PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

____________________________________ 

DANA ALIX ZZYYM, 

 Plaintiff - Appellee, 

v. 

MICHAEL R. POMPEO in his 

official capacity as the Secretary 

of State; STEVEN J. MULLEN, in 

his official capacity as the 

Director of the Colorado Passport 

Agency for the United States 

Department of State, 

 Defendants - Appellants.

No. 18-1453

____________________________________ 

Appeal from the United States District Court 

for the District of Colorado 

(D.C. No. 1:15-CV-02362-RBJ)

____________________________________ 

Paul D. Castillo, Lambda Legal Defense and Education Fund, Inc., Dallas, 

Texas (Puneet Cheema, Lambda Legal Defense and Education Fund, Inc., 

Washington, DC; Emily E. Chow and Rory F. Collins, Faegre Baker 

Daniels LLP, Minneapolis, Minnesota; and Ann E. Prouty, Faegre Baker 

Daniels LLP, Denver, Colorado, with him on the briefs) on behalf of the 

Plaintiff-Appellee. 

 

Jennifer B. Dickey, Deputy Associate Attorney General, United States 

Department of Justice, Washington, D.C. (Joseph H. Hunt, Assistant 

Attorney General; Jason R. Dunn, United States Attorney; Hashim M. 

Mooppan, Deputy Assistant Attorney General; Brinton Lucas, Counsel to 

the Assistant Attorney General; Mark B. Stern and Lewis S. Yelin, 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 12, 2020

Christopher M. Wolpert 

Clerk of Court
2 

Attorneys, Appellate Staff, United States Department of Justice, on the 

briefs) for the Defendants-Appellants. 

____________________________________ 

Before BACHARACH, SEYMOUR, and McHUGH, Circuit Judges. 

____________________________________ 

BACHARACH, Circuit Judge. 

____________________________________ 

United States citizens ordinarily need a passport to leave or reenter 

the country. 8 U.S.C. § 1185(b). The passport serves a dual function, 

proving both identity and allegiance to the United States. Haig v. Agee, 

453 U.S. 280, 293 (1981). 

For decades, the State Department has identified applicants based on 

characteristics like an individual’s sex. In identifying an applicant’s sex, 

the State Department has taken a binary approach, considering everyone as 

either male or female. 

This approach has thwarted Dana Zzyym’s ability to get a passport. 

Zzyym applied for a U.S. passport, but was intersex and could not 

accurately identify as either male or female. Because neither option 

applied, Zzyym requested a passport with an “X” designation for the sex. 

The State Department refused and denied Zzyym’s application. Zzyym 

sued, alleging that reliance on the binary sex policy 

 exceeded the State Department’s statutory authority, 

 was arbitrary and capricious under the Administrative 

Procedure Act, and 
3 

 violated the U.S. Constitution. 

The district court concluded as a matter of law that the State 

Department had violated the Administrative Procedure Act because 

 adherence to the binary sex policy exceeded the State 

Department’s statutory authority and 

 application of the policy to Zzyym was arbitrary and 

capricious. 

The court thus did not reach Zzyym’s constitutional claims. 

We conclude that the State Department acted within its authority but 

exercised this authority in an arbitrary and capricious manner. The State 

Department gave five reasons for denying Zzyym’s request for a passport. 

Two of the reasons were supported by the administrative record, but three 

others weren’t. Given the State Department’s partial reliance on three 

unsupported reasons, we don’t know whether the State Department would 

have denied Zzyym’s request if limited to the two supported reasons. The 

district court thus should have remanded to the State Department to 

reconsider the policy based only on the two reasons supported by the 

record. 

I. Dana Zzyym, an intersex person, applies for a passport. 

The State Department defines an intersex individual as “someone 

‘born with reproductive or sexual anatomy and/or chromosomal pattern that 

does not fit typical definitions of male or female.’” Appellants’ Opening 

Br. at 4–5 (quoting Appellants’ App’x vol. 1, at 94). This definition fits 
4 

Zzyym, who was born with both male and female genitalia. Given the 

presence of genitalia for both sexes, Zzyym’s birth certificate was initially 

left blank for the sex designation. But Zzyym’s parents decided to raise 

Zzyym as a male, so the original birth certificate’s blank for sex was filled 

in as “male.” The State Department has treated this birth certificate as the 

original. 

Zzyym lived as a male until adulthood. As an adult, Zzyym explored 

living as a woman and obtained a driver’s license identifying as female. 

But Zzyym grew increasingly uncomfortable living as a woman and 

eventually identified as a nonbinary intersex person. While identifying as 

intersex, Zzyym obtained an amended birth certificate identifying the sex 

as “UnKnown.” 

 When applying for a passport, Zzyym understood the need for 

accuracy. So rather than check the box for male or female, Zzyym wrote 

“intersex.” To support the identification as intersex, Zzyym supplied 

 a letter requesting an “X” sex designation and 

 a letter from a physician stating that Zzyym is intersex. 

Zzyym also provided the State Department with the amended birth 

certificate identifying the sex as “UnKnown” and a Colorado driver’s 

license identifying the sex as female.1

 

1

 After applying for an intersex passport, Zzyym obtained a driver’s 

license identifying the sex as “X.” 
5 

II. The State Department denies Zzyym’s passport application. 

The State Department denied Zzyym’s request to designate the sex as 

“X,” explaining that every applicant needed to check the box for either 

male or female. The State Department offered Zzyym three options: 

1. Zzyym could obtain a passport identifying the sex as female, 

consistent with the driver’s license. 

2. Zzyym could obtain a passport identifying the sex as male if a 

physician attested that Zzyym had transitioned to become a 

male. 

3. Zzyym could withdraw the application. 

Zzyym declined these options and requested reconsideration, 

providing two more physicians’ letters stating that Zzyym is intersex. The 

State Department declined to reconsider and again denied Zzyym’s 

application based on the binary consideration of everyone as either male or 

female. 

III. Zzyym sues the State Department. 

Zzyym sued and the district court ordered a remand, concluding that 

the State Department’s denial of Zzyym’s application was arbitrary and 

capricious. On remand, the State Department decided to retain its policy 

and again denied Zzyym’s application for a passport with an “X” sex 

designation. The district court again concluded that the State Department 
6 

had violated the Administrative Procedure Act, and the government 

appeals. 

IV. The State Department acted within its statutory authority. 

The district court concluded that the State Department had exceeded 

its statutory authority by enforcing its binary sex policy against Zzyym. 

The government disputes this conclusion, and Zzyym presents two 

arguments in rebuttal: 

1. The government waived this issue by omitting it from the 

opening appellate brief. 

2. The State Department lacked statutory authority to deny a 

passport application based on a refusal to check either the 

“male” or “female” box. 

We conclude that (1) the government did not waive this issue and (2) the 

State Department had statutory authority to require applicants to identify 

their sex as male or female. 

