Legal recognition of non-binary gender

The Open Society Foundations published a report, License to Be Yourself, in May 2014, documenting "some of the world's most progressive and rights-based laws and policies that enable trans people to change their gender identity on official documents."[8] The report comments on the recognition of third classifications, stating:

From a rights-based perspective, third sex / gender options should be voluntary, providing trans people with a third choice about how to define their gender identity. Those identifying as a third sex / gender should have the same rights as those identifying as male or female.

The document also quotes Mauro Cabral of Global Action for Trans Equality:

People tend to identify a third sex with freedom from the gender binary, but that is not necessarily the case. If only trans and/or intersex people can access that third category, or if they are compulsively assigned to a third sex, then the gender binary gets stronger, not weaker.

The report concludes that two or three options are insufficient: "A more inclusive approach would be to increase options for people to self-define their sex and gender identity."[8]

Like all individuals, some intersex individuals may be raised as a particular sex (male or female) but then identify with another later in life, while most do not.[9][10][11] A 2012 clinical review suggests that between 8.5–20% of persons with intersex conditions may experience gender dysphoria, distress or discomfort as a result of the sex and gender they were assigned at birth.[12] Australian sociological research published in 2016 shows that 19% of 272 people born with atypical sex characteristics participating in the study selected an "X" or "other" option, while 52% are women, 23% men and 6% unsure.[13][14]

According to the Asia Pacific Forum of National Human Rights Institutions, few countries have provided for the legal recognition of intersex people. The Asia Pacific Forum states that the legal recognition of intersex people is firstly about access to the same rights as other men and women, when assigned male or female; secondly it is about access to administrative corrections to legal documents when an original sex assignment is not appropriate; and thirdly, while opt in schemes may help some individuals, legal recognition is not about the creation of a third sex or gender classification for intersex people as a population.[15]

In March 2017, an Australian and New Zealand community statement called for an end to legal classification of sex, stating that legal third classifications, like binary classifications, were based on structural violence and failed to respect diversity and a "right to self-determination". It also called for the criminalization of deferrable intersex medical interventions.[16][17]

In 2012 and under then president Cristina Fernández de Kirchner, Argentina passed its Gender Identity Law (Spanish: Ley de identidad de género), which allows transgender people to identify with their chosen gender on official documents without first having to receive hormone therapy, gender reassignment surgery or psychiatric counseling.[18] As such, transgender rights in Argentina have been lauded by many as some of the world's most progressive.[19]

In November 2018, two non-binary people from Mendoza Province became the first to obtain an ID and birth certificate without indication of sex.[20] In early 2019, trans activist Lara María Bertolini was allowed to change her official sex to the transfeminine non-binary label "travesti femininity" (Spanish: femineidad travesti) through a judicial ruling that was considered a landmark for the travesti movement. Judge Myriam Cataldi felt that the Gender Identity Law applied to Bertolini's case, citing the law's definition of "gender identity" as: "the internal and individual experience of gender as each person feels it, which may or may not correspond to the sex assigned at birth, including the personal experience of the body."[21]

After the decision of the German Federal Constitutional Court (Bundesverfassungsgericht) of 9 November 2017, Austrian media report that a similar case is also pending at the Constitutional Court (Verfassungsgerichtshof) in Austria. Two lower judicial instances already decided against the possibility of a "third gender". Each year at least 35 children in Austria are reported to be born with ambiguous sex characteristics. Surgical interventions on intersex children, to make them fit one of the binary sex characteristics, are criticized by Verein Intergeschlechtliche Menschen Österreich (VIMÖ), an Austrian association fighting for the rights of intersex people. They demand that children should be free to decide on these matters when they are grown up. Johannes Wahala, president of the Austrian Society For Sexologies and head of Beratungsstelle Courage advice center in Graz condemns these operations and wishes for the introduction of a third gender.[22]

