Gender Markers at the Federal and State Level
October 19, 2020

Gender Markers at the Federal and State Level

Differences between official gender markers at the federal and state level

Here at A2J Tech we have been working on automated forms that let you change your name and your official gender marker. While I was researching for this project I found out about an interesting conflict in the federal and state laws. Because some state governments recognize non-binary gender expression but the federal government does not, some people have different genders in their state records than the gender they have in their federal records.

What is a gender marker?

Your official gender marker is what gender government records say you are. You have a gender marker in federal records. You also have a gender marker in state records. Your gender marker appears on some official documents, like your drivers license and passport. Both federal and state governments allow you to change your gender marker. The process for changing your gender marker can be fairly simple when you have the correct forms to do it.

Gender markers at the state level- Female, Male, and X

Our most recent name change project involved automating the forms for name changes in Colorado state. Colorado recently passed a law that allows people to change their gender marker to match their gender expression. Colorado has three options for the gender marker. The three gender markers in Colorado are Female, Male, and X. X is the non-binary gender marker. Many U.S. states as well as foreign countries have updated their laws to allow the non-binary X marker. But the federal government of the U.S. has not.

Photo by Delia Giandeini on Unsplash

Gender markers at the federal level- Female and Male only

At the federal level the only gender markers that are available are Female and Male. You can change your gender marker in federal records, but you cannot change it to X. This means that someone who changes their gender marker to X in their state records must still have a gender marker of either Female or Male in federal records.

Possible Changes at the federal level- court rulings and legislation

In 2016 an intersex person brought a lawsuit seeking to have their passport application with an X gender marker approved. In 2016 and 2018 federal courts ruled that the State Department was required to issue a passport with a non-binary gender marker. But the State Department has continued to ignore that ruling and refuses to issue documents with the non-binary gender marker. Lawsuits are still happening, and democratic members of congress have started to write a law that would recognize non-binary gender expression at the federal level. So the federal government may one day issue documents that comport with state documents, but it is uncertain when that change will happen.

Photo by Tyler Lastovich on Unsplash

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