A. Standard of Review 

We conduct de novo review of the district court’s determination of 

the State Department’s statutory authority. EnergySolutions, LLC v. Utah, 

625 F.3d 1261, 1271 (10th Cir. 2010). If the State Department lacked 

statutory authority, its decision must be set aside. 5 U.S.C. § 706(2)(C). 

B. The State Department did not waive this argument. 

In its opening appellate brief, the government focused largely on 

whether the State Department had acted arbitrarily and capriciously by 
7 

relying on the binary sex policy. But the government’s opening appellate 

brief also addressed the issue of statutory authority, arguing that reversal 

of the characterization as arbitrary and capricious would compel us to 

reverse the ruling on statutory authority. The government reasoned that 

“the court’s statutory-authority holding [was] entirely parasitic on its 

arbitrary-and-capricious ruling and therefore fail[ed] for the same 

reasons.” Appellants’ Opening Br. at 29. 

Zzyym characterizes this reasoning as perfunctory, emphasizing that 

the government did not identify an issue involving statutory authority or 

address the issue elsewhere in its brief. According to Zzyym, the 

government’s perfunctory reasoning constituted a waiver of any challenge 

to the State Department’s statutory authority. We disagree. 

In our view, the government’s opening appellate brief adequately 

addressed the issue of statutory authority. Though only one appellate issue 

was identified, the government argued that the State Department had good 

reason to deny Zzyym’s passport application. The government apparently 

intended that analysis to address both of the district court’s rulings. 

This approach was reasonable because the district court had 

intertwined its rulings on Zzyym’s arguments. See Prieto v. Quarterman, 

456 F.3d 511, 517 (5th Cir. 2006) (stating that when procedural and 

substantive issues were “inextricably intertwined,” the appellant did not 
8 

waive the procedural issue by briefing only the substantive issue). The 

district court concluded that 

 the State Department’s reasons had been arbitrary and 

capricious and 

 the absence of good reasons meant that the State Department 

had exceeded its statutory authority. 

Zzyym v. Pompeo, 341 F. Supp. 3d 1248, 1260 (D. Colo. 2018). 

Both rulings rested on the State Department’s failure to justify its 

reliance on the binary sex policy. See id. (“Because neither the Passport 

Act nor any other law authorizes the denial of a passport application 

without good reason, and adherence to a series of internal policies that do 

not contemplate the existence of intersex people is not good reason, the 

Department has acted in excess of its statutory jurisdiction.”). We thus 

conclude that the government adequately briefed its challenge as to 

statutory authority. Given this conclusion, we reject Zzyym’s allegation of 

waiver. 

C. The State Department had statutory authority to deny 

Zzyym’s passport application based on the binary sex policy. 

The Passport Act allows the Secretary of State to “grant and issue 

passports, and cause passports to be granted, issued, and verified in foreign 

countries . . . under such rules as the President shall designate and 

prescribe for and on behalf of the United States and no other person shall 

grant, issue, or verify such passports.” 22 U.S.C. § 211a. In turn, the 
9 

President has delegated the authority to prescribe rules to the Secretary of 

State. Executive Order 11295, 31 Fed. Reg. 10,603 (Aug. 5, 1966). We 

must consider the scope of statutory authority delegated to the Secretary of 

State and the State Department. 

The statutory language is permissive, authorizing the State 

Department to deny passports for reasons not listed in the Act. Haig v. 

Agee, 453 U.S. 280, 290 (1981). For example, the Act does not say whether 

the State Department can deny passports to applicants unwilling to state 

their birth dates or Social Security numbers. Despite the absence of an 

express statutory provision, few would question the State Department’s 

authority to deny passports when applicants withhold their birth dates or 

Social Security numbers. See 22 C.F.R. § 51.20(b) (requiring applicants to 

answer all questions pertaining to eligibility for a passport). 

The Passport Act is silent about the State Department’s authority to 

deny a passport to applicants who do not identify as male or female. Given 

this silence, Zzyym disputes the State Department’s statutory authority to 

deny a passport to an applicant unwilling to check the box for either male 

or female. 

The Supreme Court has addressed other challenges to the State 

Department’s authority to deny passports for reasons that are not listed in 

the Passport Act. In these cases, the Supreme Court has analyzed the State 

Department’s statutory authority by considering past administrative 
10 

practice and congressional acquiescence. See, e.g., Kent v. Dulles, 357 

U.S. 116, 127–30 (1958); Zemel v. Rusk, 381 U.S. 1, 7–13 (1965); Haig v. 

Agee, 453 U.S. 280, 291–301 (1981). 

The Supreme Court first relied on past administrative practice in 

Kent v. Dulles, 357 U.S. 116 (1958). There the government insisted that 

applicants disclaim membership in the Communist Party in order to qualify 

for passports. 357 U.S. at 117–20. When some applicants refused, the State 

Department declined to consider their applications. Id. at 119–20. 

The Supreme Court held that the State Department had exceeded its 

statutory authority. Id. at 129–30. In reaching this holding, the Court 

observed that the State Department had previously denied passports based 

on citizenship, allegiance to the United States, or unlawful conduct. Id. at 

127. By contrast, the State Department had inconsistently denied passports 

based on belief or association. Id. at 129–30. This inconsistency made it 

unlikely that Congress had acquiesced in denying passports based on an 

applicant’s membership in the Communist Party. Id. 

But when the State Department has consistently restricted passports, 

courts assume that Congress has acquiesced if it has not legislated on the 

subject. For example, in Zemel v. Rusk, the Supreme Court held that the 

State Department could refuse to validate passports for travel to Cuba. 381 

U.S. 1, 3 (1965). The Court reasoned that the Passport Act’s language was 

broad enough to permit restrictions on where the applicant could go, 
11 

emphasizing the State Department’s history of restricting destinations. Id. 

at 8–12. 

But the State Department must sometimes confront novel challenges. 

Without past opportunities to enforce a policy, the State Department’s 

open assertion of authority implies congressional acquiescence. Haig v. 

Agee, 453 U.S. 280, 303 (1981). 

The Supreme Court inferred such congressional acquiescence in Haig 

v. Agee, 453 U.S. 280 (1981). There the State Department revoked the 

passport of a former CIA officer who had exposed undercover CIA 

operatives while travelling abroad. 453 U.S. at 283–86. In the past, the 

State Department had rarely encountered the need to revoke a passport 

based on national security or foreign policy. Id. at 303. But the 

infrequency of previous challenges didn’t matter; the Court reasoned that 

the State Department had “openly asserted” its power to revoke a passport 

for reasons involving national security and foreign policy and Congress 

had not stepped in. Id. at 303–06 (quoting Zemel, 381 U.S. at 9). The Court 

thus concluded that Congress had implicitly approved the State 

Department’s exercise of statutory power. Id. at 306. So the Court upheld 

the State Department’s revocation of the passport. Id. 

