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Nonbinary people could get a gender-neutral passport under new legislation

February 25, 2020
In The News

Nonbinary and intersex people could finally be able to obtain a passport that matches their gender identity under new legislation introduced Tuesday.

The bill, introduced by Rep. Ro Khanna (D-CA), would create a third gender marker option, denoted by “(X), Unspecified” rather than the current “M” and “F” designations, on US passports, passport cards, or consular reports of birth abroad. If passed, the bill would allow any nonbinary or intersex US citizen to have an accurate form of government identification, even if their state does not offer a third gender marker on driver’s licenses or state identification cards.

“Respecting every American’s gender must extend to travel abroad,” said Khanna in a statement. “The freedom to move and express yourself no matter what should be guaranteed in this country. ... Everyone in this country should have the freedom to express their preferred gender on passports.”

For those whose genders are not male or female, international travel can sometimes be a fraught process, especially if their appearance doesn’t fit traditional masculine or feminine stereotypes. Having a passport with an “X” marker could help nonbinary and intersex people to avoid awkward or dangerous questions about their sex or gender as they travel abroad.

In a statement, Lambda Legal highlighted the case of a client, Dana Zzyym, an intersex and nonbinary US Navy veteran who has been trying, unsuccessfully, to obtain a gender-neutral passport for the past five years. “Incredibly, the US State Department is in effect requiring that Dana lie on the application form in order for them to get a passport,” said Paul Castillo, an attorney at Lambda. “Dana has been forced to challenge the State Department in court and, over the past several years, had to forgo multiple opportunities to present at international conferences because they cannot lawfully exit the country.”

The bill would create a process using a “self-attestation standard” to obtain the gender-neutral marker, meaning that applicants won’t be required to provide a doctor’s letter in order to facilitate the change. Doctor’s letters are currently required for trans people seeking to change their passport gender marker from male to female or vice versa.

Intersex advocates hope implementing the bill will create a less binary world for intersex children, who are born with unique variations in reproductive or sex anatomy, compared to the two usual paths of human sex development, and often face painful nonconsensual genital surgeries at very young ages. “When third gender markers can be applied to infants born with genital differences, they may steer parents toward choosing normalizing genital surgeries to avoid a perceived stigma of an ‘X’ for their child,” Kimberly Zieselman, executive director of interACT: Advocates for Intersex Youth, said in a statement.

The State Department last adjusted its gender change requirements in 2010 when it relaxed a standard requiring binary trans people to get transition-related surgery before being able to change the gender marker on their passport. That change allowed many trans people to obtain a government ID reflecting their gender identity for the first time if they lived in states that wouldn’t allow gender changes on driver’s licenses or state IDs.

Khanna’s bill could create a similar effect for nonbinary and intersex people in the US.

Many states are already offering third gender markers on state IDs

There has been tremendous growth in the number of nonbinary people over the past decade, and more young people have embraced nonbinary identities and language than ever before. Thirty-five percent of 13- to 21-year-olds said they personally know someone who prefers that others refer to them using gender-neutral pronouns, according to a 2018 Pew study. Last year, Merriam-Webster Dictionary named the nonbinary pronoun “they” as their word of the year, as Vox’s Anna North noted.

But that growth also creates new issues for government bodies to resolve. Being able to obtain an accurate ID has an impact beyond just traveling, as IDs are also needed when starting a new job, applying for housing, or even just buying alcohol. Having an ID that matches a person’s gender identity or expression can help avoid potential run-ins with discrimination.

As recently as three years ago, every state and US territory offered only binary gender markers on driver’s licenses and state IDs. But a fairly recent and substantial advocacy effort by national and local transgender, LGBTQ, and intersex groups has rapidly advanced the issue, especially in more liberal states.

In response, many state, district, and city governments have recently begun offering third gender markers, often denoted with an “X,” to satisfy the ID needs of its nonbinary residents.

In June 2017, a decision by the Oregon Transportation Commission made Oregon the first state in the US to offer a gender-neutral ID option. Earlier that year, the Canadian province of Ontario became the first jurisdiction in North America to offer “X” as a gender marker on government IDs.

The Oregon commission’s unanimous decision came in the wake of a June 2016 court decision in Multnomah County that found that Jamie Shupe, who then identified as nonbinary, was entitled to accurate state identification.

Within a week of Oregon, the District of Columbia began offering a nonbinary gender marker as well. California passed a bill in September 2017 to allow the markers, but implementation was delayed until January 1, 2019. Maine allowed “X” gender markers in March 2018.

Since then, states have begun offering nonbinary ID options at an incredible pace. On January 1, New Hampshire became the latest state to offer an “X” gender marker, and Hawaii is set to do so on July 1. In total, 15 states and DC now legally recognize nonbinary genders.

Khanna’s bill would provide a lifeline for those in more conservative states that haven’t yet adopted such a change.

At the international level, Australian Alex MacFarlane is thought to be the first person in the world to obtain a government ID with an “X” gender marker, all the way back in 2003. Since then, at least nine other countries, including Bangladesh, Canada, Germany, India, and New Zealand, have begun offering passports with gender marker options beyond just male or female.

In the US, offering gender-neutral passports has become a mainstream position within the Democratic Party, and frontrunner presidential candidates Elizabeth Warren, Bernie Sanders, Pete Buttigieg, Amy Klobuchar, and Joe Biden include it in their policy proposals. Former New York City Mayor Mike Bloomberg’s LGBTQ equality plan does not mention nonbinary passport reform.

While Khanna’s bill likely has little chance of passing in the Republican-led Senate, or avoiding a veto from President Donald Trump, its introduction is a welcome step forward in legally recognizing the existence of nonbinary and intersex people.