New York Will Offer X Gender Markers on IDs

Identity documents are required to participate in society – 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, and can streamline 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.

And yet, for too long, transgender New Yorkers have had to run a gauntlet to get accurate identification. Nonbinary New Yorkers have not been able to get state driver’s licenses or state IDs that reflect who they are. That’s because New York did not offer X gender markers on driver’s licenses and state IDs. Fortunately, all of this is about to change with the enactment of the Gender Recognition Act, which was signed into law last month – just in time for Pride.

Until now, New Yorkers who needed to change the name or gender marker on their identity documents had to undergo an antiquated, cumbersome, and shaming process. They were required to publish their current names, previous or dead names, their addresses, their birth dates, and their places of birth in a designated newspaper, outing them as trans and sometimes putting them in danger of discrimination, ridicule, or even violence.

When New Yorkers wanted to change their gender markers, they were required to provide doctor’s notes attesting to their gender, an unnecessarily expensive and burdensome proposition.

Judges often required name change applicants to notify or seek consent from a range of third parties – including adult petitioners’ spouses

When documented or undocumented petitioners born outside of the U.S tried to change their names, judges sometimes required them to notify federal immigration agencies – a requirement that very likely prevented new Americans from seeking identity documents that reflect who they are.

For those who were able to jump through all the hoops and change their name or gender marker, there was no mechanism to require third parties – such as schools an individual has graduated from – to honor the name or gender marker change.

Having access to accurate ID is lifesaving.

The bureaucratic nightmare was so intractable that the State Division of Vital Records told married couples that, if they want their names or gender markers to be accurately reflected on an existing marriage certificate, they should divorce and remarry.

Members of our community have long been chipping away at this state of affairs through litigation. Thanks to a Lambda Legal lawsuit, minors are able to change the gender markers on their New York state birth certificates (with a parent until they are 17 and then on their own once they turn 17).

Because of a case brought by attorney Milo Primeaux, since June 12, 2020, New Yorkers born outside of New York City have been able to get X gender markers on their birth certificates (New Yorkers born in New York City have had an X option since 2018). And, thanks to work by attorney Charlie Arrowood, parents have been able to change their own names and gender markers on their children’s birth certificates since July 2020.

But, litigating each barrier one-by-one is time-consuming and exhausting. We knew we needed a systematic solution. So a broad coalition including the NYCLU and led by Empire Justice and Transgender Legal Defense and Education Fund, conceived of and advocated for the Gender Recognition Act (GRA). The bill makes New York the 21st state to create X gender markers for identity documents and streamlines the process to change the name and gender marker on a New York identity document.

The GRA, sponsored by Senator Brad Hoylman and Assembly Member Danny O’Donnell, was drafted explicitly to tear down each of the barriers detailed in this piece. You can find out what the new law means for you here.

The GRA will make a huge impact for a tremendous number of people, but there is still work to be done.

As just one example, the NYCLU and Legal Services of NYC are suing the New York State Office of Temporary and Disability Assistance (OTDA) for discriminating on the basis of gender identity against nonbinary New Yorkers. OTDA refuses to recognize an X gender marker and prohibits nonbinary people from applying for benefits unless they misgender themselves as “male” or “female” under oath. Our litigation is ongoing.

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

Providing an X gender marker lets nonbinary New Yorkers know that their state sees them and honors who they are. Making it easy to change the name and gender marker on a New York identity document lets transgender, gender nonconforming, and nonbinary New Yorkers know that their state has their backs.

In a time of unprecedented attacks on transgender youth across the country, this is imperative.