Legally X- The X Gender Marker

By: Avery Cordingley

15 January 2020

Legally X

In 2010, Arkansas became the first state to allow for an “X” gender designation on one’s license or state-issued ID. At the Arkansas Department of Finance and Administration, staff were instructed via an internal email that the department’s official policy was “to allow a licensee to change their gender as requested, no questions asked, no documentation required.” It wasn’t until 2018, however, that a resident took the state up on the offer to be legally recognized as non-binary on their state ID. Then Director of Communications Scott Hardin confirmed that the state’s stance had been on the books for eight years, despite having been enacted without any fanfare.

 

While Arkansas’ policies on gender markers have always been a bit murky, other states have, of late, been quite clear on the matter. In 2016, Oregon made headlines nationwide when a circuit court judge ruled that Jamie Shupe may change their legal gender designation to non-binary, becoming the first American citizen to obtain such a designation. At the time of the ruling, no policies were in place with the Oregon DMV or the State to put Shupe’s gender change to paper, but by 2019, any Oregon resident may change their gender marker to M, F, or X without being required to submit any proof of gender.

 

Oregon and Arkansas are no longer alone in allowing for an “X” on one’s license. 15 states and the District of Columbia currently allow for a non-binary “X” designation on a state ID or driver’s license. Pennsylvania, New Hampshire, and Hawaii will soon follow in 2020, Illinois in 2024. (National Center for Transgender Equality).  A further four states allow for an “X” on one’s birth certificate (Senate and General Assembly of NJ, Chapter 58). The states all differ in how easily residents can update their documents. Some allow for a self-stated gender designation, several require doctor’s notes or other proof of one’s gender identity, while a couple go so far as to require the person to petition a judge for permission to have an “X” on their paperwork.

 

Wisconsin joins the majority of US states in having no provision to allow for a third gender option on its licenses or state IDs, and no announcements about a move toward such a change. Despite this, the state has made steps over the past decade toward easing the requirements for changing the gender marker on one’s documents. In Wisconsin, a person wishing to change their gender marker on their driver’s license or other state-issued ID only needs certification from a medical or mental health professional, rather than having to show proof of surgical treatment. Wisconsin does not have a specific form the applicant needs to have filled out, and will instead need to request a note or letter from their provider. This can further simplify the process for many applicants since any health provider will suffice for this letter; some states only accept this certification from a limited range of providers.

 

While Wisconsin does not currently have anything in the works to begin allowing for a third gender option on licenses or state IDs, recent nationwide trends shed a positive light on the matter. Since Oregon’s court case made headlines five years ago, state after state has made the move to add a third gender option with increasing rapidity. More states could amend policies of their own accord, or with shifts in government, or the courts could drive the change as residents bring suit against states.

 

In summary, while currently Wisconsin has no policy allowing for a third gender on licenses and state IDs, the momentum across the country is building. It is not out of the realm of possibility for policies to shift dramatically within the next few years. A decade ago, no states had policies legally recognizing a third gender, and now, over twenty states recognize a third gender in some capacity. In time, that number is likely to increase, and, optimistically, become the standard nationwide.

 

 

Resources

How Trans Friendly is the Driver’s License Policy in Your State?

Overview of State Laws – Non Binary and Intersex

 

Bibliography

AAMVA. “Resource Guide on Gender Designation on Driver’s Licenses and Identification Cards.” American Association of Motor Vehicle Administration, September 2016. file:///C:/Users/Avery/Downloads/ResourceGuideOnGenderDesignationOnDLID_September2016.pdf.

“How Trans Friendly Is the Driver’s License Gender Change Policy in Your State?” National Center for Transgender Equality, n.d. https://transequality.org/sites/default/files/docs/id/Drivers%20License%20Grades%20Nov%202019.docx.pdf.

New Mexico Department of Health. “New Mexico Becomes Fourth State to Allow Gender-Neutral Sex Designation on Birth Certificates,” October 19, 2019. https://nmhealth.org/news/information/2019/10/?view=810.

O’Hara, Mary Emily. “‘Nonbinary’ Is Now a Legal Gender, Oregon Court Rules.” The Daily Dot, June 10, 2016. https://www.dailydot.com/irl/oregon-court-rules-non-binary-gender-legal/.

Intersex and Genderqueer Recognition Project. “Resources: Non-Binary Gender. Intersex.,” October 14, 2019. https://www.intersexrecognition.org/resources.

Senate and General Assembly of NJ. Chapter 58 (Corrected Copy), Pub. L. No. P.L. 1984, § 1, 191 (2018).

