Will Non-Binary Gender Options on State IDs Reduce Discrimination?

More states are including a gender option that isn't male or female on IDs. Advocates believe the changes might have mixed effects.
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San Francisco City Hall is lit up in rainbow colors following Gay Pride on Sunday, June 26th, 2016.

San Francisco City Hall is lit up in rainbow colors following Gay Pride on Sunday, June 26th, 2016.

A wave of states have begun introducing a non-binary option for gender identity on licenses. Oregon became the first state to offer the non-binary option on state IDs in 2017. In turn, states across the country have implemented changes to the way that gender is presented on state-issued identifying documents such that transgender, gender non-conforming, and intersex people can more accessibly obtain accurate documentation.

The above chart, based on data from the Intersex & Genderqueer Project, a non-profit advocacy group, includes states that have laws in place formally instituting a non-binary option for licenses and birth certificates. The chart excludes states that have issued non-binary state IDs, but not licenses or birth certificates, such as Utah.

For some, the recent changes are lauded as a victory for non-binary individuals, who are now able to legally opt out of the state-reinforced gender binary that has always offered only two options: male or female. When gender on identifying materials doesn't align with the way a non-binary person presents, it can leave them at risk for discrimination. When their listed gender on their ID is outdated, some non-binary people might be denied service, or have difficulty, say, getting through airport security.

"I'm glad that finally non-binary people are recognized, that we exist," Alon Altman, a genderqueer individual and one of the first people in line to get a new ID in California in January, told the Guardian.

While the new, non-binary option—denoted in most states with an "X" in place of "M" or "F"—gives gender non-conforming individuals at least one option to have their gender identity recognized, to an extent, by the state, not all non-binary people want to opt into "X" as a legally recognized label. Some are concerned the "X" designation will actually make them a target for discrimination.

What Does Non-Binary Mean?

Non-binary people are those whose gender identity doesn't align with the designation of either male or female, according to the the National Center for Transgender Equality. Some non-binary individuals identify as a "blend" of the two genders, and others don't identify with either male or female.

Non-binary people may use other terms for identification, such as genderqueer, which, like "non-binary," is a broad, sweeping term, indicating, generally, an experience outside of the gender binary. Within these umbrella terms are more specific identities, including agender (without a gender identity), and bigender (experiencing two gender identities, not necessarily male and female, either simultaneously or alternating).

Being non-binary doesn't mean an individual is intersex or identifies as transgender, although there are non-binary individuals who do also identify as intersex. Additionally, being non-binary doesn't relate to one's sexual orientation.

The way non-binary people identify—and present themselves—varies widely, which can sometimes lead to individuals incorrectly being mistaken as binary when they present in what is perceived as traditionally "male" or "female" clothing. A common misconception is that non-binary folks always present as androgynous, explains Shaun Glaze, associate director of the Seattle Nonbinary Collective, an advocacy group that seeks to connect gender non-conforming and queer individuals in the Seattle area.

How Non-Binary IDs Can Both Dismantle and Reinforce Discrimination

Misgendering is often reinforced by the state: Identifying documents such as birth certificates, licenses, and passports all have traditionally only offered male and female gender options. Of course, these documents remain important for navigating everyday life: Employment, education, housing—and applying for other IDs—all often require some sort of government-issued identification.

For non-binary, intersex, and trans people, misgendered, outdated information on IDs often leads to frustration, exclusion, and discrimination. Non-binary options on IDs can also be the preferred option for some intersex and trans individuals as well.

For LGBT people of color in particular, the standards for identifying oneself in daily life are often high. "I'm a black—very visibly black—queer, non-binary parent who has a child who people sometimes racialize ambiguously," Glaze says. When Glaze travels with their children, especially internationally, they need to have extra documentation easily ready to display to airport security. The standards are higher "because we don't necessarily 'look like' what people are expecting a family to look like," Glaze says. "It's also necessary to demonstrate to the state or to some other institution that we belong together."

emem obot, the program assistant and organizer for Brave Space Alliance, an LGBT center on the south side of Chicago, describes the recent wave of non-binary options on identifying documents as "beautiful," and an important way to validate oneself legally. obot, a black, non-binary individual, worries, however, that a non-binary "X" could actually put gender non-conforming folks further at risk, particularly with law enforcement: "I know a lot of people are elated about this and I am too, but when it comes to situations with law enforcement I'm trying to find how that can be helpful."*

According to a survey by the Williams Institute on Sexual Orientation and Gender Identity Law and Public Policy, a research institute, 21 percent of LGBT and HIV-positive respondents reported encountering hostilities from police, 14 percent verbal assault, 3 percent sexual harassment, and 2 percent physical assault. These rates of abuse, neglect, and mistreatment were reported at higher rates among respondents of color, trans, and gender non-conforming individuals, according to the report.