Agee’s logic fits here. Prior to Zzyym’s application, the State 

Department had never denied a passport based on an applicant’s 

unwillingness to identify as male or female. But under Agee, the 
12 

infrequency of enforcement does not strip the State Department of 

statutory authority. In denying a passport to Zzyym, the State Department 

followed a binary sex policy that had been in place for roughly 39 years. 

Zzyym argues that the passport application itself did not alert 

Congress to the State Department’s policy. But the binary sex policy was 

hardly a secret, for the State Department had enacted regulations requiring 

every applicant to use particular forms and to answer all of the questions 

on those forms. 22 C.F.R. § 51.20(a)–(b). Congress could have said if it 

wanted to allow applicants to bypass certain questions. Given the longevity 

of the State Department’s policy and Congress’s apparent acquiescence, we 

conclude that the binary sex policy fell within the State Department’s 

statutory authority.2

 

Despite Congress’s apparent acquiescence, Zzyym contends that the 

State Department can deny passports only for the reasons identified in 

Kent, Zemel, and Agee: citizenship, allegiance, unlawful conduct, foreign 

policy, and national security. See pp. 9–11, above. We disagree. Though 

2

 The district court concluded that the State Department had exceeded 

its authority because federal law does not permit denial of a passport 

application “without good reason.” Zzyym v. Pompeo, 341 F. Supp. 3d 

1248, 1260 (D. Colo. 2018). We view the quality of the reasons as 

pertinent to Zzyym’s claim that the State Department’s reasoning was 

arbitrary and capricious. See Part V, below. The issue of statutory 

authority turns on past administrative practice and congressional 

acquiescence—not the quality of the State Department’s reasoning. See 

pp. 9–10, above. 
13 

the Supreme Court has crystallized some lawful and unlawful justifications 

for denying a passport, these justifications are illustrative—not exhaustive. 

The Supreme Court addressed them only because they were at issue in the 

three cases. See, e.g., Kent, 357 U.S. at 127–28 (focusing only on 

established reasons for denying a passport that are “material here”). The 

Supreme Court didn’t suggest that these were the only reasons that could 

justify denial of a passport. We thus conclude that the State Department 

had statutory authority to deny a passport to Zzyym for failing to identify 

as a male or female. 

V. The State Department’s reliance on its binary sex policy was 

arbitrary and capricious. 

The resulting issue is whether this application of the binary sex 

policy was arbitrary and capricious based on the existing administrative 

record. See 5 U.S.C. § 706(2)(A) (arbitrary-and-capricious standard); 

Copar Pumice Co. v. Tidwell, 603 F.3d 780, 791 n.3 (10th Cir. 2010) 

(existing administrative record). For this inquiry, we presume that the 

policy was valid and place the burden of proof on Zzyym. W. Watersheds 

Project v. Bureau of Land Mgmt., 721 F.3d 1264, 1273 (10th Cir. 2013). 

Our review is “narrow,” and we are “not to substitute [our] 

judgment” for the State Department’s. Motor Vehicle Mfrs. Ass’n of U.S., 

Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Given the 

narrowness of our review, we will disturb the administrative action only if 
14 

the State Department relied on improper factors, disregarded an important 

aspect of the problem, provided an explanation that was implausible or 

inconsistent with the evidence, or failed to consider an appropriate 

alternative. Id. at 43, 51. 

On appeal, the government defends its reasons for requiring Zzyym 

to identify as a male or female. 

A. Only two of the State Department’s five reasons are 

supported by the administrative record. 

The State Department gave five reasons for relying on the binary sex 

policy: 

1. The policy ensured the accuracy and reliability of U.S. 

passports. 

2. The policy helped identify individuals ineligible for passports. 

3. The policy helped make passport data useful for other agencies. 

4. No medical consensus existed on how to determine whether 

someone was intersex. 

5. Creating a third designation for sex (“X”) was not feasible. 

We conclude that the first, fourth, and fifth reasons lack record support, 

but the second and third reasons are supported. 

1. The State Department’s first reason (that the binary sex 

policy ensured the accuracy and reliability of U.S. 

passports) lacks support in the record. 

The State Department justified the binary sex policy in part as a way 

to promote accuracy and reliability, reasoning that every U.S. jurisdiction 
15 

had identified all citizens as either male or female. For this justification, 

the State Department focused on how it determines eligibility for 

passports. This determination ordinarily requires the State Department to 

verify an applicant’s identity through identification documents issued by 

other U.S. jurisdictions. So the State Department considered how those 

jurisdictions identify characteristics such as an individual’s sex. 

The State Department noted that many U.S. jurisdictions allow 

amendment of identification documents, but differ on when to allow an 

amendment. For example, if a male transitions to a female, different 

jurisdictions may vary in 

 whether to allow amendment of a birth certificate to reflect the 

new sex and 

 what evidence is required to obtain the amendment. 

Given these differences, the State Department focuses only on original 

identification documents.3

 

We thus consider how U.S. jurisdictions have treated a citizen’s sex 

in original identification documents. For this inquiry, we use May 2017 as 

the applicable time frame because that is when the State Department denied 

Zzyym’s request. See p. 13, above. 

3

 Zzyym has not challenged the State Department’s policy of relying 

only on original identification documents when evaluating passport 

applications. 
16 

In May 2017, every U.S. jurisdiction used a binary sex policy in a 

citizen’s original identification documents, always listing the sex as either 

male or female.4

 Given the prevalence of binary sex policies, the State 

Department reasoned that listing a sex other than male or female would 

hamper verification of an applicant’s identity. 

Zzyym argues that requiring consistency between inaccurate 

identification documents does not render them more accurate or reliable. 

We agree. And for intersex individuals like Zzyym, treating every 

applicant as male or female would necessarily create inaccuracies. 

4

 Zzyym argues that the agency failed to consider recent efforts by 

some states to authorize amended documents recognizing a third sex, 

characterizing these efforts as a trend toward allowing a third sex 

designation. But the State Department did consider this development, 

acknowledging that by 2017 a handful of jurisdictions had “issued amended 

birth certificates in a third sex, and . . . a very few number of state courts 

[had] issued court orders recognizing a sex change to a sex other than male 

or female.” Appellants’ App’x vol. 1, at 84. Despite these developments, 

the State Department continued to rely on original documents and resist 

acceptance of amended documents. 

 Zzyym also points out that state policies have evolved since May 

2017. For example, Zzyym says that 

 twelve states and the District of Columbia now authorize sex 

designations other than “M” or “F” on identification documents 

and 

 seven states allow a gender-neutral category on birth 

certificates. 

But we cannot consider this information because we are limited to the 

administrative record as of May 2017. See p. 13, above. 
17 

The State Department acknowledges that some individuals are born 

neither male nor female. Forcing these individuals to pick a gender thus 

injects inaccuracy into the data. A chef might label a jar of salt a jar of 

sugar, but the label does not make the salt any sweeter. Nor does requiring 

intersex people to mark “male” or “female” on an application make the 

passport any more accurate. 