On 15 June 2018, the Austrian Constitutional Court reached a decision, published in a news release on 29 June, that Article 8 of the European Convention on Human Rights guarantees recognition of gender identity beyond the binary male or female, and that people with a variation in gender development other than male or female must be allowed to leave a gender entry empty and must be allowed to have a positive other entry implemented. They also found that current law is not in contradiction to these requirements, and can be interpreted in a way that is conformant to the constitutional right of recognition of gender identity via Article 8 of the ECHR. The Court ruled that the national interests listed in Article 8.1 ECHR do not outweigh the very sensible interest of an individual to recognition of their personal life, including gender identity, and that other laws can be adapted if needed. The Court indicate that administrative bodies may require proof of the adequacy of a change to an entry and the relation to a persons actual social life, and that Article 8.1 ECHR does not establish a right to arbitrarily named entries. They have not decided on a specific name a third gender option should have, but cite recommendations as "divers", "inter", "offen". [23] Alex Jürgen was the activist who fought for their right to have a non-binary option in their passport and was the first person in Austria to receive it.

First reported in January 2003, Australians can choose "X" as their gender or sex. Alex MacFarlane is believed to be the first person in Australia to obtain a birth certificate recording sex as indeterminate, and the first Australian passport with an 'X' sex marker in 2003.[24][25][26][27][28] This was stated by the West Australian newspaper to be on the basis of a challenge by MacFarlane, using an indeterminate birth certificate issued by the State of Victoria. Other individuals known to have similar early options include Tony Briffa of Organisation Intersex International Australia and former mayor of City of Hobsons Bay, Victoria, previously acknowledged as the world's first openly intersex public official and mayor.[29][30][31]

Government policy between 2003 and 2011 was to issue passports with an 'X' marker to persons who could "present a birth certificate that notes their sex as indeterminate".[28][32] In 2011, the Australian Passport Office introduced new guidelines for issuing of passports with a new gender, and broadened availability of an X descriptor to all individuals with documented "indeterminate" sex.[33][34] The revised policy stated that "sex reassignment surgery is not a prerequisite to issue a passport in a new gender. Birth or citizenship certificates do not need to be amended."[35]

Australian Commonwealth guidelines on the recognition of sex and gender, published in June 2013, extended the use of an 'X' gender marker to any adult who chooses that option, in all dealings with the Commonwealth government and its agencies. The option is being introduced over a three-year period. The guidelines also clarify that the federal government collects data on gender, rather than sex.[36] In March 2014, the Australian Capital Territory introduced an 'X' classification for birth certificates.[37]

Norrie May-Welby is popularly – but erroneously – often regarded as the first person in the world to obtain officially indeterminate, unspecified or "genderless" status.[5][6][38] May-Welby became the first transsexual person in Australia to pursue a legal status of neither a man nor a woman, in 2010.[5][6][39] In April 2014, the High Court of Australia ruled that NSW Registry of Births, Deaths and Marriages must record in the register that the sex of May-Welby is "non-specific".[40] The Court found that sex affirmation "surgery did not resolve her sexual ambiguity".[41]

An alliance of organizations including the National LGBTI Health Alliance, Organisation Intersex International Australia and Transgender Victoria has called for X to be redefined as non-binary.[42]

In March 2017, an Australian and Aotearoa/New Zealand community statement called for an end to legal classification of sex, stating that legal third classifications, like binary classifications, were based on structural violence and failed to respect diversity and a "right to self-determination".[16][17]

In April 2019, Tasmania became the first state or territory in Australia to make sex or gender identifiers in birth certificates optional and providing for official definitions for 'sex' and 'gender' (only 'sex' was defined before the reforms).[43][44] The reform was legislated by a non-government coalition of MPs and adopted a 'opt-in' model for sex identification on birth certificates. However, a binary classification of sex (male or female, with no intersex/unspecified option) is still collected for medical purposes. Children born with ambiguous genitalia are given an additional 60 days to choose a sex for registration. The child's sex will be displayed on the birth certificate only if the parents choose to opt-in. The same reforms also allowed persons over the age of 16 to change their gender identity on official documentation – without a sex reassignment surgery or hormone replacement therapy – by providing a gender declaration.

