Legally X: the Future of a Third Gender Marker in the US

Although many indigenous cultures have long embraced understandings of gender identity that move beyond the man/woman binary, mainstream, non-native American culture—the one that gets to determine the legal processes of the country—is only just exploring what it means to occupy a space outside that binary for the first time. Contemporary understandings of gender identity as an internal designation by the individual, and gender expression as an external display that can help others recognize one’s identity, have already expanded to reconcile non-binary people’s existence, but legal documentation is still lagging. Some may respond that genitals or chromosomes determine whether the government writes down “M” or “F” in the box; however, the demand that one strip and present a recent karyotype any time one asserts that one is a man or woman is clearly a ridiculous one. Biological sex—the full picture of one’s chromosomes, genitalia, hormones, and post-puberty changes that is often misconstrued as gender—cannot even simply be broken down into “male” and “female” categories. Around 1 in 100 people are born “intersex,” or outside our definitions of the two standard biological sexes. A comparable number of people are born redheads, but arguing that the government should categorize them as exclusively blond or brown-haired would be laughable. (Gender, it should be noted, is a combination of identity and performance best left to anthropologists to define.) 

Someone who is cisgender—identifying with the gender assigned at birth, the antonym of “transgender”—may not recognize how many everyday documents have a gender marker: birth certificates, marriage licenses, driver’s licenses, state IDs, student IDs, passports, airplane tickets, health records, job applications, and housing applications, among many others. For the vast majority of people, the options “M” and “F” work, but for those who identify outside the gender binary, those designations do not necessarily hold true. The current international standard is the marker “X” for unidentified on documentation, which is far from standard or even available to most Americans. On the cusp of the 2020 presidential election, with a mixed-bag of outcomes for trans rights issues on state and national levels, what does the future of legal non-binary gender recognition look like? There are three main questions to consider: 1) whether equality will be brought on the nation level or through piecemeal state actions; 2) whether the achievement will come from legislation or court precedent; and 3) what arguments will be used to secure these rights.

At the state level (see figure 1), there is no uniformity for whether gender markers should be changeable—a prerequisite for creating a third standard gender. In Tennessee, Kansas, and Idaho, changing one’s gender markers on IDs is either de jure or de facto impossible. Other places make it incredibly difficult—like Ohio, which will only grant changes from out-of-state courts—or practically pointless—like Mississippi, which will only allow for a notation in the margins of the document. Most states do allow for changing gender markers, but only after proof of “surgical” alteration of the citizen’s sex (aka gender reassignment surgery or the less essentializing term, bottom surgery). At best, this requirement delays the process for trans people who want bottom surgery, as medical professionals typically require long-term hormone replacement therapy before performing procedures. At worst, it becomes impossible for trans people who cannot afford or do not want bottom surgery, as well as non-binary people for whom there is no standardizable “gender reassignment surgery” to change their gender markers. Ultimately, only about half of the states have laws which provide for the existence of non-binary transition. Though the number of states for a critical mass where national regulation of gender marker changes is becoming possible, any legislation will likely require a surgical component to appease reluctant constituents. Given this lack of feasibility and persistent refusal in some areas for changing gender markers, national level intervention seems inescapable for gender marker reform. 