But the State Department prizes accuracy. To promote accuracy, the 

State Department requires applicants to submit original birth certificates, 

22 C.F.R. § 51.42, and establish identity with corroborating identification 

documents, 22 C.F.R. § 51.23. If the designated sex does not match the 

identification documents, the applicant must obtain medical certification 

by a licensed physician. 7 FAM § 1310(a) App. M; Appellants’ App’x vol. 

1, at 88. 

Given these requirements, an intersex applicant like Zzyym could not 

accurately complete the passport application in May 2017. If the applicant 

was intersex, the original identification documents would not accurately 

identify the applicant’s sex. So the State Department’s reliance on original 

identification documents would prevent intersex applicants from accurately 

identifying their sex. 

At oral argument, the State Department conceded that applications 

for intersex individuals like Zzyym would be less accurate under the binary 

sex policy. The State Department thus noted that it had offered to produce 
18 

a passport with an “F” (matching Zzyym’s original Colorado driver’s 

license) or an “M” (matching the original birth certificate). But when 

asked what an applicant like Zzyym should do to ensure the accuracy of the 

passport, counsel for the State Department acknowledged that (1) “it may 

be difficult when one is confronted with a form with limited options that 

may not track one’s best answer to a question” and (2) applicants “have to 

choose what fits best, and that may not be the most accurate answer that 

they would like to provide, but it is the answer that is available.” Oral Arg. 

at 7:39–8:25. 

In many cases, however, the “best” available answer may not 

conform to the applicant’s original identity documents. States issue most 

original identification documents; and when the State Department denied 

Zzyym’s application, most state identification documents pigeonholed 

everyone as male or female even though some people are neither. So 

reliance on the original identification documents would sometimes create 

inaccurate information. 

Zzyym’s experience illustrates the inevitable inaccuracies of a binary 

sex policy. Zzyym had two original identification documents that would 

ordinarily establish the sex: The original birth certificate identified Zzyym 

as male, and the driver’s license said female. With conflicting 

identification documents, the State Department instructed Zzyym to either 

identify as female or obtain a medical certification showing transition to 
19 

male. Appellants’ App’x vol. 1, at 67–68. But this instruction didn’t make 

sense because Zzyym hadn’t transitioned from female to male, and 

Zzyym’s original birth certificate said that Zzyym was male. 

The State Department’s policy effectively allowed Zzyym to obtain a 

passport by claiming to be either male or female. But the State 

Department’s binary sex policy assumes that Zzyym must be one or the 

other. How could Zzyym be neither male nor female and accurately 

identify as either sex? 

Given the State Department’s willingness to allow Zzyym to identify 

as either male or female, the binary sex policy sunders the accuracy and 

reliability of information on Zzyym’s passport application. 

* * * 

 The State Department lacks record support for its asserted interest in 

accuracy and reliability. The State Department mirrored how every U.S. 

jurisdiction was treating gender in May 2017, but these jurisdictions 

shoehorned everyone into a binary sex classification ill-suited for intersex 

applicants. The State Department thus relied on information that didn’t 

accurately describe intersex applicants like Zzyym. 
20 

2. The State Department’s second reason (that the binary sex 

policy helped the State Department identify individuals 

ineligible for passports) is supported by the record. 

The State Department also explained that the binary sex policy 

helpfully matches how other federal agencies record someone’s sex. This 

explanation is supported by the record. 

The State Department denies passport applications for various 

reasons. See 22 C.F.R. §§ 51.60–51.62. To evaluate these applications, the 

State Department must gather a broad range of information from federal, 

state, and local authorities. For example, the State Department may need to 

collect information from other federal agencies to decide whether an 

applicant has defaulted on a federal loan (22 C.F.R. § 51.60(a)(1)), has 

committed a sex offense (22 C.F.R. § 51.60(g)), or has obtained a 

conviction for drug trafficking (22 C.F.R. § 51.61). 

The State Department thus underscored two facts bearing on the need 

for consistency in data recorded by different federal agencies: 

1. “Sex is one of the primary data points used by these agencies in 

recordkeeping . . . .” Appellants’ App’x vol. 1, at 85; see id. at 

45–46 (“Sex is a key component of the ‘biometric identity’ that 

the Department uses to verify the identity of the applicant and 

distinguish individuals.”). 

2. “[A]ll such agencies recognize only two sexes.” Id. at 85. 

In May 2017, the State Department’s system required an applicant’s 

data to match many other federal agencies. And every federal database 

identified each person as either male or female. So if the State Department 
21 

searched for Zzyym with an “X” designation for sex, the search would 

yield mismatches for the applicant’s sex. To uncover the reason for the 

mismatches, an employee in the State Department would need to manually 

override the “X” designation of sex. 

The State Department could thus rationally insist on identifying the 

applicant’s sex in a way that matched other federal databases.5

 To 

minimize confusion, the State Department reasonably concluded that a 

binary sex policy could enhance the ability to verify identity.6

Of course, the State Department also searches state and local 

databases in order to assess eligibility for a passport. For example, federal 

5

 Zzyym contends that the State Department failed to consider the 

federal government’s permission for foreign individuals to enter the United 

States with passports bearing an “X” designation for sex. But the State 

Department could reasonably distinguish between the difficulties in 

accepting a foreign passport and issuing a U.S. passport. Accepting a 

foreign passport may not implicate the depth of communication with other 

federal databases that is needed to ensure eligibility for a U.S. passport. 

And we must defer to an agency’s “reasonable conclusions regarding 

‘technical or scientific matters within the agency’s area of expertise.’” 

Utah Envtl. Cong. v. Richmond, 483 F.3d 1127, 1140 (10th Cir. 2007) 

(quoting Utah Envtl. Cong. v. Dale Bosworth, 443 F.3d 732, 739 (10th Cir. 

2006)). 

6

 Zzyym argues that mismatches “may in fact aid” the State 

Department because “[a]ny mismatch is flagged—whether an M/F or X/M/F 

disparity—ensuring that the underlying application receives more 

scrutiny.” Appellee’s Resp. Br. at 34. But Zzyym cites no authority or 

evidence for this proposition. Without any authority or evidence, we 

decline to speculate on the possibility that more mismatches could aid the 

State Department. 
22 

law prohibits the issuance of passports to anyone owing more than $2,500 

in back child support. 42 U.S.C. § 652(k); 22 C.F.R. § 51.60(a)(2). Child 

support is governed by state law and enforced by state and local agencies. 

Though some state agencies did accommodate a third sex designation in 

2017, the State Department reasonably concluded that inaccuracies could 

still arise when contrasting an “X” sex designation with the more common 

methods of designating someone’s sex. 

