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Shige Sakurai of Washington, D.C., in 2017 became the first person in the country to receive a driver's license with the gender marked as "X." (David Kidd)

How Governments Are Transitioning Their Gender Policies to Nonbinary

A growing number of states and cities are letting residents identify as neither male nor female, setting up a cascade of tough policy questions.
by | June 2019

Shige Sakurai notices the stares. On a recent warm morning, the Washington, D.C., resident walked through the city’s sunlit Newseum wearing a white patterned shirt, long blue skirt and brown leather loafers. A red necklace and bracelet fashioned by a Japanese artist complemented Sakurai’s short haircut and neatly trimmed goatee. As a nonbinary person who doesn’t identify as strictly male or female and who uses the pronouns “they” and “them,” Sakurai’s appearance can attract curious glances. Sometimes it’s a concentrated, wide-eyed gape. More often, though, it’s a repeated, furtive shift of the eyes over and away and back again.  

Sakurai has publicly identified as nonbinary since the early 2000s, but they know most Americans are just beginning to learn about transgender and nonbinary communities. “I think a lot of people treat it as though nonbinary identities just emerged in the last 10 years or 50 years. Like, ‘Oh you just invented this,’” Sakurai says. In reality, certain societies throughout the world recognize third-gender, intersex or non-gender individuals. In 2007, a Supreme Court of Nepal ruling created a legal category for gender non-conforming people, allowing new options for official government documents. India followed in 2014. Once regarded as divine beings in a number of ancient societies, many gender non-conforming people now face stigma. The Bugis people, for example, are a centuries-old group in Indonesia who recognize five genders; today their numbers dwindle as a result of persecution.

While skimming the Newseum’s new exhibit on LGBTQ civil rights, Sakurai rattled off bits of transgender history and policy. The pastel-colored display featured prominent figures in the movement, including San Francisco Supervisor Harvey Milk and activist Frank Kameny. Sakurai, who is 38, also has an important place in history. Two years ago, they became the first person in the United States to officially receive a gender-neutral driver’s license. Instead of an “M” or an “F,” Sakurai’s gender is designated with an “X.” Since Washington, D.C., became the first jurisdiction in the country to offer those licenses in June 2017, other states and cities have followed. Currently, at least 13 states and two cities offer nonbinary gender options on either driver’s licenses or birth certificates. More states are expected to join them this year. Nearly 100 million people, about a third of the country, now live in a place that allows identification that’s neither male nor female.

The growing national conversation on gender identity is a divisive and controversial policy issue. Much of the debate up to this point, including over proposed “bathroom bills” in North Carolina, Tennessee, Texas and elsewhere, has centered on individuals who fall within society’s existing gender structure -- transgender men and transgender women. Redefining that structure altogether to include nonbinary identities may be a more ambitious battle.

When it comes to issuing IDs, states should prioritize biological accuracy over personal gender preference, say opponents of the efforts to expand gender definition. “Eye color, hair color, height, weight and sex: These are all listed on a driver’s license because these physical characteristics can be independently verified by physical evidence, even if a person is unconscious,” Greg Burt testified to the California Senate in 2017. Burt, who works for the California Family Council, was arguing against a proposed bill to allow for nonbinary government identification. The bill, he said, “advances a falsehood; that being male or female, or no gender at all, is a choice each person must make, not a fact to celebrate and accept.” That bill went on to become the Gender Recognition Act, which was passed and signed into law later that year, making California one of the easiest states in which to change gender on a birth certificate or a driver’s license. 

For California and the other states and cities that have opted to allow nonbinary designations, adding an “X” to these documents is only the beginning. Legally recognizing gender as a spectrum sets up a cascade of tough policy questions. Schools, sports, prisons, courts, health care and human services benefits are all gendered systems. Some states, including California and Oregon, are beginning to address those needs; however, they still face challenges.

