Mistaken Identity: ID Barriers Plague Nonbinary, Trans People

By RJ Vogt | June 30, 2019, 8:02 PM EDT

Attorney Charlie Arrowood uses gender-neutral pronouns but can't get a passport with a gender-neutral marker, an example of how legal systems often force trans and nonbinary people to carry inaccurate IDs. (Kevin Penton | Law360)

Charlie Arrowood can’t get a driver’s license that matches their birth certificate, and Kayla Gore can’t get a birth certificate that matches her driver’s license. Dana Zzyym can’t get a passport that matches their driver’s license, and Jennifer Barnes-Balenciaga can’t get a driver’s license that matches her passport.

Welcome to the patchwork world of identity documents for trans and nonbinary people, whose gender identities are different from those typically associated with their assigned sex at birth.

For trans people, that difference can mean someone assigned female at birth identifying as male, or vice versa; nonbinary people don't identify as one or the other.

Comprising an estimated 1.4 million people across the country, members of these groups must secure court orders, proof of expensive surgeries and notarized affidavits in order to bring their legal genders in line with their self-identified ones.

Changing names can require publication in local press and a public hearing, burdens that nontrans people who change names for marriage purposes do not carry.

And though jurisdictions in places like New York City and California have enacted policies to make things simpler or even just accessible, other jurisdictions — like New York state, a swath of southern and Midwestern states and the federal government — haven’t kept up.

It all amounts to a crisis in which only 11% of trans and nonbinary people report having all their legal IDs match their preferred identity, according to U.S. Trangender Survey results released in December 2016. By contrast, 68% report having no IDs that matched their preferred name and gender.

The resulting mismatches put people directly in harm’s way. Roughly a third of those who have shown ID with a name or gender that did not match their presentation report being “verbally harassed, denied benefits or service, asked to leave, or assaulted.”

Charlie Arrowood, who uses the gender-neutral pronoun “they,” was assigned female at birth but “always felt like neither ‘girl’ nor ‘boy’ clicked.” They have confronted the challenges of getting IDs to match their nonbinary identity through their work as Transcend Legal’s director of name and gender recognition, as well as on a personal level.

In a May 15 amicus brief to support Dana Zzyym, a fellow nonbinary person who has been fighting the U.S. government for nearly five years to get a passport that identifies their sex as “X,” Arrowood detailed how using an ID that says “F” can lead to problems for someone who, after surgery and hormone therapy, does not “look female."

"But I was never transitioning 'towards male,' just away from female," Arrowood said, going on to recount one episode in which airport security made a scene after misgendering them. “Having documents that do not reflect who I am causes me distress every day."

A gender-neutral option is offered by at least 10 other countries and recognized by the international body governing passport documents, yet the U.S. has argued in court filings that a nonbinary designation is unreliable due to unclear medical consensus on “what it means, biologically ... to have a sex other than male or female.”

Arrowood, however, said that medical consensus shouldn’t be required for people to assert their own identity.

“My driver’s license says male, my birth certificate says 'X,' my passport and Social Security say female,” Arrowood said. “And none of it matters ... except to me.”

Arli Christian, the National Center for Transgender Equality’s state policy director and someone who also uses gender-neutral pronouns, agreed that the most “reliable, accurate source” on gender identity is the individual in question.

“But trans folks did not write the laws,” they said, citing the gender nonconforming community’s slim representation in legislatures past and present. “So when you go to change your identity, you have to jump through all these hoops.”

A Burdensome Process

Arrowood is relatively fortunate to live in New York City, which began allowing nonbinary people to change their birth certificate gender markers to “X” in January.

Even that policy, which New York state has yet to enact for driver’s licenses, comes with a caveat: Arrowood said they had to get a notarized affidavit, a burden that could prevent others with fewer resources from pursuing an accurate ID.

“I kind of meandered through the process, and it was helpful that I understood legalese,” Arrowood said. “But we get people coming at it with no experience whatsoever. ... If you don’t know where to start, you’re in trouble.”

Jennifer Barnes-Balenciaga, a trans woman, said she was blocked from getting the correct marker on her Georgia driver's license due to lack of confirmation surgery.

Procedural hurdles impede access to more than just nonbinary markers. For example, just swapping the letter "M" for the letter "F" on a driver’s license, in at least nine states, requires proof of surgery, a court order or an amended birth certificate.

In Georgia, where Jennifer Barnes-Balenciaga lives and works as the LGBTQ liaison for the state’s only elected queer representative, Park Cannon, such requirements proved to be insurmountable.

She had a doctor’s letter as well as her passport, which the U.S. State Department had let her change to an "F" marker, when she went to her local Department of Motor Vehicles office to correct her license.

Nevertheless, the teller rejected her application because her doctor's note did not mention “sexual reassignment surgery” — or as Barnes-Balenciaga called it, “confirmation surgery.”

“It’s at the discretion of the teller at the DMV whether they change the gender marker or not,” she told Law360. “That is seriously one of the major reasons why I’m ready to leave Atlanta.”

Name changes, too, can present undue challenges for trans and nonbinary people. Both Georgia and New York required Barnes-Balenciaga and Arrowood to publish notice of their name changes in a local newspaper. In Tennessee, where Kayla Gore works as the southern regional organizer at Transgender Law Center, name changes are so confusing that a class she used to teach on the process “would always be full.”