Zzyym points out that the State Department could obtain useable 

information from other agencies despite differences in the ways that they 

identified an individual’s sex. For example, if an applicant’s sex didn’t 

match a federal agency’s records, the State Department could verify an 

applicant’s social security number, date of birth, and name. But manually 

overriding the mismatches would require additional resources. 

Zzyym also points out that the State Department was apparently 

willing to tolerate mismatches for transgender individuals. For these 

individuals, the State Department used a process allowing an applicant to 

identify a sex differing from the one on the driver’s license or birth 

certificate. Zzyym questions why the State Department was willing to 

accept mismatches for transgender applicants but not intersex applicants. 

 This argument proves that the State Department could accommodate 

discrepancies—not that it had to do so. In adopting the transgender policy, 

the State Department needed to evaluate all pertinent factors. Citizens to 
23 

Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). But we have 

little information on the mix of factors contributing to the State 

Department’s policy for transgender applicants. For example, nothing in 

the record suggests whether the State Department considered the 

possibility of mismatches with state databases as a factor weighing against 

the transgender policy. 

Regardless of what the pertinent factors were, we know that the State 

Department was ultimately willing to tolerate some mismatches between 

transgender applicants’ passport applications and the original identification 

documents. But we don’t know how the State Department weighed the 

inevitability of these mismatches. Given the absence of information on how 

the State Department weighed this factor for transgender applicants, we 

cannot speculate. So the State Department’s apparent tolerance for 

mismatches among transgender applicants does not bear on the 

reasonableness of this factor for intersex applicants. 

Transgender applicants aside, Zzyym points out that mismatches may 

emerge whenever the State Department and a particular state use different 

methods to identify an individual’s sex. For example, Zzyym points to the 

instruction to identify as either male or female, which may or may not 

correspond to states’ underlying databases. So under either approach, 

mismatches will arise. 
24 

But the State Department has reasonably tried to limit unnecessary 

mismatches. Under arbitrary-and-capricious review, the agency need not 

select a perfect solution—just a rational one. See Forest Guardians v. U.S. 

Forest Serv., 329 F.3d 1089, 1099 (9th Cir. 2003) (“An agency’s actions 

need not be perfect; we may only set aside decisions that have no basis in 

fact, and not those with which we disagree.”), quoted with approval in

Biodiversity Conservation All. v. Jiron, 762 F.3d 1036, 1074 (10th Cir. 

2014). Because the State Department could rationally try to reduce 

unnecessary mismatches, we conclude that the administrative record 

supports the State Department’s second reason to rely on the binary sex 

policy. 

3. The State Department’s third reason (that the binary sex 

policy helped make passport data useful for other agencies) 

is supported by the record. 

The State Department also reasoned that using a third sex designation 

could burden other state and federal agencies when they use the State 

Department’s data. Again, the State Department noted that (1) most 

agencies’ systems accommodate only two sexes and (2) allowing a third 

sex designation could complicate searches. These complications, the State 

Department reasoned, would burden other agencies that use passport data. 
25 

For example, the State Department pointed to law enforcement, which 

often uses passport data to identify victims and to locate criminal suspects. 

Zzyym argues that the State Department’s rationale lacks record 

support and relies on “sweeping assumptions about technical specifications 

of third-party computer systems.” Appellee’s Resp. Br. at 34. We disagree. 

The State Department could reasonably conclude that use of a third sex 

designation would impede at least some other systems that classify 

everyone as either male or female. We thus conclude that the 

administrative record supported the State Department’s third reason to rely 

on the binary sex policy. 

4. The State Department’s fourth reason (that a lack of 

medical consensus existed on how to identify individuals as 

intersex) is unsupported by the record. 

The State Department also concluded that the medical community 

lacks a consensus on how to determine whether someone is intersex, 

rendering an “X” designation “unreliable as a component of identity.” 

Appellants’ App’x vol. 1, at 86. But this reasoning lacks support in the 

administrative record and does not apply to unquestionably intersex 

individuals like Zzyym. 

According to the State Department, medical experts vary on whether 

to base intersexuality solely on somatic characteristics, self-identification 

as intersex, or both. But the State Department cites no scientific evidence 

of this disagreement about the medical definition of intersexuality. 
26 

In defending this rationale, the State Department cites pages 86 and 

87 of its appendix. This page is simply an excerpt from the State 

Department’s brief in district court. In that brief, the State Department 

failed to cite any evidentiary support for a disagreement in the medical 

community about the meaning of intersexuality.7

 

Indeed, the State Department’s appellate brief defines intersexuality 

based on somatic characteristics, stating that an intersex person is 

“someone ‘born with reproductive or sexual anatomy and/or chromosomal 

pattern that does not fit typical definitions of male or female.’” 

Appellants’ Opening Br. at 4 (citing Appellants’ App’x vol. 1, at 94). This 

definition appears consistent with the academic literature on 

intersexuality.8

 

7

 In denying Zzyym’s request, the State Department said that “[r]eview 

of recent expert declarations and medical literature confirms that there is 

no [] consensus at this time as to the definition of a third sex.” Appellants’ 

App’x vol. 1, at 86. But the State Department did not identify or submit 

any of these declarations or medical excerpts. 

8

 See Heino F.L. Meyer-Bahlburg, Transsexualism (“Gender Identity 

Disorder”) – A CNS-Limited Form of Intersexuality?, in Hormonal and 

Genetic Basis of Sexual Differentiation Disorders and Hot Topics in 

Endocrinology 75, 75–77 (Maria I. New & Joe Leigh Simpson eds., 2010) 

(describing intersexuality as “somatic” and distinguishing gender identity 

disorder from intersexuality); I.A. Hughes et al., Consensus Statement on 

Management of Intersex Disorders, 91 Archives Disease Childhood 554, 

554–56 (2006) (surveying fifty international experts in the field of intersex 

disorders and stating that criteria suggesting a disorder of sexual 

development include genital ambiguity or variations, a family history of 

disorders of sexual development, and chromosomal variations); John 
27 

In district court, the State Department pointed out that three 

physicians had given three different reasons for classifying Zzyym as 

intersex: 

1. Zzyym “was born with ambiguous genitalia.” Appellants’ 

App’x vol. 1, at 59. 

2. Zzyym “has had the appropriate clinical treatment for transition 

to intersex.” Id. at 71. 

3. Zzyym “was born intersex,” “identifies as intersex,” and “has 

had surgery for transition to female genitalia.” Id. at 73. 

These differences, the State Department argued, illustrated the lack of 

medical consensus about the meaning of intersexuality. 

