‘Male’? ‘Female’? Or ‘X’? Drive for a Third Choice on Government Forms

By Andy Newman | October 1, 2018

Charlie Arrowood does not identify as male or female. So in January, when a new New York City law takes effect, they plan to modify the sex recorded on their birth certificate to one that fits: “X,” a gender-neutral option.

Arrowood, who is transgender, changed both their name and sex on the certificate last year. But putting “male” instead of “female” on the document did not feel quite right either.

(Charlie Arrowood uses the pronoun “they” and the courtesy title “Mx.,” a gender-neutral alternative to Ms. and Mr.)

Addressing the issue with an “X” on the birth certificate, however, creates another snag.

The New York State Department of Motor Vehicles offers only the options “M” and “F.” So do the federal agencies that administer passports and Social Security.

Yes, this can be very confusing.

“It doesn’t make sense,” Arrowood, a lawyer for the transgender advocacy nonprofit Transcend Legal, said last week. “You can’t keep accurate records if you don’t have an accurate representation of someone.”

As Americans’ views on gender shift, laws are changing across the country to give people more power to define themselves on the official documents that tell the world who and what they are — but only in some places, in some cases.

New York City — whose Council passed a law Sept. 12 creating a designation on birth certificates “to indicate a sex that is not exclusively male or female” — joins California, Oregon and Washington state, which began offering neither-of-the-above birth certificates in January.

Washington has had 26 such change requests so far, California, 16, officials in those states said last week. A similar New Jersey law takes effect next year.

New York City officials do not know how many people might seek the change, but 330 people requested birth certificate changes to male or female last year. If the city’s experience is like that of Washington state, where 11 percent of the changes requested this year have been for “X,” there could be dozens per year here.

Other jurisdictions, like Maine and Washington, D.C., allow a third gender on driver’s licenses but not birth certificates. Still others, like Kansas, forbid any gender change on birth certificates.

A.T. Furuya, who moved to New York City a few weeks ago from California, is familiar with the headaches that arise when information does not align.

Furuya was one of the first people in the country to get a nonbinary birth certificate, in California. But when Furuya went to the California DMV to replace a license a few months later, there were two options: “M” or “F.”

“I asked, ‘Is this going to implicate me for lying to the government?’ They said, ‘We hadn’t thought about that.’”

California will offer nonbinary driver’s licenses starting next year.

Then there are the federal barriers, though a district court judge ruled last week that the State Department could not deny a passport application from a Colorado resident for refusing to select male or female.

“Gender-marker changes are a patchwork of policies across the country,” said Arli Christian, director of state policy for the National Center for Transgender Equality. “That leads to these very tricky questions of when you update one document, what do you get on another?”

Things can be simpler elsewhere in the world. At least 10 countries — Australia, Bangladesh, Canada, Denmark, Germany, India, Malta, Nepal, New Zealand and Pakistan — offer gender-neutral options on passports or national identity cards. India let members of the hijra community put an “E” on their passport — for eunuch — as early as 2005.

As for the New York DMV, a spokeswoman, Lisa Koumjian, said the agency was finding its way.

“The state has taken a number of affirmative steps to protect and advance the civil rights of all New Yorkers, including those who are transgender or gender nonconforming,” she wrote in an email. “We expect to work with the city and the different systems to support this new initiative.”

A state Senate bill to allow “X” on driver’s licenses stalled in committee last year.

New York state’s Department of Health, which studied the implications of nonbinary birth certificates, said it was concerned that they could cause people to be denied Medicaid benefits because the federal and state data sources used by Medicaid to verify eligibility recognize only male and female.

The new New York City birth certificate law, sponsored by the Council speaker, Corey Johnson, also lets people change the sex on their birth certificates without a note from a health professional, a change that transgender advocates had long pushed for.

Arrowood conceded that their gender identity can be difficult for others to understand. Arrowood’s birth certificate, issued at Lenox Hill Hospital in Manhattan 31 years ago, said female.

“I was never transitioning ‘towards male,’” Arrowood said, “but away from female.”

(Furuya said it often takes them a few tries to explain who they are, too. When asked how they identified, they sent a diagram with four category umbrellas and nine subcategories.)

Gretchen Van Wye, assistant commissioner in the city Health Department’s Bureau of Vital Statistics, said that with the new law, the city was struggling to navigate the space between “sex,” the biological category that a birth certificate purports to define, and gender, which is largely seen as more subjective.

“There’s a difference between sex and gender,” she said. “But we conflate those on the birth certificate, and we’re trying to serve the needs of the most while accommodating the requests that we’re getting.” Discrepancies between the sex on someone’s official document and the gender presented in person can lead to discrimination and harassment, advocates say.

Some news reports about the new birth certificate law said that it would also let parents give their newborns the “X” designation, for example if they did not want to impose gender stereotypes. This is not true, nor is it the intent of the law, the Health Department said: “X” will be available only as a change, not a birth sex.

The Health Department adopted this policy at the recommendation of InterACT, a group that gives support to what are called intersex youth — born with anatomy or chromosomes that are not typically male or female.

Intersex children have often been subjected to surgery to “correct” their conditions, something the advocates oppose.

InterACT’s law and policy director, Alesdair H. Ittelson, said that because nonbinary options are not yet widely protected or recognized, putting an “X” on children’s birth certificates can potentially stigmatize them without their consent.

Notwithstanding what is on their children’s birth certificates, a tiny but growing number of parents are raising children as “theybies,” letting them choose a gender when they are ready.

One of them is Nathan Levitt, a nurse practitioner who works at NYU Langone Health with transgender people and has a 20-month-old named Zo. Levitt was raised female and now identifies as transgender male.

He said he wonders “what my life would have been like had I had that opportunity to choose what I most identified with, instead of later on in life realizing this gender doesn’t really fit for me.”

Zo belongs to a gender-open playgroup in Brooklyn that includes three other “theybies.” The playgroup’s founder, Bobby McCullough, whose child, Sojourner, was born in December, persuaded the hospital and the Health Department to give Sojourner an “undetermined or unknown” designation usually reserved for very premature infants.

The “sex” line on Sojourner’s birth certificate reads “****.”

McCullough said he would not want to put an “X” on Sojourner’s birth certificate because it is too limiting.

“I wanted a designation that literally acknowledged that we don’t know if our kid is nonbinary, male or female,” McCullough said. “’X’ is an answer in and of itself.”