Gender Discrimination: Still Long Road Ahead

Oregon and D.C. now allow their residents to choose a third “nonbinary” X sex marker on their driver’s licenses. California is poised to go even further and add a nonbinary gender designation not only to driver’s licenses but to birth certificates, too.

These are bold moves, but they won’t address the gender identity discrimination that many transgender and gender non-conforming people face when it comes to government-issued IDs. This new third gender option leaves intact the real source of gender identity discrimination: sex markers, themselves. We should get rid of sex-markers on government-issued IDs altogether.

This is a radical proposal, but one grounded in liberal legal doctrine. U.S. Courts have said that when the government or a “state actor” invokes sex or gender in a policy, it must show that the relationship between the sex classification a legitimate government goal is not only rational but also “substantial.” This is the intermediate standard of judicial review that falls somewhere below the “strict scrutiny” that states must meet when they use race in a policy and the basic rational relationship test that is a catchall for other identities such as age. Put another way: Could the state actor (i.e., a DMV) achieve the legitimate goal some other way without invoking gender?

Not only do sex-marked IDs fail intermediate judicial review, but they also fail the rational relationship test because they are not even rationally related to a legitimate government goal. There are two main legitimate goals that state governments aim to achieve by issuing driver’s licenses: 1. Standardize safe driving practices 2. To verify our personal identities when it comes to enforcing safe driving practices. Both of these goals are important. But sex markers are not necessary for achieving them. The government can and should verify our personal identities by other means. Photos, although imperfect, are rationally related to personal identity verification, as are some forms of biometrics such as fingerprints and irises.

Transgender experience tells us that the sex identities we are assigned to at birth are personally changeable over the course of our lifetimes, and intersex experience tells us that genital inspection at birth does not always yield the dyadic sex designations of male or female. Moreover, some people identify as both male and female, or neither. Indeed, Oregon’s decision to add an X for non-binary marker option was inspired by a nonbinary person’s request for a classificatory alternative to M or F on their driver’s license. Before making this request Jamie Shupe had petitioned a court to be legally recognized as “non-binary,” and been granted this legal recognition.

What are the policy implications of such legal recognition? A third sex category is one possibility. Some other countries have adopted this accommodation approach. In Canada, my home province of Ontario offers a third “nonbinary” X sex markers on its driver’s licenses. In 2013, Australia passed legislation that added a third sex marker option of “X” in addition to “M” or “F” to its passports. X represents the sex category of “indeterminate,” and is only available to Australians who were born with intersex conditions, and transgender Australians who can produce a “letter of support” from a physician. Bangladesh added a similar third sex marker option of “other” to its passports in 2013, and India passed legislation in 2005 that added a third sex marker option of “E” that stands for a eunuch. In 2013, Germany gave intersex adults, but not transgender adults, the third option of “X” on both their passports and birth certificates. Germany’s law also gives the parents of intersex infants the option of leaving the sex designation on their children’s birth certificate blank.

These reforms are progressive to the extent that they acknowledge that our sex identities are personally changeable and not always dyadic. This could be helpful in terms of educating the broader public about the existence of transgender, intersex, and nonbinary people. If this became a bureaucratic norm, then administrative agents would come to expect that some people’s identity documents would have a third sex identity marker. But in the meantime, there are non-binary people who will feel stigmatized by having an X on their driver’s license. Not all nonbinary people seek or welcome such public disclosure. So the law won’t help all non-binary Oregonians and DC residents; only those who wish to be seen by police officers and store clerks as nonbinary.

The law is being touted as something that will help transgender people. But Oregon and DC already allow transgender people to change their legal sex classification from male to female or female to male, as do all fifty states. Both this assimilation and the accommodation approach of adding a third non-binary gender option fail to get to the root of gender identity discrimination, and indeed many other forms of sexism. For this, we need to rethink our use of sex-classification policies in the first.

The removal of sex markers from government-issued IDs would not end all sexism, but it would spark cultural reform. It would send a strong message to all of us that a person’s sex classification is irrelevant to most public transactions, including getting pulled over for a traffic ticket and purchasing beer.