“Folks are going to start to see people with these IDs, whether it’s someone traveling through [a jurisdiction] or someone who has moved there from another state,” says Shawn Meerkamper, staff attorney with the Transgender Law Center. “There are just so many systems that are currently designed to only have two options for gender markers. More data systems need to catch up.”

 


Some states have begun to consider how allowing nonbinary IDs will affect other parts of government, like prisons, that are traditionally split into male and female facilities. (AP)

 

Finley Norris first heard about the concept of nonbinary gender as a junior at Ball State University in Indiana. The term fit, Norris says. “It felt good.” After college, they decided to pursue a legal name and gender designation change. 

Step one was getting a court order. Norris presented a judge with supportive letters from a therapist and two medical doctors, and the judge ruled in their favor. Norris then applied for a gender-neutral birth certificate. With the new certificate in hand, Norris could then apply for a new driver’s license. The Indiana Bureau of Motor Vehicles initially denied Norris’ request due to the computer system’s inability to physically make the change. Norris kept pushing with the assistance of a local law firm, and the BMV ultimately updated its computer software. 

This March, after a year of effort, Norris became the first person in Indiana to receive a nonbinary license. “It was kind of instant validation,” Norris says. “I was so excited to have that ‘X,’ because I wanted to just show everyone: ‘Look, I am real. See, this is proof right here.’” 

Only about half a million Americans right now identify as nonbinary. But that number may rise as attitudes about gender change. In California, just over 1,000 people have been issued nonbinary licenses since the state began offering them this January, and more than 80 have altered birth certificates.

From an administrative standpoint, it’s relatively easy for a state to add an “X” option for government documents. It mostly entails software updates, as in Indiana, and retraining staff. The California Department of Motor Vehicles estimates one-time costs of $880,000 and ongoing costs of $45,000 a year to offer nonbinary licenses. Oregon DMV spokesman David House says that cost estimates in his state were low enough to absorb into a larger update project. “We are constantly working on all kinds of changes,” House says. “[Gender markers] join a pipeline of many ongoing upgrades, new laws and administrative changes. When you put it all in that perspective, this was a pretty light load.”

But the requirements to obtain these IDs vary from state to state. Indiana, for example, requires an amended birth certificate or certification from a physician. Oregon and California, however, each permit new gender designations based on self-attestation. At the other end of the spectrum, some states allow only male or female markers on IDs, and they may require proof of hormone therapy or sex-reassignment surgery, which can cost more than $100,000.

This range in regulations can overlap in confusing ways. Just ask Charlie Arrowood, who lives in New York and works as a lawyer with Transcend Legal, an advocacy group. Last fall, New York City began issuing gender-neutral birth certificates, and Arrowood obtained one. New York state, meanwhile, only offers “male” and “female” options for identification, as does the federal government. Arrowood has been able to change state documentation but not federal IDs. As a result, Arrowood is now listed as “female” on their passport and Social Security records, “male” on their driver’s license, and neither gender on their birth certificate.

“As far as the ‘X,’ nobody knows what’s going to happen,” Arrowood says. In New York City and beyond, LGBTQ advocates worry that mismatched documents could pose problems for things like applying for loans, opening bank accounts, job hunting, voting -- even receiving benefits such as Medicaid coverage. The New York state Department of Health says it is working with New York City to accommodate the gender designation law and ensure Medicaid coverage will not be interrupted for nonbinary recipients. 

These complications extend to other states. Arkansas, Colorado, Indiana, Maine, Minnesota and Utah all offer nonbinary IDs, but as of April their marriage forms still required applicants to select their gender as either male or female. In California, San Diego resident Van Ethan Levy says they continue to face difficulties obtaining services even after receiving a nonbinary license and birth certificate. Levy recalls arguing with hospital staff in the emergency room over using a neutral gender marker for their records. In February, the San Diego Blood Bank said Levy would not be able to donate blood without completing a form with two gender-specific questions. An official from the blood bank told local reporters “these questions pertain to the safety of the donor as well as the safety of the blood products.”

