THE PATH FORWARD AFTER BABS SIPERSTEIN

As mentioned in our “What is the Babs Siperstein Law?” post, in addition to allowing changes to the gender marker on your birth certificate, the law makes it so that New Jersey birth certificates must provide for an “X” gender marker (for non-binary people or those with an undisclosed gender). However, it will not always be possible to have an X gender marker uniformly across all your identification documents. The Babs Siperstein Law updated the birth certificate process but nothing else in New Jersey.  

The New Jersey Motor Vehicle Commission, through its own policy changes, has adopted processes for changing between M and F but do not yet have an X designation. Additionally, voter registration forms, local government forms, and most private institutions have not yet caught up with the law by having an X or “Other” gender marker in their drop-down menu.  

The New Jersey Supreme Court Committee on Diversity, Inclusion, and Community Engagement (formerly Minority Concerns) has recommended that the Administrative Office of the Courts create a working group to review all court forms to ensure they are updated to reflect the current designations (M, F, X).13  

The New Jersey State Bar Association has also taken action, including ensuring that any policy or bylaw change that has been approved in the past year has either been noted to be gender neutral or has been approved on the condition that it be made gender neutral. The Bar Association has also gone through its policy manual and employee manual to ensure it contains gender neutral language.  

New Jersey still has a long way to go, but it is among the states that are more advanced in regard to including transgender and non-binary identities. Other states, such as California, are on a similar track, with gender marker changes and X-gender markers being made available on identity documents .14 Others such as Nevada, allow X-gender markers and for gender marker changes confirmed by an affidavit from a close acquaintance.15  

Still others such as Washington require that the decision to seek a gender marker change for a child be approved by a licensed medical professional.16 And of course, many states do not make gender-marker changes easily obtainable, like Georgia and Alabama which require proof of a gender-confirming surgery or medical treatment, and Tennessee, which does not allow an individual to change their gender marker on their birth certificate at all, and requires proof of surgery or a court order to change the gender marker on a driver’s license.17 

Federal Uncertainty for X Designations 

With such a lack of uniformity between the states, how, if at all, does an X on your New Jersey documents impact federal documents such as your passport? At this time, there is no federal identification document that has an X option, but this is subject to ongoing litigation. Currently, X gender markers are recognized as acceptable by some international bodies18. But what happens on the ground? Binary and non-binary transgender people report extreme numbers of negative incidents with security while traveling. 43% of respondents to a survey say when they went through airport security in the past year, they experienced a problem related to being transgender, such as being patted down or searched because of a gender-related item, or having the name or gender on their ID questioned, or even being detained.19  

This leads to a discussion of who is most easily able to navigate the world with an X gender marker—inevitably, it will be people with prior legal experience. However, since not all nonbinary people have the benefit of a legal background, they must try to anticipate in advance how other countries will handle issuing visas for U.S. residents with X gender markers in their passports. Will presidential administrations go to bat internationally for X gender marker passport holders? The story of Dana Zzyym provides a somewhat bleak answer to that question. 

In 2014, Dana Zzyym, a U.S. Navy veteran and intersex advocate, was invited to attend the International Intersex Forum in Mexico City to speak about their work and applied for a passport listing their gender as unknown. Zzyym was born with ambiguous sex characteristics, underwent several unnecessary surgeries to be raised as a boy, and later came to identify as nonbinary. Despite the fact that Zzyym’s doctors at the U.S. Department of Veterans Affairs confirmed Zzyym’s gender as intersex, the application was rejected.  

In 2015, Zzyym’s case went to the U.S. District Court for the District of Colorado. The court ruled in Zzyym’s favor in 2016, but in 2017, Zzyym’s application for a passport was once again rejected.20 In 2017, the case was re-opened, and nine states (California, Colorado, Maine, Minnesota, Nevada, New Jersey, Oregon, Vermont and Washington) filed briefs in support of Zzyym’s case.21 In 2019 a federal judge in Denver ruled that Zzyym had the right to a passport, and there was no defensible reason why they shouldn’t be able to obtain one.22 Yet, as of January 2020, Zzyym has still not received a passport.  Meanwhile, the decision is being appealed by the State Department in the 10th Circuit.23 

A core issue to the topic of X-gender markers is a conflict between the legal and the practical: even though it is now legal in some states to have an X gender marker that aligns with gender identity or intersex identity, the practical implications of the policies must be considered as various governing bodies, institutes, and organizations adapt at different paces. The X gender markers are now available in New Jersey, but it is important to consider their reach across state lines and in different countries. If a New Jersey resident gets a court order under the Babs Siperstein Law declaring their gender to be X, will another state have to change that resident’s birth certificate to comply with the court order? 

