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  • Writer's pictureratchetintellectual

X Marks the Spot: Expanding Gender Identification in the Legal System

Updated: Sep 15, 2022


New York is the latest state to recognize “X” as a gender marker on driver licenses. “X” works as a third gender option that exists outside the binary of “M”or “F”. New York’s Gender Recognition Act also permits the use of “parent” on birth certificates instead of just mother or father and relaxes barriers to name changes on government documents. New York is the 22nd state that allows residents to choose “X” as their gender identity on official identification cards. The federal government is taking similar steps to include gender expansive people by allowing citizens to select “X” as their gender marker on their U.S. passport. With more than 2 million adults in America identifying as nonbinary or transgender, this change is seen as an important step in normalizing queer identities.

Shige Sakurai (They/them) Adjunct Instructor School of Education at American University

The International Civil Aviation Organization (ICAO), which develops standards for the production of passports has recommended including “X” as far back as 1996. Countries like Australia and New Zealand have recognized “X” as a third gender option since 2003 and 2012 respectively. The first person to be legally recognized as a non-binary person in the U. S. was Elisa Rae Shupe in 2016. Shupe successfully petition Multnomah County to change their legal gender from male to female then female to non-binary. The landmark case paved the way for Oregon to become the first state in America to allow “X” gender marker on back in 2017. Shige Sakurai, an activist and educator, was the first person in the United States to officially receive an “X” marker driver’s license.



The federal decision to include an “X” option for passports came after a long legal battle between the State Department and Dana Zzyym, an intersex Colorado resident who uses gender-neutral pronouns. Lamda Legal, a queer legal advocacy group that represented Zzyym, states how critical this decision has been in improving the lives of non-binary and trans folks. The rise of “X” and the normalization of trans identities comes despite fierce opposition. Over thirty states currently have at least one piece of anti-trans legislation that seeks to firmly enforce the gender binary and discourage gender nonconformity. For some, “X” and third gender options represent an opportunity to further ensure legal protections extend to trans people.


Dana Zzyym, intersex advocate

However, some are questioning the purpose of having any gender markers on identification at all.


Spencer Garcia succinctly outlines the movement towards genderless identification cards and the problems with “X”. The financial requirements continues to be a major barrier for many trans and non-binary people, many of whom live in poverty. Garcia also calls into question the material impacts of having a federal third gender that encompasses a vast array of experiences and identities.Having an “X” marker could lead to more violence since it would automatically out you as gender nonconforming. Many trans Americans are choosing between validation and safety when it comes to gender markers.


A third gender marker does not dismantle transphobia but the question becomes whether or not "X"'s short comings outweigh the potential good. As our country slowly starts to accept changes to the status quo, we must grapple with the complex issues that arise from progress.

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