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U.S. passports offer only ‘M’ or ‘F’ gender categories. A new bill would require a gender-neutral ‘X,’ too.

February 24, 2020
In The News

While filling out a passport application more than five years ago, Dana Zzyym didn’t want to lie. Instead of checking the box labeled “M” or “F” for gender, Zzyym — who is intersex and identifies as neither male nor female — wrote down an “X.”

The application was denied, prompting Zzyym to begin a lengthy, landmark court fight with the State Department, arguing that the limited gender options violated their constitutional rights.

In the half decade since, at least 15 states and the District have offered non-binary gender designations on identification cards, and major airlines have announced they will offer gender-neutral booking options for people who identify as neither male nor female.

But the State Department has refused to follow suit. Despite an order from a federal judge, Zzyym is still unable to get a passport that matches their gender identity.

Now, as the State Department continues to appeal Zzyym’s case, Democrats in Congress are pursuing a legislative solution to the dilemma. A bill to be introduced this week by Rep. Ro Khanna (D-Calif.) and more than two dozen co-sponsors would require the State Department to offer an “X” gender marker.

“This would basically say that self-affirmation is sufficient,” Khanna said. “It's bringing the United States passport into the 21st century."

The bill, while unlikely to pass the Senate or be signed into law by President Trump, marks the first legislative effort calling for a non-binary gender marker in a federal document, Khanna said. And for non-binary and intersex Americans, the move would represent a long-sought, formal recognition by the federal government.

At least 10 countries, including Australia, Canada, Germany, Bangladesh, India and New Zealand, already issue passports with three gender options. The International Civil Aviation Organization, a U.N. agency that establishes international travel document standards, already recognizes an unspecified “X” as a valid identifier.

But the State Department, in its defense in the Zzyym case, said allowing the change would require an overhaul of information systems, which it estimated would take two years and cost about $11 million. In oral arguments last month before the 10th Circuit, a lawyer representing the State Department said the agency must communicate with federal, state and local databases that do not recognize “X” designators.

“We understand the difficulty when there is a limited number of options on a form, but the government is entitled to have forms and people have to fill them out,” said Jennifer B. Dickey on behalf of the State Department.

Meanwhile, attorneys general from nine states — including Colorado, Oregon and California — filed a joint brief in support of Zzyym, writing that “providing identification documents with non-binary gender designations has proved neither complex nor disruptive.” According to data in the brief, thousands of citizens already have identification documents with a non-binary designation — including 3,500 in Oregon, which in 2017 became the first state to issue the gender-neutral IDs.

But the first person in the country officially to receive a gender-neutral driver’s license was a resident of Washington, D.C. — Shige Sakurai.

Sakurai, who identifies as non-binary and uses they/them pronouns, argued that gender markers on passports in general are unnecessary. But as long as the markers are required, there should be accurate markers available for everyone.

“I want my government to recognize that I exist and to fully include me and recognize me as a member of society,” Sakurai said. “I feel that I get that from the District of Columbia. I don’t always feel that I get that from the federal government.”

Sloane Spencer, a 36-year-old non-binary resident of the District, said the “X” gender marker “legitimized everything. It wasn’t just me, it wasn’t just in my head.” Spencer is currently in the process of renewing a passport and dreading the thought of having to choose a binary option.

“It’s one thing for me to say I’m non-binary and this is who I am,” Spencer said. “It’s something else for the government to acknowledge that.”

The gender-neutral identifier on a passport also could have practical benefits for employment, said Spencer, who works for the Shakespeare Theatre Company and often facilitates new hires.

Many non-binary people experience distress when their IDs do not match their gender identity, said Alex Binsfeld, a co-founder of Beyond Binary Legal, a new legal group that has been working with Khanna to draft language of the passport bill. The lack of a correct ID leads some non-binary people to avoid situations that require presenting identification, such as airports, where they might risk being called “ma’am” or “sir” based on a binary gender identifier, Binsfeld said.

But others worried that an “X” gender marker might put members of the non-binary community at further risk while traveling to certain countries.

“If your goal is to stay under the radar, having something like an ‘X’ marker on your passport in a country where there is no concept of a non-binary gender just invites extra scrutiny,” said Jamison Crowell, executive director of the DC Area Transmasculine Society.

In 2012, Crowell changed his gender identifier on his passport to “M,” a process that simply requires a letter from a doctor indicating that the citizen has undergone clinical treatment for a “transition from male to female or female to male.”

In recent years, Crowell has traveled to countries including Egypt and Saudi Arabia for his work as a consultant, and he often takes precautions to avoid attention. On a trip to Egypt, he scattered his testosterone vials around his suitcase to hide them. He never brings alternative identification that includes a former name or gender marker.

Next month, he’s planning to travel to the United Arab Emirates, which explicitly prohibits people with “X” gender markers on passports from entering the country.

Concerns about other countries should not stop the United States from offering non-binary gender options, said David Stacy, government affairs director for the Human Rights Campaign.

“We would never get past discrimination if people didn’t take risks and come out and be visible,” Stacy said. “In general, we believe that visibility helps, visibility creates change. … We want to create a legal system that supports those choices.”

Spencer, the 36-year-old District resident, agreed that an “X” gender marker could raise safety concerns in some countries but is a worthwhile risk to educate others about the community.

“Even if I’m the first person with an ‘X’ marker on my passport that the customs person comes up against,” Spencer said, “it’s going to make it that much easier for the next person.”