What is the future of non-binary people in the systems that govern them?  Although X gender markers are being allowed little-by-little, and non-gendered spaces are now beginning to exist, the world is still segregated by the gender binary in many ways.  How can non-binary individuals move about in the world if the use of male and female categories persists?  This and other questions must continue to be considered. 

  1. transequality.org/issues/ resources/understanding-transgen der-people-the-basics 
  1. transequality.org/issues/ resources/understanding-non-binarypeople-how-to-be-respectful-andsupportive 
  1. isna.org/faq/what_is_intersex/ 
  1. law.com/njlawjournal/2018/08/13/in-praise-of-newgender-identity-law/ (accessed May 18, 2020) 
  1. https://www.lambdalegal.org/knowyour-rights/article/trans-changingbirth-certificate-sex-designations (Accessed May 19, 2020) 
  1. glaad.org/blog/thanks-ragecampaign-septa-removes-genderstickers-monthly-transit-passes 
  1. brynmawr.edu/admissions/transgender-applicants wellesley.edu/ news/gender-policy campuspride.org/ tpc/womens-colleges/ (Accessed May 19, 2020) 
  1. converse.edu/about/non-discrimination-policy/ (Accessed May 19, 2020) 
  1. morehouse.edu/genderidentity/ (Accessed May 19, 2020) 
  1. njsiaa.org/sites/default/files/document/Transgender%20Policy%20Ap proved%2011-15-17.pdf (Accessed May 20, 2020) 
  1. ncaa.org/sites/default/files/2018 INC_Supporting_Transgender_And_ Gender_Expansive_Student_Athletes_20180418.pdf. (accessed May 20, 2020) 
  1. pinknews.co.uk/2020/05/02/zarasettlement-non-binary-transgendershopper-alleged-discrimination/ (Accessed May 17, 2020) 
  1. state.nj.us/mvc/pdf/license/genderchange.pdf (Accessed May 17, 2020) 
  1. New Jersey Supreme Court Committee on Minority Concerns, 56 NEW JERSEY LAWYER | AUGUST 2020 NJSBA.COM Content is copyright protected and provided for personal use only – not for reproduction or retransmission. For reprints please contact the Publisher. NJSBA.COM NEW JERSEY LAWYER | AUGUST 2020 57 2017-2019 Biannual Report, Recommendation 2019:05, njcourts.gov/courts/assets/supreme/reports/ 2019/minorityrpt.pdf (Accessed May 22, 2020). This recommendation was approved, in concept, by the New Jersey Supreme Court in its September 15, 2019 Notice to the Bar. njcourts.gov/notices/ 2019/n190905d.pdf?c=6QX (Accessed May 22, 2020) 
  1. dmv.ca.gov/portal/driver-licensesidentification-cards/updating-information-on-your-driver-license-oridentification-dl-id-card/ (Accessed July 17, 2020). dmvnv.com/news/ 19001-gender-x-available.htm (Accessed May 19, 2020) 
  1. doh.wa.gov/LicensesPermitsandCertificates/BirthDeathMarriageandDivorce/SexDesignationChangeonaBirthCertificate (Accessed May 19, 2020) 
  1. lgbtmap.org/equality-maps/identity_document_laws (Accessed May 15, 2020) 
  1. International Civil Aviation Organization, Doc 9303: “Machine Readable Travel Documents) Part 5: Specifications for TD1 Size Machine Readable Official Travel Documents,” 11 (7th Ed. 2015) icao.int/ publications/Documents/9303_p5_c ons_en.pdf (Assessed May 22, 2020) 
  1. National Center for Transgender Equality 2015 Transgender Survey: ustranssurvey.org/ (Accessed May 18, 2020) 
  1. lambdalegal.org/blog/20170626_ state-department-denies-intersexcitizen-passport-again (Accessed May 18, 2020) 
  1. oag.ca.gov/system/files/attachments/press-docs/amicus-briefzzyym-v.pompeo.pdf (Accessed May 18, 2020) 
  1. washingtonblade.com/2019/02/ 22/judge-again-rules-against-statedepartment-in-intersex-passportapplicant-case/ (Accessed May 18, 2020) 
  1. courthousenews.com/fight-overintersex-passport-marker-lands-at10th-circuit/ (Accessed May 18, 2020) 
  1. V.L. v. E.L., 136 S. Ct. 1017, 194 L.Ed.2d 92 (2016). The Alabama Supreme Court erred in refusing to grant full faith and credit to a judgment by a Georgia court making a woman the legal parent of the children she had raised with her same-sex partner since birth; the judgment appears on its face to have been issued by a court with jurisdiction and there is no established Georgia law to the contrary 

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