In June 2019, the Constitutional Court of Belgium struck down certain parts of the country's 2017 transgender law. The proceedings against the law were initiated by LGBT rights organizations, who argued that the law still discriminated against people with a non-binary or genderfluid identity, because it still only allowed people to register as either "male" or "female". The Constitutional Court agreed with the action brought against the law, and found the contested provisions to be discriminatory and therefore unconstitutional. Though the Court suggested a few ways in which to remedy the unconstitutional aspects, such as "the creation of one or more additional categories" or "the possibility to remove the registration of sex or gender as an element of a person’s civil status", it also stressed that the responsibility to remediate the law's shortcomings remained with the legislature.[45][46][47]

The De Croo Government, Belgium's federal government which took office in October 2020, announced plans to introduce the possibility to register under the gender identifier "X", in order to address the judgment of the Constitutional Court. This was expressed by the new minister of Justice in the De Croo Government, Vincent Van Quickenborne, in November 2020.[48][49]

In June 2016, the government of the province of Ontario announced changes to the way gender will be displayed on health cards and driver's licenses. Starting June 13, the Ontario health card no longer displays a sex designation. In early 2017, Ontario drivers will have the option to display "X" as a gender identifier on their driver's licenses.[50]

In April 2017, a baby born in British Columbia, Searyl Atli Doty, became the first in the world known to be issued a health card with a gender-neutral "U" sex marker. The parent, Kori Doty, who is non-binary transgender, wanted to give the child the opportunity to discover their own gender identity.[51][52] The province has refused to issue a birth certificate to the child without specifying a gender; Doty has filed a legal challenge.[52][53] Doty and seven other transgender and intersex people have filed a human rights complaint against the province, alleging that publishing gender markers on birth certificates is discriminatory.[53]

In July 2017, the Northwest Territories began allowing "X" as a non-binary option on birth certificates.[54]

On August 31, 2017, the federal government began allowing an observation to be added to passports requesting that the holder's gender should be read as "X", indicating that it is unspecified, though a gender of "M" or "F" had to be added as a gender for an undefined period to comply with legal requirements of other countries.[55][56][57] In June 2019, Immigration, Refugees and Citizenship Canada announced that non-binary people may also apply to have an "X" gender marker.[58]

According to comment by Transgender Europe, Danish citizens (including Greenlandic- and Faroese nationals) have been issued passport with option 'X' upon application, without medical requirements.[59] However, it follows from the Danish Passport Regulations [60][61][62] that persons with even personal identification numbers receive the gender marker "F" and persons with odd personal identification numbers the gender marker "M" (§ 4(4)), with the only exception that persons who have not (yet) had an official gender change but to whom the National Hospital's Sexological Clinic has certified that they are transsexual can obtain the gender marker "X" (§ 4(5)). Accordingly, legal gender remains binary in Denmark (including Greenland and the Faroe Islands) and only transsexual people without a legal gender change can obtain an X marker in their passport.

October 13, 2018: Protest in support of 3rd gender in front of the Bundeskanzleramt

Passport with gender marker "X"

Germany is thought to be the first European country that recognizes "indeterminate" sex on birth certificates, which is materialized by the absence of any gender marker, from November 2013. A report by the German Ethics Council stated that the law was passed because "Many people who were subjected to a 'normalizing' operation in their childhood have later felt it to have been a mutilation and would never have agreed to it as adults."[63] Deutsche Welle reported that an "indeterminate" 'option' was made available for the birth certificates of intersex infants with ambiguous genitalia on 1 November 2013.[63] The move is controversial with many intersex advocates in Germany and elsewhere suggesting that it might encourage surgical interventions, or simply fails to address the key health concerns of intersex people.[63][64][65][66] On 21 January 2015, the Celle Court of Appeals confirmed in a judgment[67] that intersex people cannot obtain a gender marker other than "female" or "male" in their birth certificate, but only the absence of any such marker. The court held at the same time that even an adult intersex person who was registered with a gender marker at birth can obtain the deletion of that gender marker. This judgment was sent for review by the Federal Court of Justice.[1]