The necessity of national intervention is further supported by the underwhelming number of states which currently allow some form of non-binary gender markers (see figure 2). Only eighteen states have these kinds of options available on some form of documentation (usually a driver’s license); only three of these eighteen make it available for all state documents (including birth certificates). As a result, most non-binary trans people will always have documentation that reveals their assigned sex at birth. The trouble of mis-matched paperwork is not unique to non-binary trans people, as binary trans people may get different paperwork corrected at different rates, but the majority of states at least recognize that binary trans people exist and should be accomodated. The same awareness is not there for non-binary people. Many essential tasks require dual ID checks, making mismatched gender markers a major barrier for normal governmental or private sector tasks, and leading to either rejection or agency-selection of markers (especially if there is an unchanged birth certificate). These struggles are heightened for undocumented or immigrant trans people as more barriers are thrown into their path to have the state accurately recognize their identity. In a feedback loop, these mismatched IDs may even prevent trans individuals from being able to access forms of correct identification. Colorado resident and non-binary intersex activist Dana Zzyym, with the support of Lambda Legal and pro-bono lawyers, sued the State Department twice (and won twice) for their refusal to issue an appropriate passport that is congruent with all of Zzyym’s other documentation. Zzyym has been unable to leave the US for their work advocating for intersex people since their suit began in 2014. Their case to add a third marker to passports as a resident of state which amends birth certificates and as an intersex person is the best test case for legal changes at the national level. Unfortunately, it obscures how impossible their situation is for most people and may leave readers overly optimistic about the power and potential of piecemeal state legalization to pressure national representatives to vote in favor of a third gender marker.

While the majority of state-by-state progress is being made in the legislature, national level changes are likely to occur through the courts. Zzyym’s lawsuits have already cracked national-level resistance by establishing the marker “X” as allowable given the proper documentation in Colorado courts, playing into the strengths of legal advocacy groups like the ACLU and Lambda Legal to gradually widen their initial ruling. The advancement of LGBTQ+ rights through the courts is a common tactic that has left seasoned community members and allies ready to take up this challenge. The most viable national legislation to allow national non-binary gender markers is the Equality Act, currently referred to the Senate Committee on the Judiciary as of late May 2019, which would amend the Civil Rights Act to “… prohibit discrimination … on the basis of the sex, sexual orientation, gender identity, or pregnancy, childbirth, or a related medical condition of an individual, as well as because of sex-based stereotypes.” Even if this act passes through the Senate and is signed by Trump, it does not explicitly mention gender marker designations and will require judicial interpretation to ensure enforcement.

It is irresponsible to discuss court-mediated LGBTQ+ equality measures without noting their enforcement limitations. A classic example comes from the ruling Lawrence v. Texas (2003), which nullified anti-sodomy laws under the right to privacy. Though these laws have been unconstitutional for over a decade now, sodomy is still technically illegal in sixteen states which have not repealed them. Three states repealed their sodomy laws, all in 2013 or later, which leaves the effectiveness of the court precedent on state legislation under twenty percent. A charitable reading of the situation would suggest that the remaining sixteen states are just too busy to repeal, but it is also possible that the states which had sodomy laws in 2003 are still hopeful that the court will overturn Lawrence v. Texas (which itself had overturned the 1986 Bowers v. Hardwick case which upheld these statutes). With marriage equality similarly granted under the ruling Obergefell v. Hodges (2015) after already being legal in over thirty states prior to the decision and undeniably popular among Americans, there are still places which will deny same-sex marriage licenses or have stopped issuing marriage licenses at all so as to be in compliance with the ruling while refusing to recognize same-sex marriage. Additional rulings were required to ensure equal parental rights (adoption, birth certificates, etc.) of same-sex couples and denial regardless is not unheard of, especially with organizations that claim religious exemption. In both cases, court rulings alone were not enough—and this was without the alarmist “men in dresses attacking girls” rhetoric that surrounds trans people and issues. These post-victory scuffles evoke the words of Andrew Jackson when confronted with the ruling Worcester v. Georgia (1832), which prohibited him from evicting the Cherokee from their national lands: “[Chief Justice] John Marshall has made his decision; now let him enforce it!”

