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NYCLU Settlement Secures “X” Gender Marker for Nonbinary New Yorkers Seeking Public Assistance 

NEW YORK – Following a 2021 lawsuit from the New York Civil Liberties Union, the New York State Office of Temporary and Disability Assistance (OTDA), the state agency that runs public assistance programs statewide, has agreed to make the “X” gender marker available to New Yorkers seeking to apply for public benefits.

“This is a major victory for the thousands of nonbinary New Yorkers who will be able to seek public benefits without being forced to lie about their identity or risk being misgendered,” said Gabriella Larios, staff attorney at the New York Civil Liberties Union. “Offering ‘X’ gender markers lets nonbinary New Yorkers know that their government sees them and honors who they are when seeking food stamps, cash assistance, and other supports to help them get back on their feet. In the face of nationwide attacks targeting trans and nonbinary people, we will continue to monitor implementation of the settlement to ensure compliance and protect the rights of nonbinary New Yorkers.”

The lawsuit argued that OTDA’s refusal to update its application and record-keeping systems to recognize the “X” gender marker discriminated against nonbinary New Yorkers on the basis of gender identity. OTDA’s benefits application process, which determines access to food stamps, Medicaid, and many other programs and emergency services, barred nonbinary people from applying for or receiving benefits unless they misidentify their gender as “male” or “female” under oath. This conflicts with state and municipal policies that recognize gender “X” on identification documentation. In response to the lawsuit, OTDA and related Department of Health (NYSDOH) applications must now allow New Yorkers to accurately document a gender identity other than “male” or “female” and to provide the agencies with their preferred pronoun.

Under the settlement, the state will:

  • Make “X” gender markers available on all public-facing OTDA and New York State Department of Health (NYSDOH) documents by January 1, 2024.
  • Allow the New York City Human Resources Administration to offer “X” gender markers on all public-facing forms before January 1, 2024.
  • Redefine the existing sex markers in New York’s Welfare Management System.
  • Issue guidance and make training available to OTDA, NYSDOH, and local department of social services staff about these changes and emphasize the importance of cultural competency and sensitivity to the clients they serve, with a focus on nonbinary clients.

The lawsuit was brought on behalf of individual plaintiffs Jules Donahue and Jaime Mitchell, as well as organizational plaintiff Princess Janae Place, a community-based organization led by, and for, people of trans experience in the Bronx.

“This is a critical policy change, not only for the community we serve, but for all nonbinary New Yorkers,” said Jevon Martin (he/him), executive director of Princess Janae Place. “As a transgender advocate leading an organization that provides gender-affirming support, I have seen firsthand the devastating mental health effects of misgendering people. OTDA’s new policies will help restore a greater degree of autonomy and self-determination for all nonbinary New Yorkers, recognizing their fundamental dignity.”

“No New Yorker should have to make a choice between lying about their gender identity or forgoing public assistance,” said Jules Donahue (they/them). “While today’s agreement does not erase the emotional harm of being misgendered, I am grateful for OTDA’s policy changes, which will help nonbinary people like me to feel more at home in their bodies, their lives and their societies.”

“Today’s agreement is a big step in the right direction to ensure nonbinary and intersex New Yorkers are treated with dignity and respect when applying for lifesaving assistance, but New York State’s work is not over,” said Jaime Mitchell (they/them). “For decades, our communities have been treated like an afterthought by agencies using dangerously outdated computer systems. With long-promised system upgrades on the horizon, we’ll continue to push OTDA and DOH to make sure that inclusive policies and infrastructure are a priority from the start.”

The World Professional Association for Transgender Health (WPATH) specifically addresses the importance of not only obtaining accurate “gender marker[s] on identity documents” but also ensuring that “organizations and institutions” accurately note a person’s self-identified gender identity, as part of the recommended treatment to help alleviate gender dysphoria. In fact, one study found a drastic reduction in suicide attempts for transgender people, including nonbinary transgender people, who had even just one identity document that accurately reflected their gender identity.

In 2021, following years of advocacy from the NYCLU and partners, the New York state legislature passed the Gender Recognition Act (GRA), which established an “X” option for New York birth certificates, driver’s licenses, and nondriver’s IDs. Additionally, a New York’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 in January 2023. OTDA, the Department of Labor, the Office of Children and Family Services, and the Division of Criminal Justice Services were exempted and had a non-binding January 2024 deadline under the new statute. Outside New York, at least 18 other U.S. jurisdictions also provide some form of legal recognition of nonbinary gender markers.

OTDA’s outdated computer system has been the subject of previous lawsuits and criticism for widespread bugs and failures that have resulted in a wide array of New Yorkers receiving unjust benefits denials or interruptions. Nonbinary New Yorkers were the latest in a long list of vulnerable groups to be affected by the state’s refusal to upgrade to a more affirming system.

NYCLU counsel on the case include attorneys Gabriella Larios and Bobby Hodgson, and senior paralegal Lourdes Chavez.

You can find materials on the case and settlement here:

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