On 8 November 2017, the Federal Constitutional Court released a press statement about its ruling from 10 October 2017, which is in favour of a positive third gender option instead of no entry.[68] On 15 August 2018, the German government approved a draft law allowing a third gender option on birth certificates for babies who are not distinctly male or female.[69] On 22 December 2018, the adopted act entered into force, allowing the choice for intersex people (both at birth and at a later age) between "female", "male", "diverse" and no gender marker at all. In case of a change later in life, first names can also be changed.[70] To change the marker and/or names according to this law, a doctor's note is required, but it is not specified what kind of "variance of gender development" is required for the law.[71] As such, non-intersex non-binary people have made use of this law to change their markers and names as personally trusted doctors approve and give out such a required note nevertheless. In the meantime, an appeals court had held that a nonbinary status must also be open to non-intersex non-binary people; the adopted act does not address this category of people and their situation therefore first remained unclear pending additional case-law.[72] On 22 April 2020, the Federal Court of Justice ruled that in order to obtain nonbinary status, these persons must follow the procedure foreseen in the legislation on transsexuality which applies by analogy, after which they can also choose between "diverse" and no gender marker at all.[73]

In June 2019, the Icelandic Parliament voted 45–0 on a bill to implement a progressive "self-determination gender change model law", similar to numerous European and South American countries. The bill includes a third gender option known as "X" on official documents.[74][75][76][77] The law went into effect on 1 January 2020.[78]

Aravanis—the Hijra "brides" of Aravan—mourn his death

The Hijra of India are probably the most well known and populous third sex type in the modern world – Mumbai-based community health organization The Humsafar Trust estimates there are between 5 and 6 million hijras in India. In different areas they are known as Aravani/Aruvani or Jogappa. Often (somewhat misleadingly) called eunuchs in English, they may be born intersex or apparently male, dress in feminine clothes and generally see themselves as neither men nor women. Only eight percent of hijras visiting Humsafar clinics are nirwaan (castrated). Indian photographer Dayanita Singh writes about her friendship with a Hijra, Mona Ahmed, and their two different societies' beliefs about gender: "When I once asked her if she would like to go to Singapore for a sex change operation, she told me, 'You really do not understand. I am the third sex, not a man trying to be a woman. It is your society's problem that you only recognize two sexes.'"[79] Hijra social movements have campaigned for recognition as a third sex,[80] and in 2005, Indian passport application forms were updated with three gender options: M, F, and E (for male, female, and eunuch, respectively).[81] Some Indian languages such as Sanskrit have three gender options.

In November 2009, India agreed to list eunuchs and transgender people as "others", distinct from males and females, in voting rolls and voter identity cards.[4] On April 15, 2014, the Supreme Court of India recognized a third gender that is neither male nor female, and as a class entitled to reservation in education and jobs, stating "Recognition of transgenders as a third gender is not a social or medical issue but a human rights issue." This verdict made India one of the few countries to give this landmark judgment.[82][83]

In addition to the feminine role of hijras, which is widespread across the subcontinent, a few occurrences of institutionalized "female masculinity" have been noted in modern India. Among the Gaddhi in the foothills of the Himalayas, some girls adopt a role as a sadhin, renouncing marriage, and dressing and working as men, but retaining female names and pronouns.[84] A late-nineteenth century anthropologist noted the existence of a similar role in Madras, that of the basivi.[85] However, historian Walter Penrose concludes that in both cases "their status is perhaps more 'transgendered' than 'third-gendered.'"[86]

In April 2014, Justice KS Radhakrishnan, of Supreme Court of India declared transgender to be the third gender in Indian law, in a case brought by the National Legal Services Authority (Nalsa) against Union of India and others.[87][88][89] The ruling said:[90]

Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex. Our society often ridicules and abuses the Transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society's unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change.

