The Biden administration has announced that the State Department will allow people to choose their gender identity on passports, even if it contradicts their biological sex. It's also looking to add an X marker for those who identify as nonbinary.
Secretary of State Anthony Blinken announced Wednesday that the State Department will update “our procedures to allow applicants to self-select their gender as ‘M’ or ‘F’ and will no longer require medical certification if an applicant’s self-selected gender does not match the gender on their other citizenship or identity documents.”
“The Department has begun moving towards adding a gender marker for non-binary, intersex, and gender non-conforming persons applying for a passport or [Consular Report of Birth Abroad],” continued Blinken.
“We are evaluating the best approach to achieve this goal. The process of adding a gender marker for non-binary, intersex, and gender non-conforming persons to these documents is technologically complex and will take time for extensive systems updates.”
The ACLU, which campaigned for the change, released a statement on Wednesday supporting the Biden administration's decision.
Arli Christian, an ACLU campaign strategist, said the announcement was “an important first step in realizing a whole-of-government policy for accurate IDs.”
“Improved access to accurate passports will have such a profound impact on the lives of trans, intersex, and non-binary folks across the country,” Christian stated.
“Now people will be able to fill out a passport application and indicate M, F, or X — whichever is most appropriate for them. Despite a hateful wave of anti-trans legislation this year, trans, non-binary, and intersex people know who we are and we need recognition of who we are — not permission.”
The change came partly in response to the legal efforts of Dana Zzyym, a U.S. Navy Veteran who identifies as nonbinary and intersex and has been seeking a passport that reflects that identity.
According to court documents, Zzyym was born with both male and female genitalia, having been raised as a male but briefly identifying as female while an adult.
For its part, the State Department had defended its binary system for passports by arguing that it ensured the accuracy and reliability, helped identify individuals ineligible for passports, helped make passport data useful for other agencies, there not being a medical consensus on how to determine if someone was intersex, and that creating a third designation for sex, such as an “X” mark for the gender category, was not feasible.
In May 2020, a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit ruled that three of the five reasons “lacked record support,” leaving the reasons of it helping identify individuals ineligible for passports and it helping to make passport data useful for other agencies intact.
“The State Department acknowledges that some individuals are born neither male nor female. Forcing these individuals to pick a gender thus injects inaccuracy into the data,” stated the panel.
“A chef might label a jar of salt a jar of sugar, but the label does not make the salt any sweeter. Nor does requiring intersex people to mark ‘male’ or ‘female’ on an application make the passport any more accurate.”
However, because the circuit panel did conclude that two of the reason were valid, they sent the case back down to the district court, albeit with the order that the State Department “reconsider Zzyym’s application for an intersex passport.”