Leslie A. Farber
Is Non-Binary Gender Identity Recognized Legally?
In many cultures and societies, the classification of gender is a binary concept. This means it has two distinct parts, in this case male and female. Genders that don’t fall into either the masculine or feminine category are often described as “non-binary”.
Gender Identity – One’s sense of being female, male, or something else, regardless of whether this conforms to the person’s sex assigned at birth.
#Genderqueer - Commonly defined as denoting or relating to a person who does not subscribe to gender distinctions, but identifies with neither, both, or a combination of male and female genders.
Non-binary - Similar to genderqueer, some define non-binary as a gender identity that does not fall into the category of male or female. This has existed in many cultures around the world through out the ages.
#Intersex - A general term used for a variety of conditions in which a person is born with a reproductive or sexual anatomy that does not fit the typical definitions of female or male.
Historically, the choice of gender on official or legal documents in the United States is almost always limited to two choices, male or female. This poses challenges for those who don’t identify with any gender or whose gender is different than either male or female. However, courts and state and federal administrative offices are beginning to acknowledge the evolving definitions of gender identity.
In September 2018 a federal court ruled the U.S. State Department could not deny a passport to a Navy veteran who identifies as neither male nor female. Colorado resident Dana Zzyym sued the federal government for refusing to issue a passport in 2014 because it required an applicant to denote either male or female on applications.
The Lambda Legal Defense Fund, which filed the lawsuit on Zzyym’s behalf, noted that at least 10 other countries issue passports with gender markers other than female or male, most using an "X" gender marker recognized by the International Civil Aviation Organization, which sets travel document standards.
U.S. District Judge R. Brooke Jackson in Denver ruled the State Department exceeded its authority under the Passport Act of 1926, and barred the department from relying on its binary-only gender marker policy to withhold a passport. The judge stated that the Act “does not include the authority to deny an applicant on grounds pertinent to basic identity."
While the ruling applies only to the specific case in question, it is the latest example that the U.S. is moving closer to adopting gender designation and identification protocols that are consistent with some states and international countries. California passed the Gender Recognition Act in 2017, becoming the first state to allow residents to choose or change gender on a birth certificate to be female, male, or non-binary. It is also one of three states, along with Oregon and Washington, D.C., that allow gender-neutral drivers licenses.
In 2016, in what was considered a ground-breaking decision, a judge in Oregon granted a petition allowing a person to legally choose neither sex and be classified as non-binary. The petitioner seeking the new designation, Jamie Shupe of Portland, is a retired United States Army sergeant born with male anatomy who had successfully battled the military to be given discharge papers that reflected the female sex. After Shupe decided that they did not identify with either sex, the judge granted a petition to change their gender from female to non-binary.
At the time, some U.S. cities and states permitted residents to abstain from declaring a gender for IDs. Advocates and legal experts believe the ruling was the first of its kind in the country. It was a historic step toward government recognition of non-binary members of the community and ensuring they have access to identity documents that accurately reflect their gender identity.
If you or someone you know is experiencing discrimination based on gender identification, please contact our office at 973-509-8500 x213 or LFarber@LFarberLaw.com. The laws in this area are constantly changing, and we can review the facts of your case and offer specific legal advice.
The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.