Zzyym v. Pompeo

Majority - Bacharach, Circuit Judge

Yes, the State Department's application of its binary sex policy to Zzyym was arbitrary and capricious under the APA because it relied partially on unsupported reasons, making it unclear whether the agency would have reached the same decision if limited to the supported reasons. First, the court concluded that the State Department acted within its broad statutory authority under the Passport Act to require sex identification. This authority is supported by a history of consistent administrative practice and congressional acquiescence, as interpreted by Supreme Court precedents like Kent v. Dulles, Zemel v. Rusk, and Haig v. Agee, indicating that the Act's silence on sex designation does not preclude agency authority. However, reviewing the State Department's denial under the APA's arbitrary and capricious standard, the court found that only two of the five reasons provided by the agency were supported by the administrative record. The State Department's first reason, that the binary sex policy ensured accuracy and reliability of U.S. passports, was unsupported because forcing intersex individuals like Zzyym to choose a binary option inherently injects inaccuracy into the data, a point the State Department's counsel conceded. The fourth reason, that there was no medical consensus on how to determine intersex status, was also unsupported, as the State Department cited no scientific evidence for this claim and failed to explain why such a disagreement, even if it existed, would justify denying Zzyym, whose intersex status was undisputed. Finally, the fifth reason, that adding an 'X' designation would be infeasible due to time and expense, was unsupported because the State Department did not provide any cost estimates or specific details within the administrative record at the time of the decision; conclusory statements were insufficient. Conversely, the court found the second reason (the policy helped identify ineligible individuals by matching other federal agencies' binary records) and the third reason (the policy helped make passport data useful for other agencies like law enforcement) to be supported by the record. Given that the administrative decision rested on multiple grounds, some supported and some not, and the State Department did not indicate whether it would have reached the same conclusion if limited to the valid reasons, the court held that remand to the agency for reconsideration was necessary. The court could not speculate on the agency's true motivations, citing SEC v. Chenery Corp.