Biden administration may soon allow 'X' gender markers on all federal documents

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The Biden administration announced similar changes to U.S. passports in June. Now, advocates are pushing officials to go further and extend the policy to all forms requiring gender identification.

The Biden administration has indicated it is open to making it easier for transgender and nonbinary people to get accurate gender markers on their identification across all federal agencies, civil rights advocates said Tuesday.

Arli Christian, campaign strategist for the American Civil Liberties Union's national political advocacy department, said the administration is willing to consider adding an X option alongside the traditional M and F markers to indicate gender on identification documents for every federal agency that produces them. The federal government would also make the process for changing the gender listed on IDs less burdensome by removing certain medical requirements used in the past.

The State Department updated some of its procedures already, announcing in June that it would be offering the X option on U.S. passports and other citizenship documents. The third gender marker option will be available to everyone who wants it by the end of the year, a source within the administration told the 19th.

The X designation may be used by intersex people born with differences in their sex traits and reproductive anatomy that don't fall within the typical definitions of male and female. It may also be used by nonbinary individuals, or those who do not identify strictly as a man or woman, or gender-nonconforming individuals, whom the LGBTQ advocacy group Lambda Legal describes as "individuals whose external manifestation of their gender identity does not conform to society's expectations of gender roles."

"We don't have a promise for adding an X designation across the rest of federal agencies," Christian said during a Tuesday press event. "However, [the Biden administration is] certainly receptive ... It's only a matter of time until we're able to get the rest of the agencies up to speed."

Not all federal identification documents include a gender marker, and the ACLU doesn't believe they all need one, but in cases where the federal government decides to keep them, the group would like to see reforms.

Christian said immigration documents in particular present a "huge" opportunity for improvement. Currently, gender identification is required on permanent resident cards, visas, and border crossing cards, among other things.

Some Democratic lawmakers and advocacy groups have been supportive of the push by the ACLU, which has met with a number of White House offices and federal officials on the topic already. In May, several Democratic senators and House members wrote a letter to President Joe Biden asking his administration to enact the gender marker changes across all federal agencies. And in June, a coalition of civil and human rights groups, including the Human Rights Campaign and National LGBTQ Task Force, joined with the ACLU in signing a similar letter to the president. 

"This government-wide issue requires a timely and consistent whole-of-government approach across all federal agencies that only Presidential action can ensure," they wrote. "While many other actions are needed, or currently underway, to ensure safety, health, and equity for LGBTQI+ people—especially trans and intersex youth—this is an issue where you, Mr. President, can act decisively and immediately to improve people's daily lives."

Many transgender people say it's important to have the third marker option on federal and state IDs to enable people to avoid harassment, violence, and discrimination. A mismatch between a person's ID and their appearance, for example, could out them as transgender when they go to vote or in some cases make it more difficult for them to cast a ballot. 

"The types of harms that we have been hearing about for years at this point include people being denied services, experiencing discrimination, and being accused of engaging in fraud, even to the extent where people experience physical violence," said Malita Picasso, a staff attorney with the ACLU LGBTQ and HIV Project.

Some nonbinary people say having identification that acknowledges that they are not the gender someone else assigned to them at birth is generally affirming as well.

Aidan Hill, a trans/nonbinary person, told Vice in 2019 that the availability of an X gender marker in more government documents, such as driver's licenses and birth certificates, "has meant the world to me. 

"I feel like the state sees my human complexity rather than just a barcode," they said. "Like I can be seen as a third gender rather than asked to fill a binary because of what is in my pants."

The last trans-inclusive change to passports occurred during the Obama administration. In 2010, transgender people were allowed to change the gender marker on their passport if they had a letter from a physician confirming that they were undergoing clinical treatment for gender transition.

That treatment could include changes in gender expression, transition-related surgery, and therapy. The change meant that transgender people weren't required to get surgeries to update their gender marker as they were under the previous policy.

The ACLU advocated for an even less burdensome process, allowing transgender and/or nonbinary people to simply state their gender on official documents, the current passport standard implemented by the Biden administration.

Published with permission of The American Independent Foundation.