Earlier this year, the Biden administration announced that passport applicants would be allowed to self-select the gender marker on their passport. Additionally, applicants would not have to give documentation from a medical provider if their self-selected gender marker differs from the gender marker listed on their other identification documents. The State Department also declared that it is working on a gender marker for non-binary, intersex and gender non-conforming people applying for passports.
This announcement follows a nationwide trend of revisions to policies regarding gender markers on driver’s licenses and other identification documents. As of August 2021, 20 states and the District of Columbia allow “F,” “M,” and “X” gender markers on their driver’s licenses, and 22 states and Washington, D.C. allow for residents to change the gender marker on their driver’s licenses without providing medical documentation. These policy changes have helped many trans, non-binary, gender non-conforming and intersex people access accurate driver’s licenses, but these communities still face a variety of challenges related to identification documents. As policies regarding gender markers continue to change, we should question why these barriers exist in the first place, and if gender markers should be required on identification documents at all.
Current Challenges of Gender Markers on IDs
The challenges that trans, non-binary, gender non-conforming and intersex (TNBGNCI) people face related to identification documents are multifaceted. Not only do these communities face barriers to accessing accurate identification documents, but they also face discrimination, harassment and violence when presenting their identification documents. In the 2015 United States Transgender Survey (USTS), only 12 percent of respondents had an accurate gender marker on all of their identification documents, and 67 percent of respondents reported that none of their identification documents accurately reflected their gender. In addition to the financial barriers associated with changing gender markers, many trans and non-binary respondents reported worrying that changing their gender marker would out them as trans or non-binary and that this would negatively impact their safety. This is unsurprising as the USTS also reported that 32 percent of respondents who presented identification documents that did not match their perceived gender were harassed, denied service, asked to leave the premises or assaulted.
Unfortunately, whether or not someone experiences violence is less about if the gender marker on their ID accurately identifies their gender, and more about how their gender is perceived by the person to whom they present their ID. For example, if a trans man changes the gender marker on his driver’s license to “M” to accurately represent his gender, but if other people usually perceive him as a woman, there is a high likelihood he will experience discrimination when presenting this ID. Likewise, if a trans woman has not been able to change her gender marker to “F,” she may be fired from her job when presenting an identification document with an “M” gender marker. Non-binary people may have to carefully consider whether to elect to have an “X” gender marker on their identification documents because doing so will almost certainly out them as non-binary to anyone who looks at their ID. In fact, “X” gender markers may actively put these communities at more risk of experiencing violence.
If our objective is to keep TNBGNCI people safe from discrimination, harassment and violence, gender markers on IDs will not help us achieve that goal.
Gender Markers on IDs Are Ubiquitous — But Unnecessary
While gender markers are ubiquitous on identification documents in the United States, it is unclear why they are required on such documents. As soon as a baby is born, they are issued a birth certificate with an assigned gender, even though there is “[no] federal law or international standard [that] requires that U.S. birth certificates [to] list gender.” Driver’s licenses and other identification cards that are federally recognized under the REAL ID Act require gender markers, but there is no explanation as to why this is necessary. As for passports, “[U.S.] passports did not include a [gender] marker at all [before 1976], and the International Civil Aviation Authority only developed standardized passport regulations requiring a [gender] marker in 1980,” according to Neela Ghoshal, associate director in the LGBT Rights program at Human Rights Watch. The International Civil Aviation Authority (ICAO) considered removing gender markers from passports in 2012, and recognized “the tangible benefits of not requiring travel documents to display the holder’s gender.” However, ICAO ultimately decided to continue to require gender markers on passports due to logistical issues with border operations and border control software.
Despite ICAO’s recognition of the benefits of genderless passports, it falsely asserts that gender markers provide an uncomplicated route to verifying one’s identity. The 2012 ICAO review of gender marker requirements on passports stated that gender markers “[help] border officials to verify an identity by doing a quick visual check of the gender on the travel document compared to the holder.” This logic assumes that all people of a particular gender have universal and easily identifiable characteristics, and that all border officials will have the same interpretation of someone’s gender. This means that border officials rely on gender stereotypes to determine whether someone is a man, woman or non-binary. Consequently, this practice has a negative impact on any person who does not neatly fit into the gender stereotypes associated with the gender marker on their passport. Relying on the fluid category of gender as a determining factor for verifying someone’s identity is nowhere near as helpful or as accurate as identifying someone by more concrete characteristics, such as their height, eye color or date of birth. And even more importantly, the enforcement of identity verification and state-sanctioned borders serve as violent structures in and of themselves, and further marginalize people who are deemed as “threats” to the state.
In an article for Time, Jacob Tobia, a non-binary actor, writer and producer, rightfully questions the idea of using gender markers to prevent identity fraud. They also point out the issues with relying on the gender marker on someone’s ID in a medical setting, and how someone’s gender marker shouldn’t be used as a proxy for their genitalia, reproductive organs or any other part of their medical history. Tobia asks what “compelling state interest” requires gender markers on IDs, and ultimately concludes that, “[other] than facilitating discrimination against transgender people, [they are] hard-pressed to identify the purpose” of gender markers on IDs.
State and federal governments have yet to provide a legitimate and logical reason as to why we should continue to include gender markers on identification documents. Their focus on self-attestation and providing “X” gender markers fails to address the harm that happens to people who cannot access these changes, and those who would still fear for their safety even if they could change the gender marker on their identification documents. Instead, state and federal governments should work to abolish gender markers on all identification documents, and invest in community-orientated solutions for the safety of TNBGNCI people across the country.
The Nationwide Movement for Genderless IDs
In response to advocates’ concerns about gender markers on IDs, an increasing number of cities and municipalities across the country have started to offer genderless IDs. As I previously reported, the cities of Oakland, Richmond and San Francisco, California; Little Rock, Arkansas; Poughkeepsie, New York; New Haven, Connecticut; and Detroit, Michigan, do not ask municipal ID applicants for their gender at all.
The City of Poughkeepsie’s 2019 law creating a municipal identification program acknowledges that, “transgender and [gender non-conforming] individuals may have particular challenges in obtaining identification cards that reflect their gender identity, due to stigma and burdensome administrative policies for changing gender on other identification documents … it is our intention to make the program affirming to [these] residents by not requiring a gender selection.” By not including any gender markers on their municipal IDs, Poughkeepsie and other cities that have taken this step remove any financial and administrative barriers associated with changing gender markers; do not require trans, non-binary, gender non-conforming and intersex people to out themselves at any point in the process of obtaining an ID; and avoid singling out TNBGNCI people who elect to have an “X” gender marker or no gender marker. These cities demonstrate that identification documents can be perfectly valid without any gender marker, and provide a blueprint for removing gender markers on all other identification documents.
Given the countless issues with gender markers on identification documents, and a clearly identifiable solution, state and federal governments should redirect their resources towards removing gender markers on all identification documents. In the interim, they should continue to create policies that allow people to self-select their gender marker, and not require any medical or legal documentation to approve someone’s choice. As for “X” gender markers, governments should present them as an option that could mean non-binary, gender non-conforming or intersex, as well as an option for any person who does not want to disclose their gender on their ID.
As long as gender markers are required on identification documents, trans, non-binary, gender non-conforming and intersex people will continue to experience discrimination when presenting their IDs. Abolishing gender markers on identification documents is the only way to guarantee an end to this violence.