Why X Gender Markers Matter

January 1st marked a new era for transgender, gender nonconforming, nonbinary, and intersex rights in New York. At the start of the year, our state’s statute requiring all agencies that collect sex or gender information to offer an X option went into effect for the vast majority of state agencies.

Offering X gender markers is important. It lets many nonbinary and intersex New Yorkers know that their government sees them and honors who they are. And it streamlines participation in society, because identity documents are required to rent an apartment, access public benefits, open a bank account, enroll your kids in school, and drive a vehicle. An accurate ID can also make or break an encounter with the police.

It can ease your entry into a new workplace, both because employers ask for IDs for employment verification purposes and because having accurate ID may make it less likely that an employer will misgender you.

Having access to accurate ID can even be lifesaving. One study found a drastic reduction in suicide attempts for transgender people, including nonbinary people, who had even one identity document that accurately reflected their gender identity.

For these reasons, advocates, attorneys, and nonbinary New Yorkers have been working for a long time to secure an X option in as many New York State systems and agencies as possible. Steadily, a series of legal cases have chipped away at the exclusionary status quo.

In 2021, a broad coalition, including the NYCLU and led by Empire Justice and Transgender Legal Defense and Education Fund, successfully advocated for the Gender Recognition Act. The GRA, which passed in 2021, established an X option for New York birth certificates, driver’s licenses, and nondriver’s IDs.

Also in 2021, the NYCLU filed a lawsuit on behalf of Princess Janae Place – a Bronx-based organization that provides gender-affirming support to transgender and nonbinary people of color – Jules Donahue, and Jaime Mitchell against the New York State Office of Temporary and Disability Assistance (OTDA) for discriminating against nonbinary New York residents.

OTDA’s application process – which determines access to food stamps, Medicaid, and many other programs and emergency services – prohibits nonbinary people from applying for or receiving benefits unless they misidentify their sex as “male” or “female” under oath. It is simply cruel that New York conditions lifesaving assistance on lying about one’s identity and risking being misgendered.

So where are we today – approximately two months after the majority of state agencies were required to implement X gender markers? The good news is the Governor’s office tells us that every agency that faced a Jan. 2023 deadline now offers X gender markers.

The bad news is twofold. First, we know that what the Governor’s office said is not entirely true. Public defenders, for example, have shared that the Office of Court Administration still does not offer X gender markers on securing orders, the court orders that set pre-trial conditions for a criminal defendant.

Second, the Jan. 2023 deadline does not apply to four agencies: the Department of Labor (DOL), the Office of Children and Family Services (OCFS), the Division of Criminal Justice Services (DCJS), and, of course, OTDA, which all have a non-binding January 2024 deadline under the new statute.

Two years after they filed their lawsuit against OTDA, our clients are still awaiting justice, with rulings still pending on their claims even as they continue to update the court on how this long delay is impacting their lives and as they continue to receive communications about their benefits that misgender them.

Here’s what some members of the LGBTQI community say about what X gender markers mean to them:

“As a transgender advocate leading an organization that provides gender-affirming support—primarily to transgender and nonbinary people of color transitioning from homelessness to permanency—I have seen firsthand the financial and emotional harm that choosing between being who you are and fitting into a government database can cause. This discriminatory red tape must be removed immediately.” – Jevon Martin (he/him), Founder & Executive Director of Princess Janae Place.

“Intersex people have the same basic entitlement as every other New Yorker to demographic gender markers that simply align with who we are. Unfortunately, even in New York, people with intersex variations can also experience frequent discrimination and intrusive questioning when our gender markers reflect a binary M or F and our physical characteristics don’t perfectly fit that binary. It is not right that intersex New Yorkers experience this mistreatment when interacting with state agencies to secure important benefits, ensure family welfare, or comply with justice system requirements. We call for immediate implementation of what state law already impels: access to an X gender marker on state records.” – Erika Lorshbough, the New York-based executive director of interACT: Advocates for Intersex Youth.

“When the Governor announced that New Yorkers can now use “x” to mark their genders on driver licenses and ID cards last year, it was a light at the end of a dark tunnel for so many of us trans and non-binary folx. Our community is at risk every single day for our existence and we are just asking to be rightfully addressed on our forms of identification. Allowing us to use “x” to mark our genders shows that the State acknowledges and respects us as a community. That is all that we have ever wanted: acknowledgement and respect.” – Ace Sutherland, Director of Community Organizing at Equality New York. 

“As a lifelong New Yorker, it is so affirming to be able to have my X gender marker on my New York driver’s license and NYC birth certificate. Having an X marker for nonbinary New Yorkers allows us to accurately represent ourselves and removes barriers to accessing the services which we are entitled to. I acknowledge the complexity of changing and updating systems, but state agencies have shown that it can be done. The Legislature has reiterated multiple times their intention that agencies across the state provide for X markers across systems.” – AC Dumlao

We, in support of and collaboration with community members, activists, advocates, allies, and our clients, will continue to fight until OTDA – and all New York State agencies – fully implement these long-overdue updates. They must do right by LGBTQ – and particularly transgender, gender nonconforming, nonbinary, and intersex – New Yorkers and offer an X option immediately.