California Is Recognizing A Third Gender — Here's How it Could Impact Other States, Too

Over the weekend, California passed legislation recognizing a third gender option on legal documents issued by the state, including birth certificates and drivers licenses — the first state to do so. Gov. Jerry Brown signed the law Sunday, potentially opening a new battleground for non-binary and transgender rights when the law goes into effect in 2019. The law could have an impact far beyond the Golden State, as other cities, counties, states, and even the federal government come into contact with the new legal documents.

"California's decision to give people with non-binary genders accurate ID is one more important domino falling in the direction of fairness," Hayley Gorenberg of Lambda Legal tells Bustle. "California's model is more accurate: it helps eliminate unfairness and gender bias, and it helps lead the way for the rest of the country, including the federal government, which should regard California's ID documents as further support for changing discriminatory and unconstitutional national passport policy."

Oregon and Washington, D.C. already issue non-binary drivers licenses, but they did not decide to do so based on legislation. More importantly, the inclusion of birth certificates could be the new piece of the puzzle that will further pressure the federal government to accept non-binary applications for federal documents and records, such as passports and Social Security cards.

There is a currently open federal court case examining this. A Navy veteran, Dana Zzyym, who identifies as intersex — being born with neither clear male nor female gender characteristics, differing chromosomes, or hormones that lead to a blur of what society uses to assign someone a gender — applied for a gender change to their passport. (Zzyymm is currently being represented by a Lambda Legal attorney.) The State Department declined, noting in a statement:

The Department is unaware of generally accepted medical standards for diagnosing and evaluating a transition to any sex other than male or female. Thus, the Department does not accept a medical certification that specifies transition to a sex other than male or female as evidence for the issuance of a passport.

A State Department spokesperson tells Bustle that they do not comment on issues related to pending litigation. For now, the department's policies are unchanged.

Herein lies where the passport piece of the puzzle could make things interesting. Zzyym is applying to change the gender on their passport, which is a different procedure than applying for one in the first place. To change the passport, all that is needed is a doctor's note. But to get one in the first place, a birth certificate (for citizenship) and drivers license (for identity) are used. For Californians, those could both read "X" or non-binary come 2019.

The same could also apply to the Social Security Administration and other federal agencies. To get a Social Security card, you need to present a birth certificate in most cases, both for children and adults. For Californians, this could mean that the SSA will be forced to keep similar non-binary records. Even for changing a record, a birth certificate is allowed, meaning non-binary adults could attempt that to update their records.

As Gorenberg says:

The federal government has said it often looks to identity documents issued by state and local governments and by foreign countries in issuing federal ID. More and more of those entities are recognizing that gender isn't limited to M or F. California is just the most recent, after the District of Columbia and Oregon and a host of countries. In our lawsuit we have cited the jurisdictions that issue identification with gender markers in addition to male and female, and now we will cite California as a key example, too.

There are wide ranges on the number of intersex people living in the United States, but it could be as high as nearly 5.5 million according to the Organization Intersex International's United States chapter, or about 1.7 percent of the population. Not all of them identify as non-binary, but plenty of non-intersex people do.

According to studies by the National Center for Transgender Equality, about 35 percent of trans Americans identify as non-binary. That's another potential 245,000 to 350,000 Americans who can't get a passport, Social Security record, and more at the federal level.

The potential for issues at the state and local level is also very real, both for transgender, non-binary, and intersex people. Currently Idaho, Kansas, Ohio, and Tennessee refuse to change birth certificates to correctly reflect the gender of a person following their transition. California is, of course, the only state that will allow for the non-binary option — so for things like drivers license, it gets messy because states rely on other states' documents to issue them.

That's likely (and ironically) one reason why the State Department decided to go for a medical note for a passport gender change, because trans people from certain states would not be able to get a new birth certificate.

Now that California has taken this big step forward on non-binary and intersex rights, it will make the other 49 states and the federal government decide where they stand.