Justice Radhakrishnan said that transgender people should be treated consistently with other minorities under the law, enabling them to access jobs, healthcare and education.[91] He framed the issue as one of human rights, saying that, "These TGs, even though insignificant in numbers, are still human beings and therefore they have every right to enjoy their human rights", concluding by declaring that:

1. Hijras, Eunuchs, apart from binary gender, be treated as "third gender" for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.
2. Transgender persons' right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.[90]

In May 2018, Leonne Zeegers was the first Dutch citizen to receive the “X” marked gender on the passport instead of "male" or "female" (see photo of the person's passport here). Leonne, then 57, was born intersex and raised male, before having gender reassignment surgery and become female, but still identifies as an intersex person. Leonne won a court case which meant that preventing someone from registering officially as gender neutral is a "violation of private life, self-determination and personal autonomy". It will, however, still be the decision of the court on whether the “X” will be issued on anyones passport in the future. The ruling opened doors for Dutch LGBT groups to ask the government for anyone to be able to identify as gender neutral in the future.[92]

On December 27, 2007, the Supreme Court of Nepal issued a decision mandating that the government scrap all laws that discriminated based on sexual orientation and/or gender identity and establish a committee to study same-sex marriage policy.[93] The court also established a third-gender category.[93] Nepalese official documents afford citizens three gender options: male, female, and "others".[93] This may include people who present or perform as a gender that is different from the one that was assigned to them at birth.[93] Nepal's 2011 census was the first national census in the world to allow people to register as a gender other than male or female.[93] However, it was reported that "logistical problems, discrimination on the part of census-takers, and fear among some third genders" were interfering with the process, and eventually the census was published only listing male and female, leaving non-binary people outside or forcing them in a gender that wasn't their own.[94] The 2007 supreme court decision ordered the government to issue citizenship ID cards that allowed "third-gender" or "other" to be listed.[93] The court also ordered that the only requirements to identify as third-gender would be the person's own self-identification.

“Legal provisions should be made to provide for gender identity to the people of transgender or third gender, under which female third gender, male third gender and intersexual are grouped, as per the concerned person’s self-feeling[95]”

More recent material indicates that this third option is not available to intersex persons.[3]

Birth certificates are available at birth showing "indeterminate" sex if it is not possible to assign a sex. The New Zealand Department of Internal Affairs states, "A person’s sex can be recorded as indeterminate at the time of birth if it cannot be ascertained that the person is either male or female, and there are a number of people so recorded."[96]

Passports are available from December 2012 with an 'X' sex descriptor, where "X" means "indeterminate/unspecified".[97][98] These were originally introduced for people transitioning gender.[99]

On 17 July 2015, Statistics New Zealand introduced a new gender identity classification standard for statistical purposes. The classification has three categories: male, female, and gender diverse. Gender diverse can be further divided into four subcategories: gender diverse not further defined, transgender male to female, transgender female to male, and gender diverse not elsewhere classified.[100][101]

In March 2017, an Aotearoa/New Zealand and Australian community statement called for an end to legal classification of sex, stating that legal third classifications, like binary classifications, were based on structural violence and failed to respect diversity and a "right to self-determination".[16][17]

In Pakistan, the polite term is khwaja sara or "khwaja sira" (Urdu: خواجه سرا), as hijra and khusra are considered derogatory by the khawaja sara community and human rights activists in Pakistan.[102][103] As most of Pakistan's official government and business documents are in English, the term "third gender" has been chosen to represent individuals (either male or female, neither, and/or both) that identify themselves as, transsexual, transgender person, cross-dresser (zenana in Urdu), transvestite, and eunuchs (narnbans in Urdu).[104][105]

In June 2009, the Supreme Court of Pakistan ordered a census of khawaja sara, who number between 80,000[106] and 300,000 in Pakistan.[107] In December 2009, Iftikhar Muhammad Chaudhry, the Chief Justice of Pakistan, ordered that the National Database and Registration Authority[106] issue national identity cards to members of the community showing their distinct gender.[107][108] "It's the first time in the 62-year history of Pakistan that such steps are being taken for our welfare", Almas Bobby, a khawaja sara association's president, said to Reuters, "It's a major step towards giving us respect and identity in society. We are slowly getting respect in society. Now people recognize that we are also human beings."[107]