For Levy, it highlights potential challenges with implementing gender-change policies. “Even though legally things are changing, where is the training on how it’s being implemented? There’s no accountability,” Levy says. “The state has to cultivate awareness about how much gendered language is used. It’s a matter of educating people.” 

Some states, though, are starting to consider the long-term implications of recognizing nonbinary residents. Oregon, California and the District of Columbia have begun updating other government documents such as marriage forms. When it comes to criminal justice, the Oregon Department of Corrections accommodates transgender, nonbinary and intersex inmates on a case-by-case basis, officials say. The agency created a Transgender and Intersex Committee specifically to make housing determinations. Transgender, nonbinary, and intersex inmates are initially placed in the infirmary at the state’s intake center. The committee then evaluates medical and mental health history, as well as personal preference and safety to make housing placements. Transgender and intersex people typically stay with the general population in either a male or female facility to avoid isolation, officials say.

In addition to jails and prisons, schools have become a hot spot for gender identity debates. In Minnesota, a state that offers gender-neutral licenses, the Minneapolis public school district is making a concerted effort to provide support for LGBTQ students. The district’s Out4Good team works with teachers and administrators across the area to accommodate students with gender non-conforming identities. Some adjustments have no cost, says Out4Good coordinator Jason Bucklin. This includes shifting how teachers use gendered terms when conducting class lessons or assigning work. Other changes are more structural. The school district recently completed an 18-month update of its student database to allow a student’s identity records to carry over in cases of school transfers. It also allows for more privacy, Bucklin says, by only sharing identity information on a need-to-know basis. Out4Good also works with other parts of government, including the parks and recreation department, to help provide some uniformity for students throughout the school day and afterschool activities. 

 

 

Gender policy is in a time of transition as well as uncertainty. Over the past two years, as some jurisdictions have moved to expand their gender designations, others have sought to reaffirm gender as only male or female. Just a week after the Indiana Bureau of Motor Vehicles began issuing nonbinary licenses in March, the state House transportation committee voted 10-3 in favor of an amendment to restrict gender changes for IDs by increasing the amount of required documentation. A separate amendment was floated that would define gender as only male or female, effectively undoing the BMV’s new nonbinary licenses. Allowing people to mark “X” is impractical, said Rep. Matt Hostettler, who authored the gender-definition amendment. “‘X’ is no type of identification, so they’re effectively leaving that portion unanswered,” Hostettler told a local reporter. “Indiana code asks for those things to be answered. [The amendment] would make it so there is an answer one way or another.” Nonbinary licenses, he said, undercut the entire purpose of state-issued identification. “I’m just trying to find a way that this can be clarified,” Hostettler said. “I believe I understand why people might do that, but how does someone who’s looking at an ID card use that to help identify you?”

Both amendments have been shelved for now. Similar legislation introduced in Utah was also pulled by the sponsoring lawmaker. 

In February, Shige Sakurai testified before the Maryland House in support of a bill to allow gender-neutral driver’s licenses. They spoke about life as a nonbinary individual and discussed how others are considering leaving the state for Washington, D.C., where they can obtain their desired ID. The legislation faced pushback from some lawmakers. (The Senate minority leader joked, “Are we going to call them X men?”) But the measure passed by veto-proof majorities, and is expected to become law. 

The subject of gender neutrality is controversial and complicated. Making the decision to allow “X” markers requires more than just a singular law or administrative shift; it necessitates a series of systemic changes in agencies at all levels of government. 

Sakurai knows that changing ID laws is only a first step. Right now, there’s a series of bureaucratic gaps within and among states, and jurisdictions will need to determine how to process the growing number of nonbinary documents. “I think there’s much more work to be done. There’s a question of, Why do you even need to ask someone their sex?” Sakurai says. “For years, transgender people have changed different markers, so all of those could be your legal sex. If these gender markers are not consistent, then what are they being used for?”

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