As the views of Americans on gender shift, so do the laws across the country —albeit, gradually.
The term non-binary includes any person who does not identify with a gender that falls within the traditional male/female or man/woman category. These new regulations are also inclusionary for citizens born intersex, meaning they have ambiguous genitalia or sexual characteristics from both genders.
People who were born in any of the following US locations, who do not identify as male or female, can legally opt for a 3rd gender category or X marker on their US birth certificate:
- California
- Colorado
- New Jersey
- New York City
- Oregon
- Washington, District of Columbia
LGBTQ rights advocates in multiple US states have been petitioning lawmakers to allow identity documents to be more easily changed to match gender identity.
These representatives defend that strict male and female categories are a form of discrimination against transgender and gender-fluid people whereas they are being labeled by others against their will.
The recognition of this new bill is a significant step for the movement as it progressively provides legal recognition for non-binary genders in different states throughout the US. Laws in some states allow an "X" on birth certificates as well as state-issued identification documents such as drivers' licenses.
Gender "X" on a Birth Certificate
The American Academy of Pediatrics currently identifies 10 different types of sexual development disorders that can lead to both male and female sexual and physical traits. The former medical term for the condition —hermaphrodite— is now considered stigmatizing, and, therefore, discouraged.
Furthermore, the United Nations report that up to 1.7% of the human population is born with both male and female sexual or hormonal traits.
Additionally, a recent study published by The Endocrine Society found about 1 in every 1,000 babies was born with intersex traits.
All of these numbers highlight the need for these individuals to be legally allowed to carry documents that reflect their reality.
Some states —such as Colorado, Michigan, and New Jersey— allow “X” as a 3rd gender option on a birth certificate, to accommodate these citizens. However, they do not allow this gender-neutral option on other state identification documents.
This poses a problem that calls for further legislation to allow effective solutions for individuals that fall within this bracket to obtain other forms of identification that match their gender assignment.
Additionally, trans, intersex, and non-binary people already face marginalization and discrimination even before they are required to select an option that does not fit their reality or experience.
Having an ID that accurately reflects an individual’s reality has many practical benefits, such as:
- It can be emotionally validating for the citizen, eliminating part of the stigma and shame that surrounds having a different body
- It makes government services and benefits available to everyone —citizens with a form of proof of identity that is not accepted by their government due to the “X” marker cannot apply for certain services or benefits
- It provides parents the encouragement to allow their children to make their own decisions as they grow up
Choosing or Changing to Gender-Neutral on a US Birth Certificate
Citizens born in California, Maine, Oregon, New York City, Washington, DC, or Washington State now have 3 gender choices; they are allowed to identify as “X” on state-issued identification documents.
In New York City, for example, parents are permitted to change their child's gender marker to an "X" at any point in time during the child’s first 18 years of life. Nevertheless, they are not allowed to select the gender-neutral option at birth.
Experts explain how this legal option can help parents raise gender-neutral children, allowing kids to establish their own gender if and when they are ready to do so.
This allows parents to update the child’s gender identity so that it is accurately reflected on the minor’s legal documents as the child grows.
Despite the fact that parents are not allowed to choose “X” on their child’s first birth certificate at the time of birth, they can seek to make the change immediately after the document is issued.
The gender “X” option on a birth certificate serves the following purposes:
- Acts as a placeholder until the child is able to self-identify with a gender on their own
- Relieves the pressure on parents to choose a gender during the first days after birth of a child with a sexual variation
- Gives intersex children an inclusive term since some of them present both female and male sexual and/or hormonal traits
- Allows people who do not identify as neither male nor female gender to express this on their legal document
- Eliminates part of the battle that many transgender, gender non-conforming, gender non-binary, gender fluid, genderqueer, and agender people often go through to override or justify non-conformity with their original gender designation
he law also allows adults with a non-binary identity to have their birth certificate amendedto gender-neutral without requiring a note from a medical professional.
In other states, individuals that wish to change the sex marker on their birth certificate are required to provide proof of gender confirmation surgery. This policy change will make it easier and more straightforward for trans and non-binary people to alter their official documents in order to better reflect their gender.
Non-binary birth certificates, ID laws and policies per State
Laws and policies are changing nationwide to allow for non-binary gender markers. As detailed below, some states only allow gender-neutral birth certificates, others only allow gender-neutral state IDs, while yet another group offers both gender-neutral photo IDs such as driver’s licenses as well as birth certificates.
