Transgender Vulnerabilities: State-Issued Identity Documents and Third Gender Options

Abstract

Transgender people suffer appalling rates of exclusion, marginalization and physical violence. Existing liberal legal reform efforts to improve their lives have proved ineffective at preventing the violence and has not led to equality for trans people. The Trump Administration’s war on trans people, a mixture of initiatives from removing Title IX and Title VII protections to literally erasing all references to trans people in federal administrative laws and databases have turned back the clock on trans rights of any kind. These initiatives have left many in the trans community feeling more vulnerable than they were prior to the Obama administrations expansion of Title IX definitions of gender as inclusive of both expression and identity. As a result some states and cities have begun experimenting with ways to extend additional legal protections under state and municipal laws and regulations. Until a few years ago the power to classify people by gender in the U.S. resided exclusively with the state and federal governments. Both have been using only the two binary gender options, female and male. Recently this has begun to change as more progressive states and cities have begun making third gender options available to those who do not identify as either female or male. This is a small step forward for transgender acceptance within society, but it also is a revolution in how the state uses “sex designations,” as one of the foundations for legal identity in society. It’s also a huge step forward in legal recognition for those who identify their gender as non-binary . The path from birth to death has legally at least to this point, meant either one or the other. The gendering starts with the delivery doctor making a judgment about your “sex designation” (based on a cursory examination of genitals) as a baby comes out of the womb. This becomes the basis of your legal identity and is recorded on your birth certificate. From this birth certificate, one gets assigned a Social Security Number (SSN) which remains with you your entire life. Eventually it will also become the basis for obtaining a state-issued identity card or driver’s license. For trans individuals, the impacts of sex-specific identity documents such as birth certificates, SSN’s, and driver’s licenses or state-issued identity cards has profound implications as to whether or not they will be able to lead a self-actualized life. As such, trans individuals face a dilemma: how to present and express yourself when your inner identity does not match your state-issued identity documents? The issue of government sanctioned identities, who can be classified as what, and what is required to do so, is also about the fundamental nature of gender and how it is a key site where government power and the medical industrial complex establish and enforce rules that impose binary gender identities onto people by fiat. The medical industrial complex is slowly awakening to its responsibilities to transgender people. However, government (all three branches, state and federal) and the administrative law systems they run on, the very rules for how they function, continue using essentialist definitions of gender as one of the underlying structures of state power. This makes the task of expanding beyond them in favor of acceptance and integration a difficult and multi-faceted problem. Recently the State of Washington as well as other state and municipal jurisdictions around the country have adopted a non-binary “sex designation” as a solution to the problem of identity documents for trans people. The increasing presence of trans people in society, media and popular culture as well as the significant pushback of the Trump Administration against trans acceptance and rights is moving this issue to the forefront of national debates around gender broadly, but more specifically trans phenomena. The most common way this has occurred in public forums is around the question of whether or not trans people have the right to even exist in public spaces, like bathrooms. This research argues that the bathroom problem and trans legal exclusion and marginalization from lack of legal ID congruent with an individual’s identity and expression are similar problems. They share the same sources of misinformation and bias, and this is why issues around identity classification (female, male, or non-binary “X”) have a considerable impact on transgender populations for both good and bad.