Sometimes, the victory of a gender change on an identifying document such as a license actually leads to further complications—and possibly more institutional discrimination—down the road. Even if you are able to update some documents, like a birth certificate or a license, other important documents will almost always inevitably remain without these updates. In turn, this makes presenting a cohesive, updated set of documents to various institutions virtually impossible, ultimately leaving trans and non-binary people more vulnerable to discrimination, Glaze says. For example, social security numbers are associated with a gender—and when that gender doesn't match the gender listed on other documents, it can lead to health-care insurance denials and exclusions.

In day-to-day life, having a non-binary option on IDs may play an important role in the safety of non-binary and transgender people completing routine activities. Many activities require an ID, like going to a club, purchasing alcohol or some medications, or sometimes, using a debit or credit card. In a study published by the NCTE in 2015, nearly one-third (32 percent) of respondents—transgender and gender non-conforming Americans—reported they have been verbally harassed, denied benefits or service, asked to leave, or assaulted after showing an ID with a name or gender that did not match their perceived gender presentation.

Whether having a non-binary ID would mitigate such discrimination remains unknown. In some instances, it may prevent discrimination (especially at the state level), but in others, greater visibility for non-binary folks may incite further harassment, obot cautions. "When it comes to those interactions and putting an 'X' on my ID, it feels like that might be more of a target than anything."

Anticipating such concerns, adding a non-binary "X" wasn't the only option that genderqueer people proposed in Washington when the state considered the issue. "There's a lot of conversation about 'X' being the designation because, for some people, it feels like opting out—or like opting in to another option that isn't just 'M' or 'F,'" Glaze says. "For other people the 'X' feels really othering."

Some non-binary people supported legislation that would allow individuals to completely opt out of putting a gender on their birth certificates altogether. Currently, Washington State only allows gender changes on birth certificates to be male, female, or "X."

"An 'X' to me just feels like a marking that I'm not really interested in taking on," obot says. "I don't like how gender needs to always be defined and brought into our spaces and interactions. And I really don't like the idea of having this new marker in a way that is also not respected and treated with the same authority and care as the other two, even though there are power discrepancies in those two as well."

Continued Barriers to Access

Even if a state has issued a non-binary ID in the past or allows for an "X" option, it is not easy for gender non-conforming people to obtain one. Changing one's gender on identification is a logistically arduous—and sometimes expensive—process: In Minnesota, for example, updating an ID requires presenting four forms of documentation, and in Washington State, one must present a different ID with the updated gender designation, or a form filled out by a physician. In Washington, too, depending on the form of identification, costs for an updated ID can range from $20 to $90.

obot is particularly concerned about cost. They say, "It's just a cost that I can't actually take on right now." For people who are just trying to meet basic needs, any sort of price for a gender change on identifying documents is out of the question, obot says. Research suggests that economic insecurity including housing instability, low-wage earning potential, and unemployment and under-employment, are experienced at higher rates among the LGBT community.

Glaze explains that additional barriers for non-binary people include access to changing state IDs when incarcerated (according to research, LGBT people are incarcerated at higher rates); acquiring parental consent for non-binary minors, who may be kicked out of their homes for their gender identities (LGBT people have a 120 percent higher risk of reporting homelessness); and finding notaries who are "culturally competent."

Further, if you are a non-binary parent, such as Glaze, it is difficult—and often not possible—to update your gender information on your child's birth certificate. Updating gender on marriage certificates is also often not available.

There's a growing conversation about instituting non-binary identification options at the federal level. But the rule-making process and organizing are more complicated, and less accessible, at the national level, Glaze warns, which often leads to marginalized identities being left out of the conversation.

*Update—June 17th, 2019: This article has been updated with the correct spelling of emem obot's name. 

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