Holland & Hart is currently representing the Intersex & Genderqueer Recognition Project (IGRP) as amicus, or friend of the court, on an appeal to the U.S. Court of Appeals for the Tenth Circuit in the “passport litigation,” Zzyym vs. Pompeo, which challenges the U.S. Department of State’s refusal to issue a passport with a gender-neutral marker. IGRP is a non-profit organization that promotes the interests of transgender and intersex persons who have faced discrimination due to their nonbinary gender identities and perceived failure to conform to gender stereotypes. With pro bono legal support from Holland & Hart attorneys Benjamin Simler and Marcy Glenn, IGRP became involved in the case to inform the Court of the impacts on nonbinary people who are denied access to passports with accurate gender markers.

The plaintiff in the case is Dana Zzyym, a resident of Fort Collins, Colo., who was born intersex and identifies as nonbinary, and was denied a passport after writing “intersex” on their passport application instead of checking off “male” or “female.” The U.S. District Court for the District of Colorado concluded that the State Department’s gender policy was arbitrary, capricious, and unlawful. The federal government appealed.

Holland & Hart has a longstanding tradition of supporting the LGBTQ+ community, often on a pro bono basis and in advocacy roles. In 1992, the firm served as lead trial counsel for the plaintiffs in Evans v. Romer, a groundbreaking lawsuit heard twice by the Colorado Supreme Court that the U.S. Supreme Court ultimately decided in 1996. Justice Kennedy’s 6-3 opinion striking Amendment 2 to the Colorado Constitution as a violation of the federal Equal Protection Clause became the doctrinal foundation for marriage equality in the United States.

In 2016, Simler represented a same-sex couple, one of whom is transgender, and their two young children against a Boulder landlord who refused to rent them a house because of their “uniqueness.” Holland & Hart filed a federal lawsuit, arguing the landlord’s decision constituted discrimination on the basis of sex and familial status in violation of the federal Fair Housing Act and on the basis of sexual orientation and transgender status in violation of the Colorado Anti-Discrimination Act. The trial court accepted those arguments and, in a case of first impression, held that the Fair Housing Act’s anti-discrimination provisions prohibit discrimination against transgender persons and same-sex relationships.

A copy of the amicus brief filed in Zzyym v. Pompeo can be found here.

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