The State Department’s argument in district court had overlooked the 

context for these differences. The first physician had classified Zzyym as 

intersex based solely on the basis of somatic characteristics, referring to 

McLean Morris, Intersexuality, 163 J. Am. Med. Ass’n 538, 540 (1957) 

(stating that the term “intersexual” “should be restricted to those with 

congenital anatomic variations and not used when referring to those 

showing the endocrine phenomena of post-natal virilization or 

feminization”); U.S. National Library of Medicine, Intersex, MedlinePlus, 

https://medlineplus.gov/ency/article/001669.htm (updated Aug. 7, 2019) 

(“Intersex is a group of conditions where there is a discrepancy between 

the external genitals and the internal genitals (the testes and ovaries).”); 

see also Jessica A. Clarke, They, Them, and Theirs, 132 Harv. L. Rev. 894, 

898 (2019) (stating that intersex individuals are “people who are born with 

any of a range of sex characteristics that may not fit a doctor’s notions of 

binary ‘male’ or ‘female’ bodies” (quoting Intersex Definitions, Interact, 

https://interactadvocates.org/intersex-definitions/)); Aileen Kennedy, Fixed 

at Birth: Medical and Legal Erasures of Intersex Variations, 39 Univ. New 

S. Wales L.J. 813, 813 (2016) (“The term ‘intersex’ describes variations in 

sex development whereby a person’s biological sex traits are not 

exclusively male or female.” (footnote omitted)). 
28 

the presence of ambiguous genitalia. The State Department rejected this 

explanation and pointed Zzyym to the policy for transgender applicants, 

which required a physician’s statement attesting to “appropriate clinical 

treatment for transition to the new gender.” Id. at 68. In response, Zzyym 

supplied the second letter, which complied with the State Department’s 

instruction to verify transition to the new gender. Id. at 71. The third letter 

simply confirmed that Zzyym was intersex and identified as intersex. Id. at 

73. None of the letters purported to define intersexuality or discussed how 

the medical community defines intersexuality. 

Even if the medical community disagreed on whether some 

individuals are intersex, the State Department would need to explain why 

the lack of a consensus would justify denying Zzyym’s application. See 

Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962) 

(stating that administrative decisions must rationally connect the factual 

findings to the decision being made). 

The State Department didn’t provide such an explanation, assuming 

instead that disagreement about whether some applicants were intersex 

would prevent classification of anyone as intersex. Why? The State 

Department has never questioned whether Zzyym is intersex. Given 

Zzyym’s undebatable intersexuality, the State Department failed to explain 

why a lack of consensus about other individuals would justify forcing 

intersex individuals like Zzyym to inaccurately identify themselves as male 
29 

or female. Without such an explanation, we conclude that the State 

Department lacked record support for its fourth reason to rely on a binary 

sex classification.9

5. The State Department’s fifth reason (that adding a third sex 

designation (“X”) would be infeasible) lacks support in the 

record. 

Finally, the State Department reasoned that a third sex designation 

would be infeasible because of the required time and expense. But the 

9

 Zzyym also argues that the State Department could have adopted the 

conclusions of the World Professional Association for Transgender Health 

(WPATH). After all, WPATH’s conclusions had spurred the State 

Department to revise its policy for transgender passport applications. 

 WPATH’s Standards of Care acknowledge intersexuality and suggest 

that countries offer a third sex option. Given these standards, Zzyym 

argues that the State Department should have (1) adhered to the WPATH 

Standards of Care or (2) explained its departure from those standards. See 

Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) (holding 

that an agency must show an awareness that it is changing its policy and 

explain why). 

In our view, the State Department was not required to use the 

WPATH standards for intersex individuals despite using these standards 

for transgender applicants. WPATH is a private nonprofit health 

organization that makes recommendations, not a public entity creating 

international standards for passports. And the State Department’s Foreign 

Affairs Manual has not established WPATH standards as official 

government standards or required the government to defer to WPATH 

standards in future policymaking. The Foreign Affairs Manual states only 

that the government chose to use the WPATH standards for individuals 

transitioning from one sex to another. Adopting WPATH’s recommendation 

for transgender individuals does not require adoption of the 

recommendation for intersex individuals. 
30 

State Department did not estimate the additional time or expense. The State 

Department said only that it anticipated “considerable” challenges to 

 alter various systems, 

 update systems within the Bureau of Consular Affairs, 

 update internal State Department systems, and 

 update systems within other federal agencies that rely on 

passport data. 

Appellants’ App’x vol. 1, at 87. 

After the district court granted judgment to Zzyym, the State 

Department moved to stay the court’s order. With this motion, the State

Department attached a declaration quantifying the time and expense to 

alter the passport system. Appellants’ App’x vol. 3, at 229. The declarant 

 noted that standard U.S. passports are electronic and contain 

chips with a secure digitized image and biographic data, 

 described many information technology systems that would 

require modification, and 

 estimated that changing existing software systems would take 

24 months and cost $11 million. 

Id. at 225–26. We decline to consider these estimates because “review of 

agency action ‘generally focuses on the administrative record in existence 

at the time of the agency’s decision.’” Copar Pumice Co. v. Tidwell, 603 
31 

F.3d 780, 791 n.3 (10th Cir. 2010) (quoting Forest Guardians v. U.S. 

Forest Serv., 579 F.3d 1114, 1131 (10th Cir. 2009)); see p. 13, above.10 

To justify the lack of an estimate, the State Department cites 

Hillsdale Environmental Loss Prevention, Inc. v. U.S. Army Corps of 

Engineers, 702 F.3d 1156 (10th Cir. 2012). That opinion does not apply. In 

Hillsdale, we held that the Army Corps had not needed to quantify the 

effects of granting a permit on certain air emissions because those 

emissions involved only a small fraction of the anticipated impact. 702 

F.3d at 1175–76. Here the government’s argument is different—that a 

change would obviously increase cost. 

To assess the government’s allegation of an obvious increase in cost, 

we must engage in a searching, careful inquiry. City of Colorado Springs v. 

Solis, 589 F.3d 1121, 1131 (10th Cir. 2009). In doing so, we cannot accept 

conclusory statements in lieu of a meaningful explanation. See Zen 

10 The State Department also submitted a second declaration that 

discussed consideration of a “one-off” passport. Appellants’ App’x vol. 3, 

at 227. This declarant acknowledged the possibility of incorporating “‘onetime’ modifications to certain systems to change the sex marker in the 

issuance system’s database, to an ‘X.’” Id. Despite this possibility, the 

State Department ultimately decided not to produce a one-off passport 

because it would undermine the validity of U.S. passports and compromise 

national security and foreign policy objectives. Id. But the administrative 

record contains no mention of concerns involving national security or 

foreign policy, so we decline to consider this argument. 
32 

Magnets, LLC v. Consumer Prod. Safety Comm’n, 841 F.3d 1141, 1150 

(10th Cir. 2016). 

The expense is not obvious. Indeed, nine states (California, 

Colorado, Maine, Minnesota, Nevada, New Jersey, Oregon, Vermont, and 

Washington) insist that “adding non-binary gender designation in accord 

with national and international standards has required negligible 

administrative effort—the kind that accompanies routine changes to 

government documents.” Br. of Amici Curiae States at 8. One of these 

states (Colorado) represents that it incurred no cost in adopting a third sex 

designation. Id. Given the conflicting information and the absence of any 

cost evidence in the administrative record, we do not regard the additional 

expense as obvious. 

