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Gender X Option Recognition by US States

Posted on by Ben Hartwig in Law EnforcementMay 06, 2019
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States that offer gender x option

It can be confusing, trying to make sense of the alphabet soup of acronyms swirling around these days. It’s important to understand that sexual preference (lesbian, bisexual, homosexual, queer) is usually different from gender designation or identity (trans, cis, male, female). Yet another is intersex, which indicates anatomical conditions that prevent a person from being categorized as male or female and may occur in as many as 1 in 2,000 people. That’s the gender x option. If you’re still confused, there’s a good list of definitions here.

It’s not just driver’s licenses, restroom designations, and athletic teams that are grappling with the options, but college dorms, scout groups, and even prisons that are affected. Many are becoming adept at encouraging the use of nontraditional pronouns such as “they” for an individual but official designations available on public documents like birth certificates, marriage licenses, driver’s licenses, and court records are somewhat slower to follow.

The options are meant to reduce and prevent harmful stereotyping and promote psychological well being – as well as to avoid costly lawsuits that force public institutions to make accommodations. States must keep up with steps to avoid gender discrimination, such as by training deputies to recognize domestic abuse that may come in many forms.

What is Gender X

A new option being adopted by many states, known as Gender X, will likely resolve some of the issues and confusion. Gender X is “nonbinary,” meaning neither male nor female. Several states are stepping up to allow driver’s licenses and birth certificates to be changed to “X” at the person’s request (a gender change from male to female or vice-versa may still require a doctor’s signature in some states).

Oftentimes the roll-out of available changes affects birth certificates and driver’s licenses at slightly different times because they are administered by different agencies within state governments. For instance, Vermont has recognized nonbinary gender in state law since 2007 but will begin including that option on state-issued identification in mid-2019 due to a redesign of driver’s licenses.

Many of the ground-breaking changes compelling state and federal governments to recognize nonbinary as a legitimate gender designation were won in the courts.

In 2015 a Navy veteran won a lawsuit against the federal government because they were denied a passport that identified the person as nonbinary. A district court in Colorado found that the grounds for denial were not rational and that the Department of State was overstepping its authority in recognizing only two genders. The state of Colorado began allowing a third gender designation on identification cards in late 2018 and expected birth certificate changes to follow.

Where states stand

Victories were claimed in California and Oregon in 2016 by people who sought nonbinary or intersex identification on official documents. In 2017 Oregon began to to allow “X” as a gender designation on state documents such as birth certificates and driver’s licenses, and Washington D.C. soon followed. In other more conservative states like Utah, individual victories in the courts have not yet been followed by changes in state laws allowing for nonbinary gender designations.

In other states:

  • In January 2018 the state of Washington opened its definition of Gender X to a wide interpretation, including “agender that is not exclusively male or female, including, but not limited to, intersex, agender, amalgagender, androgynous, bigender, demigender, female-to-male, genderfluid, genderqueer, male-to-female, neutrois, nonbinary, pangender, third sex, transgender, transsexual, Two Spirit, and unspecified.”

  • California enacted its Gender Recognition ActinJanuary 2019, allowing any person to opt for a change in their state-issued birth certificate or driver’s license to reflect the gender they identify with, including Gender X. Such requests do not require a legal statement from a physician as proof that the individual had undergone sex reassignment surgery but relies on a sworn statement only.

  • New York allows individuals to select Gender Xon their birthcertificates as of 2019 with a simple affidavit swearing that it’s not for fraudulent purposes, but prior to 2014 only the two traditional genders were allowed, and changing a birth certificate from one to the other required proof of gender reassignment surgery.

  • Maine will begin issuing driver’s licenses with “X” gender in mid-2019; there is no timeline yet for birth certificate changes.

  • Nevada and New Jersey both began allowing Gender X designations on state-issued identifications in 2019 as well but New Jersey does not yet allow a nonbinary designation on birth certificates for infants; Gender X may be allowed upon petition later in life.

Many have expressed surprise that Arkansas has allowed individuals to select “X” as their gender on state-issued identification since 2010, an option that was not heralded by news headlines nor widely known.

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