U.S. Department of State announced on Wednesday that it will be allowing passport applicants to self-select their gender marker — including a third gender-neutral option — without having to provide proof of gender confirmation surgery if they want to change the marker to reflect a gender transition.
In a news release, Secretary of State Antony Blinken said that the announced changes align with several executive actions taken by President Biden to demonstrate this administration’s commitment to human rights and ensure that LGBTQI+ individuals are treated equally.
“Today, I am pleased to announce that the Department will be taking further steps toward ensuring the fair treatment of LGBTQI+ U.S. citizens, regardless of their gender or sex, by beginning the process of updating our procedures for the issuance of U.S. Passports and Consular Reports of Birth Abroad (CRBA),” Blinken said.
For years, LGBTQI+ advocates have demanded for years that the State Department follow the example of several other countries and allow a gender-neutral “X” gender marker on U.S. passports, which would more accurately reflect the gender identity of intersex or nonbinary individuals. Currently, at least 10 other countries, including Canada, issue passports with a third gender option.
For the past few years, Dana Zzyym, an intersex U.S. Naval veteran has been involved in a lawsuit against the State Department challenging its policy restricting passports to gender binary options, sued after being denied an accurate passport. Zzyym, who serves as the associate director for the Intersex Campaign for Equality, was invited to attend the International Intersex Forum in Mexico City in October 2014. But when they applied for a passport, Zzyym refused to mark either “male” or “female” on the application, arguing that to pick one would be untruthful.
Even though Zzzyym provided their original birth certificate, military records, and a doctor’s note confirming their gender as intersex as proof of identity, the State Department refused to approve the application. Zzyym, enlisting the assistance of Lambda Legal, then filed a lawsuit alleging that the agency’s binary-only policy on gender markers is discriminatory.
As the case has bounced around the federal judiciary over the past few years, a judge has ruled three separate times that the State Department’s policy is discriminatory. Last year, following those victories, the 10th U.S. Circuit Court of Appeals ordered the State Department to reconsider its rejection of Zzyym’s passport application. The court noted in its decision that forcing nonbinary intersex individuals like Zzyym to pick either a male or female gender marker in the passport application “injects inaccuracy into the data.”
“A chef might label a jar of salt a jar of sugar, but the label does not make the salt any sweeter,” 10th Circuit Judge Robert Bacharach wrote in the decision. “Nor does requiring intersex people to mark ‘male’ or ‘female’ on an application make the passport any more accurate.”
In the news release, Blinken said the State Department was “evaluating the best approach” to achieve its goal of adding a gender-neutral gender marker on citizenship and identity documents, with the aim of ensuring “as smooth a travel experience as possible” for nonbinary, intersex, or gender-nonconforming individual passport holders.
“In line with the Administration’s commitment to re-engage with allies and partners, the Department is taking these steps after considerable consultation with like-minded governments who have undertaken similar changes,” Blinken said. “We also value our continued engagement with the LGBTQI+ community, which will inform our approach and positions moving forward. With this action, I express our enduring commitment to the LGBTQI+ community today and moving forward.”
LGBTQ advocates praised the department’s decision, which will impact millions of individuals in the United States, including 1.2 million nonbinary adults, 2 million transgender people, and as many as 5.5 million people who were born intersex.
“Having accurate passports and consistent ID is critical to daily life,” Rodrigo Heng-Lehtinen, the executive director of the National Center for Transgender Equality, said in a statement. “It’s necessary for travel, banking, starting a new job and school. Inaccurate IDs open transgender people up to harassment and discrimination. Reforming US passports is a common-sense way to improve the lives of transgender people. … With today’s announcements, the federal government is taking significant steps to ensure transgender Americans can more fully participate in their communities and in public life.”
According to the U.S. Transgender Survey, only 11% of respondents reported that all of their IDs matched their gender identity, while nearly two-thirds had no IDs reflecting their correct name and gender identity. Additionally, nearly one-third of those who showed an ID not reflecting their gender identity reported being verbally harassed, denied benefits or service, or assaulted.
The Human Rights Campaign praised the development, saying the issuance of gender-neutral licenses and the scuttling of proof of surgery will decrease the risk of discrimination, harassment, and violence for an already vulnerable group.
“More than a third of states already issue forms of identification with non-binary gender markers and the United States has accepted foreign passports from nearly a dozen countries — including Argentina, Denmark, New Zealand, and Canada — with a third gender option for years,” Alphonso David, the president of HRC, said in a statement. “As a leader on the global stage, the United States is now modernizing its policies and must also encourage other nations to adopt inclusive policies that support non-binary and transgender people.
“This is an important step towards achieving meaningful progress for LGBTQ equality in America, and will empower and enable millions of citizens to travel domestically and internationally with greater confidence that the United States recognizes their gender identity.”
The American Civil Liberties Union, which launched a six-figure campaign aimed at pressuring the Biden administration to issue an executive order guaranteeing accurate federal IDs, also praised the State Department’s actions.
“Improved access to accurate passports will have such a profound impact on the lives of trans, intersex, and nonbinary folks across the country,” Arli Christian, a campaign strategist for the American Civil Liberties Union, said in a statement. “Now people will be able to fill out a passport application and indicate M, F, or X — whichever is most appropriate for them. Despite a hateful wave of anti-trans legislation this year, trans, non-binary, and intersex people know who we are and we need recognition of who we are — not permission. Today’s action demonstrates an important first step in realizing a whole-of-government policy for accurate IDs.”
The American Medical Association advocated in a June report for removing gender markers from the public portion of birth certificates, recommending that data on gender be made available for medical and statistical use only.
According to the report, removing a person's sex designation from the public portion of birth certificates would have little to no impact on data collected for medical, public health, and statistical purposes.
While current AMA policy does not address removing sex from the public portion of the birth certificate, the organization does recognize that a person's assigned sex at birth may not always match their gender identity, and thus, supports "every individual's right to determine their gender identity and sex designation on government documents and other forms of government identification."
Last week, California lawmakers passed a bill that would launch a pilot program focused on tracking the gender identity and sexual orientation of victims of violent deaths.
The bill, which was approved overwhelmingly by both chambers, now heads to the desk of Gov. Gavin Newsom (D), who is expected to sign it into law.
Under the bill, the California Department of Public Health will establish a three-year pilot program in up to six counties that agree to participate, from various regions of the state -- including urban, rural, and suburban communities -- that will teach coroners and medical examiners how to identify and compile information about a victim's sexual orientation and gender identity in cases of violent death, including suicides, homicides, and instances involving deadly use of force by police.
A coalition of 20 Republican-led states filed a lawsuit earlier this week seeking to strike down Biden administration guidance issued by the U.S. Equal Employment Opportunity Commission and the U.S. Department of Education allowing transgender workers and students to use restrooms and locker rooms matching their gender identity.
Attorneys general for each of the states, led by Tennessee Attorney General Herbert Slatery, say in a complaint, filed in the Knoxville-based U.S. District Court for the Eastern District of Tennessee, that the two federal agencies overstepped their authority by embracing an overly broad interpretation of a Supreme Court decision last year in favor of transgender workers.
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