By: Sarah Johnson
With 2021 well on its way to earn the title of worst year ever for legislation oppressing members of the LGBTQIA+ community, we’ll take a look at some legislation that is a positive step forward. Last week, news broke that the United States was going to add a third gender marker to its passports, along with making the entire process for changing your gender on your passport more straight forward. This year, eight states have proposed legislation aimed at legalizing or improving updated gender identity markers on official ID. This movement on a national level is a meaningful step forward for many people.
Why is being able to update gender markers meaningful?
The world is slowly coming to accept that there is not just a gender binary, meaning, not everyone belongs in the standard male-female binary we have established and “accepted” within much of our society. And, that your assigned sex does not always correspond to your gender identity. People can identify as transgender, meaning an individual’s gender identity is different from the gender traditionally associated with the sex they were assigned at birth. People can also identify as nonbinary or gender nonconforming, meaning they do not identify with our standard binary choices (you can either be a male or a female) and instead fall somewhere on a spectrum. You may be thinking to yourself, so what? Why does it matter if someone identifies as a gender that is different from their sex assigned at birth? Enter identity documents.
Identity documents are the documents we use to prove our identity (think driver’s licenses, birth certificates, passports, etc.). Have you ever looked at your identity documents in depth? Ever notice how they have a field called “Sex” with a “M” or “F” depending on your sex assigned at birth? If you are not someone who identifies differently than your sex assigned at birth, this has probably never been something of significance to you. But if you are someone who identifies differently than the “M” or “F” assigned to you when you were born, these sex markers can be quite significant.
If you are transgender or nonbinary, your physical appearance may not correlate to what we as a society have typically associated with the sex marker on your ID. If you don’t “match” your sex on your ID, it can cause confusion and be a barrier to even the most common of activities. Also, some people who identify as transgender or nonbinary choose not to disclose their identity for a plethora reasons. A very common reason is transgender and nonbinary people experience violence at much higher rates than those who do not identify as transgender or nonbinary. Confusion due to sex markers on IDs can unwittingly disclose someone’s identity which can endanger their physical safety.
Attorney Megan Brodie Maier published a paper detailing how too many states make it nearly impossible to update sex markers on state-issued ID cards. States range from requiring gender reassignment surgery (Alabama) to requiring a letter from a doctor certifying their change in gender identity (Montana) to only needing to complete a simple form and pay a renewal fee (Oregon). This year, eight states have proposed legislation aimed at making this process easier within their state.
What do these bill do?
We’ll take a brief look at what these eight states have proposed to do.
Arizona SB1163, introduced in January, aims to have the accurate sex of a person’s gender identity listed on their death certificate. It states, “On being presented with a document memorializing a gender transition, a local registrar, a deputy local registrar or the state registrar shall amend the sex listed on a registered death certificate to reflect the decedent’s gender identity. A document that memorializes a gender transition includes a court order approving a name or gender change, written instructions from the decedent, a health care directive, proof of clinical treatment for gender transition or documentation of a change to the gender marker on a birth certificate, driver license, social security record or passport.”
California introduced two bills. First, CA AB218, which crossed over the beginning of June, aims to remove the public notification requirement when someone is attempting to update their records. The Bay Area Reporter describes what the current situation is: “Under current procedures, a person seeking to legally change their name is required to file a petition with the superior court of the county where they reside as part of the process to update their marriage or birth records or the birth certificates of their children. They must also publish their current name and the new name they are requesting in a newspaper in that county at least once a week for four weeks.” The second bill, CA AB439 passed the end of June. This bill codifies inclusive language to allow nonbinary and gender non-conforming Californians to be correctly identified on their death certificates.
Illinois HB0009 crossed over in April and would remove language requiring the State Registrar of Vital Records to issue a new birth certificate upon receipt of a declaration stating that the applicant has undergone treatment for the purpose of gender transition or that the individual has an intersex condition. It instead provides that a new birth certificate must be issued by the State Registrar upon receipt of a statement signed by the applicant attesting to making the request for the purpose of affirming their gender identity or intersex condition and that the sex designation on the person’s certificate should therefore be changed.
Massachusetts H3521, introduced in March and hasn’t moved since, and would allow people to choose choose X, instead of M or F, on identity documents. New Hampshire HB295, also proposed in March, states “If an individual requests a birth record reflecting a gender designation other than that which was assigned at birth, a new birth record shall be prepared to reflect a change in the individual’s gender upon receipt of a notarized certification by a licensed and qualified health care provider affirming the individual’s gender designation.”
The Gender Recognition Act, or New York S4402, was signed into law the end of June. This bill streamlines New York’s name change process by eliminating the requirement that applicants publish their personal information in a local newspaper. It also makes it easier for transgender and non-binary applicants to have their name change records sealed. Finally, it allows the addition of a third gender marker option, “X,” to driver’s licenses, non-driver’s licenses, and birth certificates.
Oklahoma HB2108 died in May, but would have prohibited state governmental entities organized within the executive branch of state government from requiring certain evidence related to surgical procedures for updating gender identity markers.
Texas proposed a bill that would allow a person born in Texas to apply for the issuance of a new birth certificate with a change to the person’s name and sex incorporated into the certificate by providing to the state registrar documentation from a physician. Part of what the statement must contain is “a statement that the applicant has undergone a clinically appropriate treatment for the purpose of transitioning to another sex”.
The National Center for Trans Equality has this great map where you can select a state and see what the laws are in that state for changing your name, changing your driver’s license, and changing your birth certificate.
Conclusion.
As someone who identifies as cisgender (someone whose sense of personal identity and gender corresponds with their sex assigned at birth), I had never noticed the sex marker on any of my IDs until this issue was brought to my attention by a friend a while ago. It is amazing that every time I do a blog like this, I find out things that my friends and others have to go through to be seen, recognized, and respected. One of the things that made my eyes almost pop out of my head is that when you want to change your name in some states, you have to get it published in a newspaper! The rule in California requiring people to post their dead name and updated name in a newspaper once a week for four weeks is ridiculous and dangerous.
Not only are these hurdles unnecessary and hurtful to people, but they also do not help serve the “interest” in preventing fraud related to ID cards. The complexity from state to state and nationally of changing your gender identity markers may mean that you have multiple IDs with differing information. If I live somewhere where I have to have had gender affirmation surgery to get my IDs changed, but I cannot yet afford it, but I can get my passport updated, my two forms of ID will differ. This article details how the Dutch government is moving away from including sex markers on national identification documents (IDs). They are doing this in response to activism highlighting the potential harms (harassment, discrimination, violence, ect.) requiring people to declare sex on documents poses.
An ACLU article has a perfect description for the importance I believe having your identity documents accurately show who you are:
A passport is more than a permit that allows you to go globe-hopping. It’s an official, government-authorized certification of your identity. While traveling abroad, it can be a lifeline if you run into trouble. So it would seem imperative that your passport truly reflect who you are. – John Knight, Senior Staff Attorney, ACLU LGBT & HIV Project
Some of this legislation is a meaningful step forward, but we still have a long, long way to go.
Cover Photo by Dainis Graveris on Unsplash
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