Metro Weekly

New York resident sues state for failing to offer nonbinary gender marker on driver’s licenses

Lawsuit alleges policy violates nonbinary people's right to equal protection under law and their freedom from compelled speech

new york, nonbinary, gender marker, license
Sander Saba – Photo: Lambda Legal

Lambda Legal has filed a lawsuit on behalf of a nonbinary transgender New York resident who is seeking an accurate New York driver’s license that accurately reflects their gender identity.

Sander Saba, a 25-year-old New York University Law School graduate, is protesting a state policy that categorically prohibits nonbinary individuals from obtaining an accurate driver’s license that reflect their gender identity, instead forcing them to choose either “male” or “female” as a gender marker.

“My request is simple — to have a driver’s license that matches my identity,” Saba said in a statement. “It’s demeaning to be forced to carry identity documentation that is inconsistent with my identity. The State of New York should respect who I am, recognize me as nonbinary, and issue me an accurate driver’s license.”

Saba currently has two identity documents with accurate “X” gender markers: their New York City birth certificate and an earlier driver’s license from the Commonwealth of Pennsylvania. Under New York State law, residents must exchange an out-of-state license for a New York one if they intend to become a full-time resident.

The lawsuit, filed in U.S. District Court for the Southern District of New York, alleges that the state’s policy prohibiting nonbinary people from obtaining documentation with an accurate gender marker violates Saba’s right to equal protection under law, and infringes upon their free speech rights by forcing them to state a gender identity with which they do not identify. Saba’s lawyers also argue the policy violates New York’s human rights law, which prohibits discrimination based on a person’s gender or gender identity.

“By prohibiting nonbinary people from obtaining a driver’s license with an accurate gender marker, the State of New York is depriving them of an essential government identity document and compelling them to carry untruthful documentation about who they are,” Carl Charles, a staff attorney at Lambda Legal, said in a statement.

“Studies show that having inaccurate identification documents exposes nonbinary and transgender people to discrimination, harassment, and violence. By prohibiting nonbinary people from having accurate driver’s licenses, one of the most commonly used and accessible forms of identity documents, New York is limiting their opportunities to fully participate in society and causing ongoing harm to their well-being.”

See also: Transgender people with IDs that match their gender have better mental health, study says

In 2019, New York City changed its law to allow nonbinary people to correct the gender marker on their birth certificates, and the state Department of Health began offering a nonbinary gender marker on birth certificates last month.

The state also recently changed its policy to allow transgender minors to obtain accurate birth certificates in response to a lawsuit by a transgender boy who was born in Ithaca but now resides in Texas — bringing it in line with its 2014 policy allowing adults to do the same.

“Possessing accurate identification documents is essential to everyone’s health, economic and social well-being, but particularly for marginalized communities such as nonbinary and LGBTQ people,” Omar Gonzalez-Pagan, a senior attorney with Lambda Legal, added.

“A driver’s license is an especially ubiquitous identification document used to verify an individual’s identity in almost every setting — including access to health care, hospitals, employment, education, housing, banking services, travel, and other government services. Denying nonbinary people documentation congruent with their gender identity undermines their ability to fully participate in all aspects of life.”

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