In January 2018, it was announced that plans to introduce a third gender option on identification documents, such as passports and the National Identification cards, would be implemented in the near future. In November 2018, Chen Mei-ling, the Minister of the National Development Council, announced that these plans come into effect in 2020.[109][110]

Nong Tum, a transgender Muay Thai boxer

Also commonly referred to as a third sex are the kathoeys (or "ladyboys") of Thailand.[111] These are people whose assigned sex was male who identify and live as female. A significant number of Thais perceive kathoeys as belonging to a third gender, including many kathoeys themselves; others see them as second category women.[112] Thai persons assigned male at birth undergoing sex-change operations are not uncommon occurrences, but they are still regarded as men on their identification documents. Despite this, Thai society remains one of the world's most tolerant towards kathoeys or the third gender.[113] Researcher Sam Winter writes:

We asked our 190 [kathoeys] to say whether they thought of themselves as men, women, sao praphet song ["a second kind of woman"] or kathoey. None thought of themselves as male, and only 11 percent saw themselves as kathoey (i.e. ‘non-male’). By contrast 45 percent thought of themselves as women, with another 36 percent as sao praphet song... Unfortunately we did not include the category phet tee sam (third sex/gender); conceivably if we had done so there may have been many respondents who would have chosen that term... Around 50 percent [of non-transgender Thais] see them as males with the mistaken minds, but the other half see them as either women born into the wrong body (around 15 percent) or as a third sex/gender (35 percent)."[112]

In 2004, the Chiang Mai Technology School allocated a separate restroom for kathoeys, with an intertwined male and female symbol on the door. The 15 kathoey students are required to wear male clothing at school but are allowed to sport feminine hairdos. The restroom features four stalls, but no urinals.[114]

Although Kathoeys are still not fully respected, they are gradually gaining acceptance and have made themselves a very distinct part of the Thai society. This is especially true in the entertainment, business, and fashion industries in Thailand, where the Kathoeys play significant roles in leadership and management positions. In addition, Kathoeys or second-category-women are very sought after when businesses are hiring salespeople. In many job posts, it is common to see companies state that second-category-women are preferred as their sales force because they are generally seen as more charismatic and expressive individuals.[115]

The title "Mx.", is widely accepted in the United Kingdom by government organisations and businesses as an alternative for non-binary people while HESA allows the use of non-binary gender markers for students in higher education.[116] In 2015 early day motion EDM660 was registered with Parliament.[117] EDM660 calls for citizens to be permitted access to the X marker on passports. When the text of EDM660 came to light in 2016 a formal petition was launched through the Parliamentary Petitions Service calling for EDM660 to be passed into law.[118][119]

In September 2015 the Ministry of Justice responded to a petition calling for self-determination of legal gender, saying that they were not aware of "any specific detriment" experienced by nonbinary people unable to have their genders legally recognised.[120] In January 2016 the Trans Inquiry Report by the Women and Equalities Committee called for nonbinary people to be protected from discrimination under the Equality Act, for the X gender marker to be added to passports, and for a wholesale review into the needs of nonbinary people by the government within six months.[121] This did not happen. In June 2018 the British High Court ruled against a bid for passports to have an X marker.[122]

The Scottish Government undertook a public consultation on Reforms to the Gender Recognition Act 2004 (GRA) from 9 November 2017 to 1 March 2018.[123] The 2004 GRA sets out the legal process by which someone can change their legally recognised gender. The consultation analysis explains that 60% of those answering the question, agreed with the proposal to introduce a self-declaratory system for legal gender recognition. Point 66 in the analysis document reads "A majority of respondents, 62% of those answering the question, thought that Scotland should take action to recognise non-binary people. Of the remaining respondents, 33% did not think Scotland should take action and 4% did not know."[124] A draft bill for reforming the 2004 GRA is to be proposed by the end of 2019. However, in their factsheet, the Scottish Government say they will not be extending legal gender-recognition to non-binary people. Instead they are intending to set up working group to consider what more could be done to further the inclusion of non-binary people in society.[125]