That state doesn’t require publication, but its forms are not always clear about which name one is supposed to list. Gore said courthouses typically hold name change hearings just one day a week, a problem for those with children or strict work schedules. Plus, she estimated court costs are nearly $160, not counting extra charges for copies of the official judgment.

Pro bono programs and advocacy groups like Transgender Law Center help many navigate the maze of bureaucracy. But even those who manage to correct their name and gender on most documents can't always achieve a uniform legal identity. Gore, for example, is blocked from updating her birth certificate because Tennessee law bars such changes unless there is proof a person's sex was mistakenly recorded at the time of birth.

Gore sued the state in April along with several other trans people, alleging the policy “effectively deprives transgender persons born in Tennessee access to birth certificates they can use.”

At one job, she presented as herself but indicated male on tax forms because she had been required to turn in a copy of her birth certificate. An employee pointed out the discrepancy between her tax form and her appearance.

Kayla Gore is one of several trans people suing Tennessee for the right to amend their birth certificates.

“There was a shift in emotions, a shift in vibe,” she told Law360. “I was hired to work in the front as a cashier, but after that conversation, it was recommended that I work in the back of the store.”

Tennessee representatives did not respond to requests for comment. In court, the state has argued that its law does not discriminate against transgender people because nontrans people, known as cisgender, are similarly blocked from changing their birth certificates.

Tennessee's June 17 memo urging the court to dismiss the case also claimed that the documents must reflect history, not necessarily identity.

“[Allowing] plaintiffs to amend their birth certificates to reflect their current gender identities — when there is no evidence that their biological sex, as determined by the appearance of external genitalia, was incorrectly recorded at the time of birth — would undermine the state’s legitimate interests in maintaining accurate records,” the state said.

The Fight Continues

Although states like Tennessee are fighting change, others have accepted that some old ways of doing things need updating. Kansas, for example, agreed in June to allow transgender people to correct their birth certificate gender markers, following similar decisions by Idaho and Puerto Rico.

But those jurisdictions still require some additional confirmation, like doctor’s notes or other IDs that correlate. Sasha Buchert, a Lambda Legal attorney representing Gore, said the ideal framework allows simple self-verification, as seen in states like California, Oregon and Nevada. 

Click to view interactive version

A trans woman herself, Buchert added that one of the fundamental misunderstandings about gender is the idea that identity is anatomically determined.

“Treatment doesn’t make you more or less of a transgender person,” she said. “It doesn’t make you who you are as a man or a woman or in between.”

Take Zzyym, the plaintiff in the passport case. Born with ambiguous sexual characteristics, Zzyym’s parents chose to raise them as a man and subjected them to “corrective surgeries” in a misguided attempt to conform their body to binary standards.

Zzyym suffered years of medical and emotional discomfort before realizing they’d been born intersex, embracing a nonbinary identity and becoming associate director for the Intersex Campaign for Equality.

Intersexuality is not as rare as the system’s failure to accommodate it would suggest: According to the Intersex Society of North America, one in roughly 1,500 to 2,000 children are born “so noticeably atypical in terms of genitalia that a sex differentiation specialist is called.” 

Some societies throughout history have acknowledged the existence of nonconforming people on a legal or formal level, including nearly 130 Native American tribes as well as countries like Nepal, Bangladesh, India and Pakistan.

Still, there remains a substantial reluctance on the part of certain governments, particularly those rooted in Western Judeo-Christian concepts of sexuality, to accept trans and nonbinary identities.

The State Department, for example, is still fighting Zzyym’s bid for a gender-neutral passport, even as its resistance means Zzyym's passport conflicts with their gender-neutral Colorado driver's license. After a Colorado federal judge ruled the U.S. passport policy against "X" markers is “arbitrary and capricious" in September, the State Department appealed to the Tenth Circuit.

Government representatives declined to comment on the litigation, but according to court filings, the State Department claims the cost of updating its system could be up to $11 million. An amicus brief from nine states, however, countered that “adding an ‘X’ designation to driver’s licenses and other identifying documents has proven neither complex nor disruptive” for their governments.

Ultimately, some say that sex or gender markers should be eliminated from ID documents altogether. As Arrowood put it, “there are a lot of other descriptors that are more relevant.”

At the very least, most trans and nonbinary experts agree that governments and agencies requiring such information on IDs should offer "M," "F" and "X" options that are easily changeable, without requirements for a judge's order or a doctor’s note.

Carmelyn Malalis, New York City’s commissioner on human rights, said the city’s new birth certificate process was consciously designed with no court-involvement necessary.

“People don’t always have the resources to get a court order,” Malalis said. “For a lot of people, going to court is like a radical act of bravery, considering why they've been in court in the past.”

But for every progressive place with an "X" option, Christian said, there’s a handful of other places where even changing from "M" to "F" or "F" to "M" at all requires confirmation from doctors, judges or both.

“You may get many denials out there in one county, but the next county over is approving them with a doctor's letter,” they said. “And maybe the next county over, you know, they just say, ‘Oh, that's your gender? I will update this.’"

“There’s very little consistency,” Christian said. “And it’s really nobody’s business.”

--Editing by Aaron Pelc.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.