In the absence of any meaningful explanation, the State Department 

lacks record support for its reliance on additional time and expense. 

B. The State Department did not fail to consider alternatives. 

Zzyym insists that the State Department had to consider the 

alternative of a third sex designation before deviating from international 

standards. See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. 

Auto. Ins. Co., 463 U.S. 29, 51 (1983). But the State Department did 

consider those standards, and reliance on the binary sex policy conformed 

to those standards. 
33 

The International Civil Aviation Organization (ICAO) sets standards 

to ensure that every country’s passports are machine-readable. The State 

Department followed that policy, making every U.S. passport machinereadable. 

In recognizing gender changes and intersex individuals, the ICAO 

noted that some countries might issue passports with an “unspecified” 

designation, using an “X” printed letter and a “<” machine-readable 

character. In explaining its decision to adhere to the binary sex policy, the 

State Department attached a document entitled “Use of a Third Sex Marker 

by Contracting States as Permitted by ICAO.” Appellee’s Supp. App’x at 

56. The attachment of this document showed that the State Department had 

recognized the ICAO change. 

The binary sex policy conforms to the ICAO standard. The ICAO 

allowed use of a third sex designation but did not require it. Appellants’

App’x vol. 3, at 220 (“Since 1999, ICAO standards have allowed, but do 

not require, countries to permit a third sex designation: ‘unspecified.’”). 

The State Department simply decided not to use the ICAO’s option,11

11 Only a few countries use the ICAO’s “X/<” option even though it has 

been standardized for roughly 20 years. See Appellants’ App’x vol. 3, at 

220 (“Although several countries have begun to offer a third option in their 

passports, most countries have not.”); Appellee’s Supp. App’x at 57 

(listing Australia, Bangladesh, Denmark, India, Malta, Nepal, and New 

Zealand as the only countries issuing passports in 2017 with a third sex 

designation). 
34 

reasoning that it would not have matched how any U.S. jurisdiction was 

treating the designation of sex in original identification documents. The 

State Department thus considered the alternative of using a third sex 

designation. 

VI. Given the existence of two reasons that are supported and three 

others that are unsupported, the State Department must 

reconsider its denial of Zzyym’s application. 

We have concluded that (1) the State Department’s first, fourth, and 

fifth reasons are unsupported and (2) the second and third reasons are 

supported. We have no way of knowing whether the State Department 

would still have relied on the binary sex policy if limited to the second and 

third reasons. 

 When an administrative decision rests on multiple grounds—some 

supported and some not—we must determine what the agency would have 

done had it recognized its errors. When an agency has indicated that its 

reasons were independent and one of the reasons was flawed, we have 

upheld the agency action. Am. Fed’n of Gov’t Emps. AFL-CIO, Local 2263 

v. Fed. Labor Relations Auth., 454 F.3d 1101, 1107 (10th Cir. 2006). But 

we have never encountered a situation where we cannot tell whether the 

agency would have taken the same action if it had known that some 

justifications were unsupported. 

Two circuits, the D.C. Circuit and the Fifth Circuit, have considered 

this issue. The D.C. Circuit has held that when an agency relies on 
35 

multiple grounds and some of the reasons are unsupported, the court can 

ordinarily uphold the administrative decision only if the agency clearly 

would have reached the same decision if limited to the supported reasons. 

NLRB v. CNN Am., Inc., 865 F.3d 740, 756 (D.C. Cir. 2017); Bally’s Park 

Place, Inc. v. NLRB, 646 F.3d 929, 939 (D.C. Cir. 2011); Casino Airlines, 

Inc. v. Nat’l Transp. Safety Bd., 439 F.3d 715, 717 (D.C. Cir. 2006). For 

this holding, the D.C. Circuit has reasoned that “[a]rbitrary and capricious 

review strictly prohibits us from upholding agency action based only on 

our best guess as to what reasoning truly motivated it.” Williams Gas 

Processing-Gulf Coast Co. v. FERC, 475 F.3d 319, 328–29 (D.C. Cir. 

2006). So when the court cannot tell whether an agency’s surviving 

rationale would have led to the same decision, the D.C. Circuit has 

remanded to the agency. See, e.g., Consol. Edison Co. of New York v. 

FERC, 823 F.2d 630, 641 (D.C. Cir. 1987). 

The Fifth Circuit took a different approach in Texas Tech Physicians 

Ass’ns v. DHS, 917 F.3d 837 (5th Cir. 2019). There the court said in a 

footnote: 

Typically, when an agency reaches a decision based on 

erroneous reasoning, the Chenery doctrine prohibits a reviewing 

court from upholding that decision for an alternative reason. But 

when an agency gives multiple reasons, we may uphold its 

decision based on any one of those reasons. Salt River Project 

Agr. Imp. & Power Dist. v. United States, 762 F.2d 1053, 1060 

n.8 (D.C. Cir. 1985). 
36 

Id. at 844 n.4 (citation omitted). In stating that the court could uphold the 

decision for any one of the agency’s stated reasons, the court relied solely 

on a D.C. Circuit opinion: Salt River Project Agricultural Improvement & 

Power District v. United States, 762 F.2d 1053 (D.C. Cir. 1985). See Texas 

Tech Physicians, 917 F.3d at 844 n.4. 

Salt River follows the D.C. Circuit’s ordinary approach. Under this 

approach, the D.C. Circuit has ordinarily required remand when an agency 

gives multiple reasons for a decision and one or more of the reasons are 

invalid. See pp. 34–35, above. But the D.C. Circuit also recognizes that 

agencies sometimes make clear that they would have reached the same 

decision even without the invalid reasons. Salt River, 762 F.2d at 1060 n.8. 

In Salt River, the D.C. Circuit confronted this situation when an 

agency had found that a railroad lacked market dominance after 

considering four types of competition: (1) intramodal, (2) intermodal, (3) 

product, and (4) geographic. Id. at 1059. The D.C. Circuit upheld the 

findings on product and geographic competition and invalidated the 

findings on intramodal and intermodal competition. Id. at 1059–65. The 

court noted that invalidation of some of the agency’s reasons would 

ordinarily require remand because the court cannot “presume that the 

[agency] would have made the decision on other, valid grounds.” Id. at 

1060 n.8 (quoting Am. Pub. Transit Ass’n v. Lewis, 655 F.2d 1272, 1278 

(D.C. Cir. 1981)). But the court decided that it could uphold the agency’s 
37 

ultimate result, reasoning that the administrative findings clearly showed 

that the agency would have “conclude[d] that [the railroad] lack[ed] market 

dominance based on its findings on product and geographic competition.” 

