A step forward or missing the mark: will non-binary passports help the queer community?

TW: transphobia 

Dana Zzyym became a part of US history at the end of last month by being issued the first US passport with an ‘X’ gender marker. After suing the US State Department in 2015 for previously being denied a passport on the grounds of not completing the gender identification section of the application, the 66-year-old non-binary and intersex veteran was issued with the document this October.

Zzyym’s case can be seen to have pushed the progression of the policy through three consecutive administrations. Their passport application was initially denied back in 2015 within Barack Obama’s administration (in the same year the Supreme Court had just legalised gay marriage), the final ruling of their case came in 2018 during the Trump years, and their passport was finally issued last month with President Biden in office.  

For Biden’s government, this represents a massive win – contributing to the president’s desire to improve LGBT+ rights in the US and across the world. However, with a wave of anti-trans legislation still in play across the US, is this move simply a symbolic one by the federal government to distract from its failures to tackle everyday discrimination?

With more people feeling comfortable with expressing their fluid gender identities or gender identities beyond the binary, the move is seen as a step forward for non-binary Americans and their rights. Intersex individuals – whose biological make-up does not fit into either the ‘male’ or ‘female’ definitions – are also seen to have benefited from the decision by the US State Department, a major step in their acknowledgement in legal spheres.

Such individuals hold a high cultural and social revere

Non-binary identities have massively predated modern-day geographical borders and the documentation needed to cross them. From the Hawaiian Mahu to the Native American Two-Spirit, conceptions of those beyond the binary have existed in non-European communities for centuries past. Such individuals hold a high cultural and social revere, intrinsically tied to these self-expressions. 

In a similar way, intersex individuals have also been present throughout history but notably erased in a pursuit to make sex a binary concept too. Despite science defining sex by a combination of genitalia composition and chromosomal make-up, many people’s genetic make-up does not sit within these two rigid boundaries. An estimated 1.7% of the world’s population have intersex traits, which is roughly the same percentage of people with naturally red hair. 

However, the colonial enforcement of the European conceptions of gender and sex have come to dictate scientific and social constructions across the globe. With this in mind, the move from the US federal government is seen to be a big leap forwards, giving legal recognition to both non-binary and intersex individuals.

It’s like I was not a citizen of this country

– Dana Zzyym

Granting gender non-conforming or intersex individuals the ability to travel across the world and be globally recognised is a massive deal for those like Zzyym, who felt criminalised for their identity. They said: “it’s like I was not a citizen of this country because I was denied access to leave and only felons and prisoners are not allowed to travel.”

Now enabling the travel of non-binary and intersex Americans, there’s also a potential for greater global recognition of non-binary and intersex individuals too. Despite a greater awareness of non-binary identities in multiple nations in recent years, governments may not be aware of the international scope of non-binary people fighting for their rights, and view the activism as insular instead. Through having more gender non-conforming individuals coming in through borders, it may persuade governments to recognise their own non-binary citizens.

The UK’s Supreme Court began hearing the case for gender neutral markers in July of this year after the Court of Appeals denied Christie Elan-Pane’s appeal for the government to be required to have ‘X’ gender markers. Despite the hearing being held several months ago, a decision is yet to be made. A greater global acceptance of the marker could work in Elan-Pane’s favour.

Furthermore, the requirement of medical documentation to change a gender marker on a passport has been removed for the US. With people no longer having to prove they are transitioning or experiencing gender dysphoria, another barrier to obtaining the passport is removed – a positive move for gender non-conforming or intersex individuals.

But the move by the federal government is arguably nothing revolutionary. Gender neutral markers have been used throughout other forms of documentation in some US states already and on passports in other nations. Ten other nations – Argentina, Australia, Denmark, the Netherlands, Germany, Malta, New Zealand, Pakistan, India, and Nepal – already had a third option for gender identification on legal documents prior to the US introducing it. Additionally, 23 US states currently allow an ‘X’ to be used on at least one form of identification such as, birth certificates or drivers licences.

But the move by the federal government is arguably nothing revolutionary

For intersex people, the issue of passports is also low down upon their agenda. Birth certificates having sex markers in the first place is something that is routinely mentioned by intersex activists along with a constant erasure from the public eye. However, the main battle is against ‘normalising’ the surgery that occurs to try and change intersex infants’ genitals and reductive systems to be perceived as either ‘male’ or ‘female.’ Passports are part of the problem, but not one affecting individuals in their day to day lives.

Additionally, passports can be seen as inaccessible documents. Renewing an adult US passport costs $110 dollars – an extra expense some Americans cannot afford. Coupled with the fact that transgender Americans – and a category non-binary people often fall under legally as their gender identity is not that assigned to them at birth – are 22% more likely to live in poverty than cisgender people, there is a decreased likelihood that they will be able to obtain a passport. 

With the anti-trans lobby in the US (and across the globe) building momentum, this move of the ‘X’ gender marker can also be seen as masking the failure to tackle anti-trans laws put in place by US state legislatures. To some within the trans and non-binary community, the government should be working to provide suitable infrastructures to help reduce discrimination and inequality experienced by non-binary people.

Statistics can be seen to show the extent of violence against the trans community in the US. The Guardian reported 110 anti-trans laws in the US in the past year, coming from across 37 of the 50 states. According to the Human Rights Campaign, 2021 has seen at least 45 trans individuals killed in the US, already superseding the 44 killed the year prior. While unable to differentiate between people who identify specifically as trans or non-binary, they represent the hostility towards gender non-conforming people and an attempt to erase them from society. 

With the Biden Administration appointing Jessica Stern as a special diplomatic envoy to advance LGBT+ rights globally, the inability to tackle trans violence and harmful legislation at home reflects poorly and makes her mission hypocritical. The change in passport marker policy helps to reframe the US as ‘leading’ the way forwards in the world, when the reality for trans and non-binary people is far from equal to that of cis citizens.

But, for the most part, the move has mainly been viewed as a positive. Through generating acceptance comes the demands of greater rights and policies for gender non-conforming individuals, as well as a wider public conversation on non-binary or intersex experiences to encourage greater understanding. 

The positive mental impacts of gender affirmation cannot be diminished

No longer forcing non-binary people to misgender themselves or intersex people to conform to a binary that has been imposed onto science, the decision to introduce a new gender marker is a step forward. The positive mental impacts of gender affirmation cannot be diminished. However, the uptake of the new ‘X’ marker by US citizens and how useful the policy is for non-binary and intersex people in America and abroad can only be revealed with time.