Sosin, Kate, and Nico Lang. “Arkansas — Yes, Arkansas — Quietly Begins Issuing Gender-Neutral IDs to Non-Binary People.” Into, October 16, 2018. https://www.intomore.com/impact/arkansas-yes-arkansas-quietly-begins-issuing-gender-neutral-ids-to-non-binary-people.

———. “Utah among Growing Number of States Issuing Gender-Neutral IDs.” NBC News, March 18, 2019. https://www.nbcnews.com/feature/nbc-out/utah-among-growing-number-states-issuing-gender-neutral-ids-n984326.

 

Trump Administration Proposes to Define the Term “Sex” Under Federal Law

A memo obtained by the New York Times outlines the Trump Administration’s proposal to define the term “sex” under Title IX. The Trump Administration is considering a proposal to that would narrowly define “sex” under Title IX as “either male or female, unchangeable and determined by the genitals that a person is born with.”

Title IX is a federal civil rights law that prohibits discrimination in any education program or activity on the basis of one’s sex. Covered institutions – such as schools – are prohibited, among other things, from subjecting “any person to separate or different rules of behavior, sanctions, or other treatment” on the basis of sex.” The law currently, though, does not define the term “sex.” Numerous federal courts have interpreted Title IX’s prohibition against sex discrimination to include discrimination on the basis of gender identity, thereby protecting transgender students from discrimination within educational settings. For example, transgender students within these courts have successfully used Title IX to fight school district policies that prohibit them from using bathrooms and/or locker rooms that align with their gender identities.

If the Trump Administration adopts this narrow definition of “sex,” the use of this definition could extend to other federal civil rights laws as well; thus eliminating protections under federal law for transgender persons. Additionally, this narrow definition, if adopted, would likely create some confusion, and possibly some harm, around the process of changing gender markers on identity documents (especially with federal documents).

The Trump Administration has yet to formally propose its definition of “sex,” although it is expected to later this year. Once it does, there will be a public comment period, generally around 60 days. After the public comment period ends, the proposed definition would be presented to the United States Department of Justice (DOJ) for its consideration. If the DOJ determines that the definition is legal, the definition would be approved and enforced within Title IX and possibility other federal laws.

  1. Erica L. Green, Katie Benner & Robert Pear, ‘Transgender’ Could Be Defined Out of Existence Under Trump Administration, The New York Times, Oct. 21, 2018, available at: https://www.nytimes.com/2018/10/21/us/politics/transgender-trump-administration-sex-definition.html.
  2. 34 C.F.R. § 106.31(b)(4).
  3. See, e.g., Whitaker v. Kenosha Unified School District, 841 F.3d 730 (7th Cir. 2017)

Changes on the Horizon for Trans Care and Coverage

In April, a federal court opened the door for transgender Medicaid recipients to get coverage for gender-affirming care. Although a final decision in the case is still pending, individuals who receive BadgerCare Plus or any other form of Medicaid may now be able to receive some services that were previously excluded under state Medicaid rules, including surgeries and some hormone therapy.

Wisconsin Medicaid rules have long had an exclusion for “transsexual surgery,” hormone therapy, and other types of gender-affirming care. However, there is no such exclusion in federal Medicaid law. In addition, the Affordable Care Act includes an anti-discrimination rule (also known as Sec. 1557 of the ACA) that has been interpreted to cover transgender individuals and gender-related care. In March, based on this rule and on equal protection grounds, the Supreme Court of Iowa struck down Iowa’s Medicaid exclusion for gender-affirming care. Shortly after that decision, however, Iowa Gov. Kim Reynolds signed a budget bill that reinstated the ban, in spite of the ACA’s prohibition on coverage discrimination.

In April, a Wisconsin federal court issued a preliminary injunction in Flack v. Dep’t of Health Services, the case challenging our Medicaid exclusion. The injunction covers all Medicaid recipients seeking medically necessary gender-affirming care, but there are limitations on what care is covered – the specific exclusion on surgery has been struck down, but there is no guarantee of coverage for other trans-related services, including facial feminization surgery, voice therapy, and potentially even some hormone therapies. The case is ongoing and awaiting a final decision.

Meanwhile, the Trump administration has released a proposed rule to roll back Sec. 1557 from the ACA, which would mean that insurers and providers would no longer be prohibited from discrimination against transgender patients and their care. A recent article from the Kaiser Family Foundation outlines the proposed changes and the likely impact on disparity populations, including LGBT individuals. Comments are open until August 13, 2019.

The impact of this proposed rule on cases such as Flack remains to be seen; however, TLHW will follow the cases and provide updates as they become available.