Id.12

We have not yet considered the need to remand when an agency 

 gives multiple reasons, some supported and others unsupported, 

and 

 doesn’t indicate whether the agency would have reached the 

same result without relying on the unsupported reasons. 

But both the Supreme Court and our court have addressed analogous issues. 

In doing so, both courts have taken an approach resembling the D.C. 

Circuit’s. For example, we’ve reversed and remanded when a district court 

erroneously submits a legal question to the jury and it’s uncertain whether 

12 One of the panel members explained the importance of clarity in the 

administrative findings: 

I join [the majority] opinion, and write separately only to 

underscore my view that in this case we go to the absolute limits 

of our ability to uphold an agency’s result, despite error in its 

subsidiary findings. Normally, where fully one-half the factors 

relied upon by the agency rest on erroneous findings and the 

agency has not stated that its correct findings would, considered 

alone, have led to the same result, remand is unquestionably 

required. Only the weakness of the underlying evidence of 

market dominance in this case, as ably discussed [in the majority 

opinion], leads me to agree that the agency would indeed have 

found no market dominance had it correctly analyzed the facts. 

762 F.3d at 1065 (Wald, J., concurring). 
38 

the jury relied on an improper view of the law. E.g., Dillard & Sons 

Constr., Inc. v. Burnup & Sims Comtec, Inc., 51 F.3d 910, 916–17 (10th 

Cir. 1995). The Supreme Court has done the same when a valid and invalid 

theory were submitted to the jury and the jury returned a general verdict, 

creating uncertainty on whether the jury relied on the invalid theory. E.g.,

Yates v. United States, 354 U.S. 298, 311–12 (1957), overruled on other 

grounds by Burks v. United States, 437 U.S. 1 (1978); Williams v. North 

Carolina, 317 U.S. 287, 291–304 (1942); Stromberg v. California, 283 

U.S. 359, 367–70 (1931). Requiring reversal in these circumstances, the 

Supreme Court and our court have reasoned that a general verdict cannot 

stand when the court must speculate on whether the factfinder would have 

reached the same determination without an error. Yates, 354 U.S. at 312; 

Williams, 317 U.S. at 292; Stromberg, 283 U.S. at 368; United States v. 

Samora, No. 19-4070, 954 F.3d 1286, slip op. at 13 (10th Cir. Apr. 8, 

2020); Dillard & Sons, 51 F.3d at 916; United States v. Dota, 482 F.2d 

1005, 1006 (10th Cir. 1973). 

The same reasoning applies when we review administrative decisions. 

Here too we lack the power to “guess at the theory underlying the agency’s 

action.” SEC v. Chenery Corp., 332 U.S. 194, 197 (1947). If we can’t 

determine whether the agency necessarily relied on deficient reasons, it 

would make little sense to uphold the agency’s action. In these cases, 

remand is appropriate “since proceeding on the right path may require or at 
39 

least permit the agency to make qualifications and exceptions that the 

wrong one would not.” Henry J. Friendly, Chenery Revisited: Reflections 

on Reversal and Remand of Administrative Orders, 1969 Duke L.J. 199, 

223. 

But a court can sometimes discern from the record whether the 

agency would have reached the same decision without relying on the 

unsupported reasons. See, e.g., Casino Airlines, Inc. v. Nat’l Transp. 

Safety Bd., 439 F.3d 715, 718 (D.C. Cir. 2006) (denying a petition for 

review because the agency’s decision shows that there is no reasonable 

dispute that the agency relied on an independent, valid reason rather than 

the invalid reason); see also pp. 36–37, above (discussing Salt River 

Project Agric. Improvement & Power Dist. v. United States, 762 F.2d 1053 

(D.C. Cir. 1985)). For example, we can uphold administrative action when 

an agency gives two independent reasons and only one of them is valid. 

Am. Fed’n of Gov’t Emps. AFL-CIO, Local 2263 v. Fed. Labor Relations 

Auth., 454 F.3d 1101, 1105–07 (10th Cir. 2006); accord Doe v. McAleenan, 

929 F.3d 478, 485 (7th Cir. 2019) (“[B]ecause [the agency’s] determination 

was based on two independent and alternative grounds, we would have to 

find error in both determinations in order to grant relief to [the 

petitioner].”). 

Other administrative determinations are harder to parse. For example, 

in Consolidated Edison Co. of New York v. FERC, the D.C. Circuit 
40 

remanded after rejecting one of the agency’s justifications. 823 F.2d 630, 

641 (D.C. Cir. 1987). The court emphasized that the agency’s error had not 

been “some minor misstatement of law or fact that [could] be passed over 

as an unfortunate lapse.” Id. The error had reflected the agency’s 

“pervasive frame of mind . . . about a crucial problem,” making it difficult 

to determine whether the agency would have made the same decision 

without the error. Id. at 641–42. 

This case presents the same difficulty. The State Department never 

said 

 whether the State Department’s five reasons were independent 

or 

 what the State Department would have decided if it had not 

considered the inevitability of inaccuracies, surmised a lack of 

medical consensus, and assumed the infeasibility of a third sex 

designation. 

It certainly appears that concern for accuracy was key to the State 

Department’s decision. Congress has criminalized false information in a 

passport application, 18 U.S.C. § 1542, and the State Department 

separately requires applicants to truthfully answer every question on the 

application. 22 C.F.R. § 51.20(b). In the face of a criminal penalty and 

regulatory requirement, we cannot simply assume that the State Department 

would have relied on the binary sex policy even after learning that it would 

create inaccuracies in passports. 
41 

These inaccuracies are inevitable because some people, like Zzyym, 

are indisputably intersex. But the State Department has not acknowledged 

the inherent inaccuracies that arise when applying the binary sex policy to 

these individuals. 

Without this acknowledgment or an explanation for forcing 

indisputably intersex applicants to apply as either male or female, the State 

Department undermined the accuracy of Zzyym’s identifying information 

and assumed without any evidence that an intersex designation would be 

too costly and lack a medical consensus. 

 At the same time, we differ with the district court as to the 

disposition. The district court concluded that the State Department lacked 

any supportable reasons to rely on the binary sex policy. We disagree. In 

our view, the State Department reasonably concluded that its policy 

matched how most jurisdictions identified an individual’s sex, facilitating 

the State Department’s assessment of eligibility for passports and other 

agencies’ use of passport data. We thus 

 vacate the district court’s entry of judgment for Zzyym and the 

court’s issuance of a permanent injunction against enforcement 

of the binary sex policy as to Zzyym and 

 remand with instructions to vacate the State Department’s 

decision and reconsider Zzyym’s application for an intersex 

passport.13

13 We express no opinion on whether the State Department’s second and 

third reasons—in themselves—would justify the State Department’s 
decision to require Zzyym to check either the male or female box on the 

application. The ultimate evaluation would require assessment of a 

different set of findings. Those findings would necessarily be based on the 

administrative record in existence when the State Department reconsiders 

its decision. See n.4, above.