If history is any lesson, the groundwork for a non-binary revolution is being laid now.
One of the most consequential moments in the transgender rights movement to date happened years before the so-called “Transgender Tipping Point” of 2014: In 2010, the U.S. State Department began allowing transgender people to change the gender markers on their passports from “M” to “F” or vice versa with a letter from a doctor rather than requiring sex reassignment surgery.
As The Daily Beast has previously reported, the Social Security Administration followed suit a few years later and state laws around drivers’ licenses began falling in line as well.
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More and more transgender people were able to easily obtain appropriate government identification—a crucial component of a gender transition in a society where we are asked to show ID everywhere from airports to bars to job applications.
Now, “M” and “F” could soon be joined in more jurisdictions by a third gender marker, “X,” for those intersex, genderqueer, and non-binary people who identify as neither male nor female.
In fact, as of January 2018, the entire West Coast of the United States offers a non-binary gender marker option on some form of government identification—and advocates say more states will follow, piece by piece.
“In some states we need the legislature to make it happen, but in some we don’t,” Toby Adams, executive director of the Intersex and Genderqueer Recognition Project (IGRP) told The Daily Beast. “It’s different from state to state.”
Indeed, every state that has added a non-binary gender marker so far has used slightly different procedures to do so.
In June 2017–the same month that Washington D.C. began allowing “X” on driver’s licenses, Oregon became the first state in the U.S. to do so after state agencies, helped along by local advocates, fell in line with a court order issued on behalf of a non-binary person.
That administrative avenue, Oregon LGBT advocates say, should give some hope to people in less progressive parts of the country.
“I think what’s really exciting about the non-binary gender marker work is it didn’t happen legislatively; it happened through partnerships with state agencies like the Department of Motor Vehicles and the Department of Transportation,” Amy Herzfeld-Copple, the co-executive director of Basic Rights Oregon told The Daily Beast, adding that Oregon has provided a “blueprint and a toolkit” for activists outside the West Coast to reach out to individual state agencies and gauge their receptiveness to change.
In October 2017, California offered a different road to “X” with SB 179, a piece of legislation co-authored by state Senator Toni Atkins and signed into law by Governor Jerry Brown that allowed for a non-binary gender markers on birth certificates and driver’s licenses.
This law followed a February 2017 court order granting a legal non-binary gender to a client of the Oakland-based Transgender Law Center.
In a statement, Senator Atkins told The Daily Beast that LGBT rights have “always been among [her] top priorities” and that she is “in regular contact with advocacy organizations that work on equality issues.”
But the legislation, she adds, was also driven by personal experience with transgender and gender non-conforming people.
“At the same time, I am friends with several families who have transgender children,” Sen. Atkins said. “Growing up transgender in this world is hard enough for a young person, and so I am always mindful of their struggle, and if I can help make life just a little bit easier and less stressful for these kids and their families, I will take that opportunity every time.”
LGBT advocates like Transgender Law Center attorney Shawn Meerkamper, a non-binary person who uses “they” as a personal pronoun, predict that California’s leap toward non-binary inclusion will have a ripple effect throughout the country.
“California being the most populous state and the sixth biggest economy in the world—that certainly is going to have some amount of influence,” they told The Daily Beast, adding that “other places are going to have to catch up, even if only so that they can still be interacting and sharing information.”
Most recently, the Washington State Department of Health in January opted to add “X” as a gender marker on birth certificates after a coalition of advocacy groups, including Gender Justice League, pushed for the change.
Given the fact that over 50 million people live on the West Coast and in Washington D.C., it is only a matter of time before the non-binary “X” begins appearing elsewhere.
“Other states will have to grapple with the fact that there is an increasing number of people from the West Coast and D.C. who have ‘X’ as a gender marker on their identity documents,” Danni Askini, executive director of Gender Justice League, told The Daily Beast.
The emerging stories of intersex non-binary people who have changed their gender markers prove that the addition of an “X” is not just a minor administrative footnote; it tangibly benefits those people whose genders are not best described by an “M” or an “F.”
Adrian A. Roberts, a non-binary DJ who by the IGRP’s count became the 11th Californian to become legally non-binary last spring, told the advocacy group that they travel frequently and often get a “double take” from TSA agents after displaying ID.
“A simple non-binary ‘X’ as my gender marker would immediately explain everything they need to know,” Roberts told IGRP, in press materials provided to The Daily Beast. “Besides making my life easier, it would also legitimize my transgender identity in the eyes of the government, as well as society in general.”
Indeed, for many intersex, genderqueer, and non-binary people, a small smattering of states allowing an “X” on a handful of documents is nowhere near enough to reduce instances of discrimination and misgendering.
Jonny Violette Skye, an intersex person who also identifies as non-binary obtained a matching Oregon driver’s license but still faces widespread problems.
“Every day, I am incorrectly labeled not only on legal documents at the local, state, and federal level but by businesses who have not yet been pressured by enough of their customers to change, including banking institutions, the medical industry, the utility companies, airlines, cell phone carriers, the list goes on,” Skye told IGRP.
For many transgender people, including those whose lives fall outside the binary, the United States remains a patchwork of policies around identity documents—even as more sweeping progress around non-binary inclusion gets made on the international stage, in Canada and the United Kingdom.
That’s why IGRP and other advocacy groups remain focused ons spreading the “X” to as many states as possible.
Toby Adams told The Daily Beast that Massachusetts, New York, New Jersey, and Maryland all have pending legislation around non-binary options on government identification—and that advocacy in Rhode Island and New Hampshire “will probably move forward within the next year.”
“Every DMV and Vital Records agency we’ve talked to has said, ‘Yes, we want to do this, we know we need to do this,’” Adams said.
If a pending Lambda Legal lawsuit against the U.S. State Department gets resolved in favor of an intersex person named Dana Zzym, then we could start seeing non-binary gender markers on U.S. passports in the future as well.
For transgender people who do identify as male or female, passport gender marker changes have been a gateway to widespread policy reform, as the last eight years have proved; for those outside the binary, such a change would be like rocket fuel for a movement that is just getting started.