In March 2020, a judge ruled that the lack of nonbinary gender marker on UK-issued passports was lawful "for now", but noted that "if the international trend towards more widespread official recognition of “non-binary” identity continues, then at some future date, denial could constitute a breach of human rights."[126]

On 14 July 2020, International Nonbinary Day,[127] MP Christine Jardine brought a private member's bill backed by LGBT charity Stonewall UK to the House of Commons, calling for the option of an X gender marker on UK-issued passports for nonbinary people.[128] Its second reading will take place in January 2021.[129][130]

On 14 September 2020 an employment tribunal ruled that a non-binary employee was protected under the transition characteristic of the Equality Act 2010, the first legal confirmation that non-binary people are protected by the Act.[131][132]

Jurisdictions that legally recognize a non-binary gender

  Recognition via statute or policy

  Recognition via court order only

  No legal recognition

A number of U.S. jurisdictions allow nonbinary gender markers on identification documents.[133]

On October 26, 2015, LGBT civil rights organization Lambda Legal filed a federal discrimination lawsuit against the United States Department of State for denying navy veteran Dana Zzyym, Associate Director of Intersex Campaign for Equality, a passport because they are, and identify as, neither male nor female.[134] On November 22, 2016, the District Court for the District of Colorado ruled in favor of Zzyym, stating that the State Department violated federal law.[135] The ruling stated that the court found "no evidence that the Department followed a rational decision-making process in deciding to implement its binary-only gender passport policy," and ordered the U.S. Passport Agency to reconsider its earlier decision.[136] On September 19, 2018, a federal judge ruled a 2nd time in favor of Dana Zzyym, deciding that the U.S. State Department refusal to give a passport exceed its authority.[137]

On February 25, 2020, Rep. Ro Khanna introduced legislation in the United States House of Representatives (H. R. 5962) that would add a third gender designation to U.S. passport applications.[138][139]

In June 2017, Washington, D.C. announced that a non-binary "X" gender marker for district-issued ID cards and driver's licenses would become available later in June, with no medical certification required.[140] The D.C. policy change went into effect on June 27, making the district the first place in the U.S. to offer gender-neutral driver's licenses and ID cards.[141]

Since at least October 2018, Arkansas has been issuing driver's licenses with an "X" gender marker upon request. Arkansas has historically operated without a clear public policy for changing gender markers on IDs. However, in December 2010 former Assistant Commissioner of Operations and Administration Mike Munns announced that Arkansas's official policy would be to "allow a licensee to change their gender as requested, no questions asked, no documentation required."[142]

On September 26, 2016, intersex California resident Sara Kelly Keenan became the second person in the United States to legally change her gender to non-binary. Keenan, who uses she/her pronouns and identifies as intersex "both as my medical reality and as my gender identification", cited Shupe's case as inspiration for her petition.[143]

In December 2016, Keenan became the first American recipient of a birth certificate with "intersex" listed under the category of "sex."[144]

In September 2017, California passed legislation implementing a third, non-binary gender marker on California birth certificates, drivers' licenses, and identity cards. The bill, SB 179, also removes the requirements for a physician's statement and mandatory court hearing for gender change petitions.[145][146] The new designation has been available on California drivers' licenses starting January 1, 2019.[147]

On November 30, 2018, Colorado began allowing people who do not identify as male or female to mark X as the gender identifier on their driver's license.[148] Applicants who want to use the X on their driver's licenses complete a form and get a signature from a medical provider or mental health counselor, but are not required to be undergoing any hormonal treatment or surgeries.