Assuming court-mediated legalization, the justifications used will be just as important as favorable rulings. In the case of Obergefell v. Hodges, Prog alumna Nora Niazian offered a critique of the ruling because of its emphasis on the importance of marriage rather than the equality of LGBTQ+ people which limits its ability as a precedent to prevent discrimination. We now see its limitations in cases like Masterpiece Cakeshop v. Colorado Civil Rights Commission (2017), which was incredibly narrow and did not rely on Obergefell v. Hodges at all. For upcoming cases like Harris Funeral Homes v. EEOC (a trans woman fired for coming out to her employer, a decision rationalized by dress-codes) and the consolidated Zarda v. Altitude Express and Bostock v. Clayton County (both gay men fired for mentioning their sexual orientation in the work place), the regressive ruling of Obergefell v. Hodges is likewise useless. If a third legal gender marker is established via the Supreme Court, the nuances between a ruling based on due process versus protected speech are crucial.

A ruling under the due process clause of the 14th amendment is the standard mode of advancing LGBTQ+ rights, but leaves the decision open to rebuke as judicial activism. The due process clause of the 14th amendment, “nor shall any state deprive any person of life, liberty, or property, without due process of law,” is the most widely used and was crucial in Lawrence v. Texas since it applies to states. This is similar to the due process clause of the 5th amendment, “nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law,” but this clause can only be applied to federal suits such as with United States v. Windsor (2013) which struck down the part of the Defense of Marriage Act which defined marriage for federal law as between one man and woman. In the case of a legal third gender, either could be helpful based on the test case since they are essentially equivalent except that they apply to states or the federal government, respectively. The other common reasoning used to advance LGBTQ+ rights, and civil rights in general, is known as the equal protection clause: “nor deny to any person within its jurisdiction the equal protection of the laws.” While this clause alone is not enough to sway a conservative court, it can be used to strengthen any other argument since (documented) cisgender people do not face obstacles to getting their approriate gender marker.

While privacy was the precedent used for Lawrence v. Texas, a better non-conventional judiciary route would be possible under a form of protected speech through the 1st amendment. The justification itself may not be as strong as the 14th (or 5th) amendment route, but the argument is one that would appeal to the sensibilities of a conservative court. In the case that a state specifically attempts to ban this new gender marker, the 1931 case Stromberg v. California which prevents the outlawing of symbolic speech might be applicable. Symbolic speech, defined broadly in American law as “actions that purposefully and discernibly convey a particular message or statement to those viewing it,” has consistently been upheld as a constitutional right in many situations. The relevant limit is found in the precedent United States v. O’Brien (1968) which established that symbolic speech may be regulated if there is “a significant government interest unrelated to the suppression of speech” such as the burning of a draft card which serves an official purpose. There may be an argument that having only two gender markers is a government interest, but the Paquete Habana (1900) ruling permits the courts to consult customary international law where other nations have been able to implement a third gender marker. Another possible challenge is the precedent in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984) which established the deference to government agencies if Congress does not explicitly address issues. Invoking this to say that it is the discretion of the national bureaucratic agencies to determine whether a third gender marker is legal would completely remove the Supreme Court from being able to influence this issue. Given that many people do not support this ruling, including recent conservative appointee Neil Gorsuch, upholding the Chevron precedent is generally an unlikely outcome. 

In all of our conversation around the hypotheticals of a legal third gender marker, it can be easy to lose sight of the real and immediate impact that out-dated or discriminatory legislation has on the lives of trans people in America. With civil rights under attack from the bathroom stalls to the workplace, optimism must be an intentional choice when trying to address the entrenched inequity facing the trans community. A third legal gender with all of the necessary advances in gender change legislation would be one small part of addressing the systemic barriers trans people face in their pursuit of life, liberty, and happiness. If welcoming and defending trans people in the bathrooms they use is an everyday action to live philosophies of acceptance, then acting to ensure the civil equality of trans people is a way to enact the principle not only of civic engagement but also of justice. There are viable options through legislation and judicial precedent to hasten the slow advance of progress for trans recognition, but there are just as many proposals to take back the small protections that have already been won. A nation-wide, unambiguous commitment to a legal “X” gender marker is one way to ensure that non-binary people have better access to not only legal documentation, but also insured and appropriate medical care, secure access to non-discrimination claims based on gender identity, and less misgendering in their lives.