Gender Neutral Choice in Legal Documents

The forms of discrimination trans – binary and non-binary – people face both in everyday life and on multiple legal level vary. While most people are aware of the alarming truth when it comes to harassment, violence, and marginalization, we also need to consider the disheartening lack of progress when it comes to legal processes. One of the most common issues trans people face in many countries, is the lack of legal recognition of their gender identity and the mismatch of their true name and gender with what appears on their legal documents.

The law is gradually catching up with the reality that not everyone identifies as male or female. In some countries, it is now possible to choose a gender-neutral option on legal documents, such as passports and birth certificates. This is a vital step forward for transgender people, who often face difficulties when their legal documents do not match their gender identity.

The Gender Recognition Act 2004 allows transgender people to change their legal gender. However, this process is long and complicated, and many transgender people do not wish to go through it. The government is currently consulting on reforming the Gender Recognition Act, with a view to making it simpler and more accessible for transgender people.

A government failing to legally recognize people’s gender identities is violence. It’s an issue that entails more problems than a non-trans person may imagine. Trans people may be denied services that cis people take for granted, due to confusion that may ensue because of their ID displaying the wrong gender and name.

There have been multiple cases noted, of public or private services even calling the police for identification and getting the person asking for the service in trouble, because they may not believe that the person is being honest about their identity. Routine procedures such as going to the bank, to the post office, or passing through airport check-in, can in this way become extremely stressful, even psychologically damaging for trans people. The fact that citizens may be denied access to healthcare, housing, voting, traveling, acquiring a driver’s license, or accessing social services, because their legal documents don’t reflect their true identity is unacceptable to say the least.

Apart from the practical consequences the mismatch may have, it is also a violation of human rights, since it treats trans people like second-class citizens. A person with no correct legal documentation basically doesn’t exist in society. According to the Council of Europe’s Commissioner for Human  Rights: “It is clear that many transgender persons do not fully enjoy their fundamental rights both at the level of legal guarantees and that of everyday life.” Such rights are dignity, freedom, and self-determination. The person’s privacy is also violated, since they are often forcibly “outed”, which means that their trans identity as well as their deadname might be revealed without their consent.

The National Transgender Discrimination Survey by the National Center for Transgender Equality and the National Gay and Lesbian Task Force, demonstrated through its results that about 40% of people who reported having presented an ID that didn’t match their gender identity in the US experienced harassment, 3% physical assault, and 15% were turned away.

Currently, no international standards for verifying information on birth certificates or passports exist, other than those enforced on a national level. The Civil Aviation Organization has set standards for traveling, that allow the “sex” choice either to have the options “male” and “female”, or to also include “X” for unspecified gender. It depends on each state to determine whether “X” will be an option for the citizens’ legal documents.

But why is the existence of an “X” option for other gender or unspecified gender essential?

People’s legal identification must rely on the principle of self-determination. Trans people need to be able to register with their correct name and the gender marker with which they identify, without having to undergo forced medical or psychiatric procedures. This is not only important for respecting the rights of binary trans people (trans women and men), but also in order to respect the rights of non-binary trans people, whose identities are even more scarcely recognized by the law.

An “X” or “other” option allows for the correct identification and inclusion of people whose gender falls out of the gender binary. Non-binary people exist, and they deserve to be correctly gendered and have their proper identity registered and recognized. For a non-binary person, having to register and pretend to be either a woman or a man every time they must be identified can be a cause of extreme gender dysphoria. Self-determination must be an undisputed right for all citizens without discrimination, in order for them to be able to express and develop their identities and personalities freely and healthily interact in society.

Additionally, when it comes to the acceptance of non-binary people, there is still a long way to go. Society in its biggest part is still constructed on the basis of strict gender norms enforced in a binary way, and this form of discrimination can be met with even within LGBT communities. We need to acknowledge the existence of non-binary people and work actively for their better inclusion in all levels of social and political life. In order for that to happen, the recognition of their existence and true-identities on a legal basis is a vital step towards equality.

Today there are some states that allow the change of trans people’s legal documents without necessary medical or psychiatric conditions: such examples are those of Argentina, Nepal, Ireland and Malta. Australia, Canada and Nepal are countries that allows a third option other than “male” and “female”. In Nepal, this category is directed to those whose gender is different than the one assigned at birth. Theoretically, people can change their documents according to self-identification, although the actual process remains quite difficult. In India hijras can obtain a passport with a third gender option. In Pakistan there is a third gender option.

Some of the countries that allow change of gender to an “other” option in the legal documents have a legislation directed only to intersex people, that is to people who are born with biological characteristics that fall outside the “boxes” the medical community classifies as either “male” or “female”. Other countries expand this legislation to non-binary trans people as well, on the basis of self-determination.

In Germany, adult intersex people are allowed to “delete” the gender marker they were assigned at birth if it doesn’t match their identity, and intersex babies can be registered not as a third gender, but with the absence of a “male” or “female” gender marker. In New Zealand there are birth certificates that may display “indeterminate sex” if it isn’t possible to assign a sex at a new-born baby, as well as passports with a “gender diverse” sex marker that includes both unspecified or “other” choices, as well as binary trans people during their transition. In March 2017 the legal classification of sex was called against by a Aotearoa/New Zealand and Australtian community statement, in favor of self-identification and diversity.

In the UK, the title “Mx.” is used for non-binary people by government organizations and businesses, and non-binary gender markers are allowed for students in higher education.

As for the US, the situation is more complicated. In 2016 Jamie Shupe was the first person to legally change their gender to non-binary in Oregon by court decision. Sara Kelly Keenan was the second person to do that change. Keenan’s pronouns are she/her and she is intersex. In January 2017, a bill was introduced in California to remove medical and court requirements for the legal gender change. This bill started with Intersex people in mind, with the lobbying of Keenan and non-binary Carly Mitchell. The bill was passed this May.

It is vital for non-binary people, as well as people who are born intersex, to choose their gender as it appears in legal documents based on self-determination, and the states must take drastic steps towards this change.