On January, 27, 2020, Connecticut Governor Lamont Announces DMV Now Including ‘Non-Binary’ as Gender Option for Driver’s Licenses and ID Cards.[149]

Motor Vehicle Department employees shall not request additional gender-related information beyond that required on the applicable forms or otherwise inquire about the applicant’s private medical history or records.[150]

Effective July 1, 2020.[151]

In December 2019, Illinois passed legislation to allow gender-neutral markers on driver's licenses and ID cards. The changes may take several years to implement, however, due to Illinois' existing six-year contract with IDEMIA to provide ID card services.[152]

On June 11, 2018, Maine began allowing "X" gender markers on state IDs, using a temporary sticker until a 2019 system update.[153]

A law offering an "X" gender marker on driver's licenses and state identification cards has also been passed in Maryland (effective October 1, 2019).[154]

Effective November 12, 2019.[155]

Minnesota began allowing "X" gender markers on state IDs on October 1, 2018. The designation is considered self reported information and does not require documentation. A nonbinary person named Minnesota J. Zappa became the first person to obtain the marker after a struggle with the state Department of Vehicle Services for over a year.[156]

Effective now. [157]

The passage of Assembly Bill A1718 amended state law to allow the State Registrar, effective February 1, 2019, to issue an amended birth certificate with a third designation of "Undesignated/non-binary" to a person upon request.

Obverse of a New Mexico driver identification card showing the 'X' gender designator

The passage of Senate Bill 20 into law in the 2019 session of the New Mexico Legislature amended the Vital Records Act to allow for a third designator on the state's identification documents (in both Real ID Act compliant and non-compliant forms), 'X', to be selected instead of 'F' or 'M' and required only a doctor's signature on the designator change request form instead of a court order as prior. The Motor Vehicle Division of the New Mexico Taxation and Revenue Department began issuing such licenses later that year, although by Q1 2020 the forms for license renewal had not yet been reprinted with the third option shown, instead allowing manual amendment.

In June 2017, legislation was introduced in New York City, the NYC municipal ID has a non-binary option (New York City and New York State have separate departments handling birth certificates) to offer an "X" gender marker for residents' ID cards.[140] In April 2017, the second intersex birth certificate (in which the recipient's "sex" is listed as intersex) in the United States was issued to non-binary intersex writer and activist Hida Viloria.[158]

In late 2016, James Shupe became the first person to receive legal recognition of a non-binary gender in the United States, based on a state court ruling.

On June 10, 2016, a state judge in a Multnomah County, Oregon circuit court ruled that a resident, James Shupe, could obtain a non-binary gender designation. [7] Shupe was represented by civil rights lawyer Lake Perriguey.[159] The Transgender Law Center believes this to be "the first ruling of its kind in the U.S." [7]

On June 15, 2017, Oregon became the first state in the U.S. to announce it will allow a non-binary "X" gender marker on state IDs and driver's licenses, beginning July 1 with no doctor's note required.[160]

As of 2019, in the state of Oregon any person may choose a gender marking of their choosing ("F", "X," or "M" being the options, the field being listed as "sex") on their driver's license or identification card without any requirements of proof of gender.

Oregon also allows a person to amend their birth certificate to include non-binary "X" gender marker as of January 1, 2018.[161][162]

However, in December of 2019, Shupe successfully petitioned the court which granted the "non-binary" gender designation to revert the sex listed on his birth certificate to "male." The petition filed by Shupe described the sex designation of non-binary as "psychologically harmful legal fiction."

On July 30, 2019, the Pennsylvania Department of Transportation announced that they would introduce an official process to request an X gender designation on state driver's licenses in 2020.

Since July 1, 2020 Virginia added gender X on driver’s licenses.[163][164]

In December 2017, Washington state filed an adopted rule to allow a third, non-binary "X" gender marker on amended birth certificates, although certificates will still be initially issued with male or female designations; the rule went into effect on January 27, 2018.[165][166][167] According to the Pennsylvania Department of Transportation website, the new process was rolled out in January 2020.[168]

Since 19 October 2018, new law in Uruguay allows people to change their gender/sex entry on a self-determined basis, including other descriptions than male/female or man/woman, without requiring any medical documents. The law also provides a basis for social protection, anti-discrimination efforts, quotas and reparations.[169]