Below you will find a comprehensive table with all the updates regarding gender non-binary policies.
| Non-Binary Gender Markers by State | ||
| State | Non-Binary Birth Certificates | Non-Binary Driver's License / State ID |
| Alabama | Not Available | Not Available |
| Alaska | Not Available | Not Available |
| Arizona | Not Available | Non-binary ID and Death Certificate in the Arizona legislature |
| Arkansas | Not Available | Available |
| California | Available | Available |
| Colorado | Available | Not Available |
| Connecticut | Not Available | Not Available |
| Delaware | Not Available | Not Available |
| D.C. | Available | Available |
| Florida | Not Available | Not Available |
| Georgia | Not Available | Not Available |
| Hawaii | Not Available | Available |
| Idaho | Not Available | Not Available |
| Illinois | Not Available | Available |
| Indiana | Not Available | Not Available |
| Iowa | Not Available | Not Available |
| Kansas | Available | Not Available |
| Kentucky | Not Available | Not Available |
| Louisiana | Not Available | Not Available |
| Maine | Not Available | Available |
| Maryland | Not Available | Available |
| Massachusetts | Not Available | Available |
| Michigan | Available | Not Available |
| Minnesota | Not Available | Available |
| Mississippi | Not Available | Not Available |
| Missouri | Not Available | Not Available |
| Montana | Not Available | Not Available |
| Nebraska | Not Available | Not Available |
| Nevada | Not Available | Not Available |
| New Hampshire | Not Available | Not Available |
| New Jersey | Available | Not Available |
| New Mexico | Not Available | Available |
| New York | Only available for those born in New York City | Non-binary ID and Death Certificate in the NY legislature |
| North Carolina | Not Available | Not Available |
| North Dakota | Not Available | Not Available |
| Ohio | Not Available | Not Available |
| Oklahoma | Not Available | Not Available |
| Oregon | Available | Available |
| Pennsylvania | Not Available | Available |
| Rhode Island | Not Available | Not Available |
| South Carolina | Not Available | Not Available |
| South Dakota | Not Available | Not Available |
| Tennessee | Not Available | Not Available |
| Texas | Not Available | Not Available |
| Utah | Not Available | Available |
| Vermont | Not Available | Available |
| Virginia | Not Available | Available starting July 2020 |
| Washington | Available | Not Available |
| West Virginia | Not Available | Not Available |
| Wisconsin | Not Available | Not Available |
| Wyoming | Not Available | Not Available |
Non-binary birth certificates in California
The state of California no longer defines gender as either male or female, since it incorporated a 3rd option in 2019.
This extends beyond just birth certificates in California and includes other official documents such as driver’s licenses and State ID which all recognize non-binary as a 3rd gender.
The Gender Recognition Act, not only allows for a third gender choice on birth certificates and driver’s licenses but also facilitates the process for the transgender community to modify their gender on documents.
It puts an end to the requirements of sworn written documents provided by their doctors and is replaced by an affidavit by the individual in which they declare that the change aligns with their gender identity.
With this measure, California follows Oregon and Washington, who already recognize non-binary individuals on driver’s licenses and State IDs. However, it was the first state to extend it to birth certificates.
Non-binary birth certificates in New York
New York City passed a law that allows non-binary and gender-nonconforming people to obtain birth certificates that align with their gender identity by presenting a personal affidavit.
Similar to California, no document from a doctor is required to change the sex listed on their birth certificate, making it easier for both transgender people and those defining as non-binary or gender fluid.
In a statement to the press, Council Speaker Corey Johnson, who announced the law, said that the legislation “will make New York birth certificates more inclusive for all and will send a powerful signal to the world that New York City government works for everyone”.
New York City joins other East Side states in their strides to create more inclusive laws. Maine followed suit and started allowing an “X’ on driver’s licenses, as do Vermont , Utah and Minnesota.
Please note that New York City and New York State have separate departments handling birth certificates. Currently, only those born in NYC can obtain birth certificates with the third gender option.
However, all those born in the State of New York can obtain an ID that reflects their gender identity.
Neutral birth certificates in New Jersey
In July 2018, New Jersey Governor Phil Murphy signed a comprehensive birth certificate law which allows people to choose “male,” “female,” or “undesignated/non-binary,” in the sex field, which became effective on 1 February, 2019.
Upon signing the legislation, Governor Murphy said, "Today is an important day for New Jersey as we continue to strive toward equality for all of our residents, regardless of sex or gender expression,"
Having a third option in the sex category will allow babies that are born intersex to be given time to determine how they identify themselves, and families who want to raise their children outside the typical binary system to have that option.
The states mentioned join Washington, DC which allows for the “X” gender on both birth certificates and personal IDs.
Please bookmark this page as it will be regularly updated as soon as new states change their legislation to be more inclusive allowing third gender options in their documentation.