Passports, social security cards, residence permits and other federal identification documents may soon offer a third gender option: X.
Already, at least a dozen states and Washington, D.C., have amended their laws to offer an X gender designation on some identifying documents, including driver’s licenses and birth certificates.
But federal rules have not changed much since 2010, when Americans were first able to apply to change the sex marker on their passports. That application has always required medical certification and is only available for those who have transitioned from one gender to another; the State Department, which issues passports, asks applicants to select either male or female.
President Biden has promised to change that, and the American Civil Liberties Union is pushing him to take action soon.
The organization has been talking with White House officials about adding a gender neutral option to all federal identification documents and records, and allowing people to affirm their own gender without a court order or medical certificate.
“We want to make sure that there’s a consistent, streamlined and practical modernization in gender markers,” said Arli Christian, a campaign strategist at the A.C.L.U. who is leading the push.
So far, the White House has not announced any actions. (In a statement to The 19th, Matt Hill, a White House spokesperson, said that President Biden remains committed to issuing nonbinary IDs and “advancing state and federal efforts that allow transgender and nonbinary Americans to update their identification documents to accurately reflect their gender identity.”)
A petition that the A.C.L.U. started last month, which calls for executive action, has more than 34,000 signatures. The organization plans to share the petition with the White House on March 31, the International Transgender Day of Visibility.
It is difficult to measure exactly how many people would choose a third gender designation on official documents. The category would provide an option for individuals who have transitioned but do not identify with either “male” or “female,” individuals who are nonbinary and those who are intersex, as well as others. Some people (and countries and international agencies) argue that there is no need for a gender designation on documents at all.
The bureaucratic hurdles to update or change gender on important documents, such as driver’s licenses and passports, can be insurmountable for many individuals.
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According to a report from Williams Institute at UCLA School of Law, about 42 percent of transgender people who are eligible to vote in 45 American states — they estimate that’s more than 350,000 people — do not have identification documents that reflect their correct name, gender or both.
A huge challenge is medical authorization, especially in the case of passports. “You have to go to a physician and get a formal letter on the letterhead,” said Mx. Christian of the A.C.L.U. That poses a problem for people “who don’t have insurance, live in rural areas and aren’t out to their providers, or haven’t had certain kinds of medical treatment for various reasons. It’s a big barrier to getting an updated ID.”
In 2014, Dana Zzyym, a military veteran, sued the State Department after being denied a gender-neutral passport. Mx. Zzyym is intersex; their original birth certificate identified them as male, and their driver’s license listed them as female, according to court documents.
In several court battles with Mx. Zzyym, the department argued that its current binary sex designation is necessary for communicating with state and federal agencies, and for confirming eligibility. The department also said that adding another gender category to information systems would require time and money. A federal judge ruled against the government, and last year, the Court of Appeals for the 10th Circuit offered a mixed opinion, saying that only two of the five reasons the State Department gave for denying Mx. Zzyym their passport were valid.
“A chef might label a jar of salt a jar of sugar, but the label does not make the salt any sweeter,” the court of appeals wrote. “Nor does requiring intersex people to mark ‘male’ or ‘female’ on an application make the passport any more accurate.” The judges added that Mx. Zzyym’s experience “illustrates the inevitable inaccuracies of a binary sex policy” and asked the State Department to reconsider Mx. Zzyym’s passport application.
“We do not comment on pending litigation,” said an official at the State Department in response to questions about the status of Mx. Zzyym’s passport.
Attorneys general from nine states filed a brief in support of Mx. Zzyym during the appeal, arguing that more states are changing their laws around gender markers, and that as many as 90 million Americans “live in a jurisdiction that issues identification containing a nonbinary gender designation.”
“We are hopeful that State Department under the Biden administration will issue Dana Zzyym’s request for an accurate passport,” Paul Castillo, Mx. Zzyym’s legal counsel, wrote in an email. “No person should have to lie about who they are in order to obtain an accurate identity and travel document.”
In some states, such as California and Oregon, a third gender option is offered on birth certificates and on driver’s licenses, and amendments to those documents are possible without medical certification. In the first two years that Oregon had the X option, more than 3,500 residents selected it on their driver’s licenses or other state identifications. In California, 1,300 people opted for gender-neutral identification documents within months of the category becoming available. Some airlines have responded to state changes by adding an undisclosed or unspecified option to the gender question for passengers.
Last year, Representative Ro Khanna, a Democrat from California, introduced a bill to Congress that would direct the State Department to allow applicants to choose X for their gender on federal documents without restriction. There has been no movement on the bill.
An executive order from President Biden requiring federal agencies to add an X gender designation would not directly affect state laws. But Mx. Christian hopes that the federal government’s actions would set an example for states to follow.
“We have seen great improvement in the public’s understanding of the need for access to accurate IDs,” Mx. Christian said. “We’ve made a lot of progress in the states, but we still have a lot of states with heavy burdens for getting a gender marker updated. This is going to be a huge advancement.”
