On 27 October 2021, the U.S State Department announced that they had issued the first passport with an ‘X’ gender marker. The X marker denotes that the passport holder is neither exclusively male nor female. U.S citizens are now able to have their gender identity better recognised. As announced by Secretary of State, Antony J. Blinken in June 2021, the X marker will be used for non-binary, intersex, and gender non-conforming persons. Prior to this national change, the rules varied across the different states – with only 20 states allowing for applicants to select an X gender marker. This new change will implement a national standard, ensuring that the same rights are afforded to individuals regardless of their location.
Whilst finalisation of passport forms has not yet occurred to allow for applicants to select the X marker, the State Department has confirmed that they no longer require medical documentation for applicants to change their gender marker on their passport. Presently, this means that applicants may select male or female on their passport, even if it does not match their supporting documentation, such as a birth certificate.
Why has this change occurred?
According to the 2015 U.S Trans Survey, 46% of transgender and nonbinary people in the U.S do not have identification that accurately reflects their gender. Advocates have contended that the failure to have a non-binary gender marker has left many at risk of discrimination any time they have to use their identification. One discrimination case which has significantly contributed to this policy change is Zzyym v. Blinkin. Dana Zzyym (they/them/their) filed a federal discrimination lawsuit against the U.S State Department in 2015 as they could not accurately choose either male or female on their passport application, which was denied. Dana is intersex and was born with ambiguous sex characteristics. Lambda Legal, Dana’s legal representatives, contended that the State Department was violating the Due Process and Equal Protection clauses in the U.S Constitution, as well as the federal Administrative Procedure Act, by denying Dana a passport that accurately reflected their gender. After six years in litigation, Dana finally succeeded in their lawsuit. They were subsequently provided with the first X gender marker passport issued by the State Department.
What does this change mean?
This change now means that the U.S has joined other countries such as Australia, Canada, Germany, India, and New Zealand in offering a non-binary gender marker to citizens for identification. It is unclear how this policy will affect existing state laws regarding gender markers, however, U.S special diplomatic envoy for LGBTIQA+ rights, Jessica Stern, remains hopeful that the policy change will enable people to live with a greater sense of dignity and respect.
It should be noted that although passports with X gender markers comply with international standards, individuals who hold these passports may encounter difficulties when crossing international borders. In Australia, the Department of Foreign Affairs and Trade has outlined that it cannot guarantee holders of these passports will be accepted for entry or transit by another country. It is reasonable to assume that similar difficulties may exist for U.S citizens.
Overall, this is a very positive step in the right direction for non-binary, intersex and gender non-conforming individuals. The State Department anticipates that they will finish updating passport forms by early 2022, and that after this process is complete, applications will offer the X gender marker for the population nationwide.
As an ally of the LGBTIQA+ community, Nicholes Family Lawyers strongly supports the U.S’ new policy and hope to see further developments in this field internationally. For further information on this topic, or for advice on LGBTIQA+ matters, please reach out to us.