The Future of Gender Designation in U.S. Legal Documents

By: Fae Patton*

*The author is an employee of the U.S. Department of State. She contributed to this article in her personal capacity. The views expressed in the article are her own and do not reflect the official policy or position of the U.S. Department of State, or the U.S. government.

Recently, California became the first U.S. state to add a non-binary gender option into state law, enabling residents to have non-binary listed as their gender on official documents such as birth certificates, driver’s licenses, and state-issued identification.[1]  California Governor Jerry Brown signed Senate Bill 179, the Gender Recognition Act, on October 15, 2017.[2]  The Act is intended to ensure that intersex, transgender, and non-binary people have full legal recognition of their accurate gender identity.[3]  The signing of the Act prompts speculation about the future of gender designation on US federal documents, and whether having gender non-binary identification makes people a target for harassment.

Though this is a landmark bill, it is not the first time a U.S. state recognized non-binary as a gender option.[4]  In 2016, an Oregon judge granted Jamie Shupe’s petition to legally change their existing gender marker from female to non-binary.[5]  Oregon then became the first U.S. state to announce that it would allow an ‘X’ gender option on state-issued identifications beginning in July 2017.[6]  Soon after Oregon’s announcement, Washington, DC issued the first U.S. gender-neutral driver’s licenses in June 2017.[7]

California’s Gender Recognition Act will end the requirement for Californians to demonstrate that they have undergone treatment before changing the gender on their legal documents.[8]  It also provides that the State Registrar shall issue new birth certificates reflecting a requested gender change to individuals without a court order, so long as the person applies and submits an affidavit.[9]  The affidavit would require applicants to attest “under penalty of perjury that the request for a change of gender to (female, male, non-binary) is to conform the person’s legal gender to the person’s gender identity and is not made for any fraudulent purpose.”[10]

Other countries, including the U.K., Australia, New Zealand, Pakistan and Nepal, have also begun introducing non-binary options on legal documents, often using ‘X’ as the designation.[11] In August, Canada began interim measures for non-binary individuals to note that their passports should be identified as ‘X’ until Immigration, Refugees and Citizenship Canada (IRCC) is able to begin printing documents with an ‘X’.[12]  The Minister of IRCC, The Honourable Ahmed Hussen, stated that by introducing the new ‘X’ designation, Canada was “taking an important step towards advancing equality for all Canadians regardless of gender identity or expression.”[13]

While many consider the introduction of non-binary or gender-unspecified legal documents a human rights breakthrough, the new designation could make the document-bearer a target for harassment.[14]  Australia’s Department of Foreign Affairs and Trade website cautions passport holders with the ‘X’ designation about potential problems while travelling internationally.[15]  The website warns that people travelling with a passport showing ‘X’ may encounter difficulties with crossing international borders, and that Australia cannot guarantee that the “X’ passport will be accepted for entry or transit by another country.[16]  Some non-binary individuals argue that having a legal document with an ‘X’ designation will be helpful because it will prompt a discussion about their gender identity, rather than having an ‘F’ or ‘M’ that does not match their physical appearance and identity.[17]

U.S. passports do not currently allow for a non-binary or gender-neutral option.[18]  The U.S. Department of State website states that “the only genders available for a passport are male and female” in response to a frequently asked question about gender identity.[19]  In 2015, Lambda Legal filed a lawsuit against the U.S. State Department, asserting that they violated the due process and equal protection components of the Fifth Amendment to the U.S. Constitution be denying a citizen a passport that accurately reflects their gender.[20]  The U.S. District Court for the District of Colorado ruled in their favor in 2016.[21]  The case was reopened in June 2017 because the Department of State has not yet recognized a gender marker aside from male or female.[22]

With the signing of California’s Gender Recognition Act and multiple U.S. states beginning to issue non-binary legal identification, a more public discussion of gender designation on federal documents is inevitable. [23]


[1] Gender Recognition Act, S.B. 179 (Cal. 2017), https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB179.

[2] See James Michael Nichols, California Becomes First State to Legally Recognize A Third Gender¸ Huffington Post (Oct. 17, 2017) https://www.huffingtonpost.com/entry/california-third-gender-option_us_59e61784e4b0ca9f483b17b9.

[3] See Gender Recognition Act, S.B. 179.

[4] See Nichols, supra note 2.

[5] See Christopher Mele, Oregon Court Allows a Person to Choose Neither Sex, N.Y. Times (June 13, 2016) https://www.nytimes.com/2016/06/14/us/oregon-nonbinary-transgender-sex-gender.html.

[6] See Lydia O’Connor, Oregon Is First State To Offer Third Gender Option On Official IDs, Huffington Post (June 15, 2017)  https://www.huffingtonpost.com/entry/oregon-third-gender_us_5943071be4b01eab7a2ca104.

[7] See Perry Stein, Meet the first person in the country to officially receive a gender-neutral driver’s license, Wash. Post (June 30, 2017) https://www.washingtonpost.com/local/meet-the-first-person-in-the-country-to-officially-receive-a-gender-neutral-drivers-license/2017/06/30/bcb78afc-5d9a-11e7-9fc6-c7ef4bc58d13_story.html?utm_term=.2651d1acc4e3.

[8] See Gender Recognition Act, S.B. 179 at (1).

[9] See id. at §9 (b).

[10] See id. at §11.

[11] See Nichols, supra note 2.

[12] See Government of Canada website, Minister Hussen announces major step forward in gender equality by making changes to passports and immigration documents (Aug. 24, 2017) https://www.canada.ca/en/immigration-refugees-citizenship/news/2017/08/minister_hussen_announcesmajorstepforwardingenderequalitybymakin.html.

[13] See id.

[14] See Leslie Young, Canadians travelling with gender-neutral passports could face problems abroad, Global News (Aug. 25, 2017) https://globalnews.ca/news/3696784/gender-neutral-passport-canada-travel-problems/.

[15] See Department of Foreign Affairs and Trade, Sex and gender diverse passport applicants (last visited Oct. 23, 2017) https://www.passports.gov.au/passportsexplained/theapplicationprocess/eligibilityoverview/Pages/changeofsexdoborpob.aspx.

[16] See id.

[17] See Young, supra note 14.

[18] U.S. Passports & International Travel, Gender Designation Change: Frequently Asked Questions (last visited Oct. 23, 2017) https://travel.state.gov/content/passports/en/passports/information/gender.html.

[19] See id.

[20] See Lambda Legal, Zzyym v. Tillerson (formerly Zzyym v. Kerry) (last visited Oct. 23, 2017) https://www.lambdalegal.org/in-court/cases/co_zzyym-v-tillerson.

[21] See id.

[22] See id.

[23] Gender Recognition Act, S.B. 179; see O’Connor, supra note 6; Stein, supra note 7.