People whose identities do not fit into a rigid female/male gender binary have, in many countries, been on a years-long quest to obtain official documents that reflect their identities by using a non-binary “X” marker in lieu of the typical “F” or “M.”

If you have never questioned your assigned gender, you may wonder why access to non-binary gender markers is a human rights issue worthy of lengthy court battles or legislative advocacy. 

The European Court of Human Rights ruled in a 2017 decision – addressing the transition between female and male genders, not non-binary identities – the “conflict between social reality and law” that arises when the government does not recognize a person’s gender identity constitutes “serious interference with private life.” The same is true for those who do not consider themselves female or male. State compulsion to choose one or the other seems precisely the kind of interference the court sought to mitigate.

A mobilizing axiom of the trans rights movement is “Your sex is what’s between your legs; your gender is what’s between your ears.” It is an argument that undergirds the right to change one’s official sex marker – which is read, socially, as a gender marker. Just as transgender activists have fought for pathways to gender marker change from female to male or vice versa, non-binary activists logically query why anyone should be forced into an F or M if there are countless variations on what is between a person’s ears.

After all, gender variant people have existed throughout the world and across time, celebrated in some cultures, denigrated in others. Some societies recognized people who embodied a gender identity beyond the binary, for example, hijra communities in South Asia, two-spirit people among some Native American cultures, waria in Southeast Asia and Fa’afafine in Pacific Islander communities. While the blunt classificatory instruments of colonial rule imposed new bureaucracies of gender assignment, these communities persist and continue to provide alternate ways of thinking about gender that evade binary classification.

At least ten countries do allow for people to opt for an “X” gender marker under at least some circumstances, though progress has often required lengthy court battles. In some cases, courts have only availed “X” gender markers to intersex people – people born with chromosomes, gonads, sex organs, or genitalia that differ from those seen as typical for girls or boys – but have not extended such recognition to non-binary people who are not intersex. Such rulings are anachronistically rooted in the precept that gender markers should be a reflection of biology or body parts.

When it is recognition of gender identity, not intersex status, that is at stake, progress has. In the UK, the Court of Appeal held in March of 2020 that human rights norms did not impose a positive obligation on the state to provide an “X” marker option in passports. The petitioner, Christie Elan-Cane, who is non-gendered and had brought the case to secure a non-binary gender marker on their passport, described the impact as being told to continue to “collude in their own social invisibility.”

British passports list a person’s “sex” but have given a nod to trans people’s gender identity since 2004, when the European Court of Human Rights ruled in Goodwin that transgender people could change their sex markers from female to male or vice versa to reflect their gender identities. But the Elan-Cane ruling means that people who do not identify as female or male will not benefit from such recognition of their identities.

Human Rights Watch submitted an amicus brief in Elan-Cane’s case, pointing out that a 2018 Government Equalities Office survey of over 100,000 LGBT+ people in the UK found that 7 per cent of respondents identified as non-binary. Among transgender respondents, fifty-two per cent were non-binary, and many told survey-takers that they experienced the absence of non-binary gender markers as a harm. As one put it: “Every time I fill in a form, with a few notable exceptions, I am forced to choose a binary gender and title, which is incorrect and upsetting…” If governments are committed to recognizing the rights of transgender citizens and upholding their dignity, they should recognize the identity of those who do not identify as female or male, rather than forcing these citizens to live in discord with their documents.

For many people raised within conventional heteronormative social systems, moving away from rigid gender binaries may feel destabilizing. It may be particularly threatening to those who sit atop social and economic pyramids rooted in patriarchy. When Norrie, a transgender and non-binary person in Australia, applied for an X passport, the Registrar argued that “unacceptable confusion would flow from the acceptance of more than two categories of sex.” This sense of “confusion,” upending patriarchal hierarchies, seems to encapsulate the underlying fear behind states’ reluctance to recognize non-binary (and often, still, transgender) identities.

But evolving interpretations of human rights law suggest that third gender recognition is gaining momentum. With regional courts in Latin America and Europe already affirming that countries must allow citizens to change their gender markers from female to male or vice versa, it seems only a matter of time before an equally strong norm is established around the right to a gender identity that is neither male nor female, or is both. Even some cogs of the global bureaucracy are on board. The International Civil Aviation Organization (ICAO), which sets global regulations for machine readable passports, allows for three sex categories: female, male, or “X” for unspecified.

In the United States, non-binary state identification documents are available in 15 states and the District of Columbia. In February, Congressman Ro Khanna introduced the Gender Inclusive Passport Act, which would require the State Department to issue “X (unspecified)” passports to those who apply for one based on “self-attestation.”

Beyond Gender Markers?

All these developments around gender markers on official documents raise the question: when are gender markers justified at all? In 2016, a group of international experts developed the “Yogyakarta Principles + 10,” a set of principles that explicitly stakes out a progressive expansion of those codified in 2006. Principle 31 states: Everyone has the right to legal recognition without reference to, or requiring assignment or disclosure of, sex, gender, sexual orientation, gender identity, gender expression or sex characteristics. Everyone has the right to obtain identity documents, including birth certificates, regardless of sexual orientation, gender identity, gender expression or sex characteristics. Everyone has the right to change gendered information in such documents while gendered information is included in them.

The principle proposes that since states should “only include personal information that is relevant, reasonable and necessary as required by the law,” states should “thereby end the registration of the sex and gender of the person in identity documents such as birth certificates, identification cards, passports and driver licenses, and as part of their legal personality.”

There is precedent for this. Many countries have removed codification of personal characteristics such as race, religion, or marital status from identity documents. The primary purpose of an identity document is to ensure that the person presenting the ID is who they say they are. Race or gender markers do not create any additional clarity when a person’s appearance does not match stereotypes associated with the marker their document bears.

 Before 1976, US passports did not include a sex marker at all, and the International Civil Aviation Authority only developed standardized passport regulations requiring a sex marker in 1980. In 2012, the ICAO discussed the possibility of removing sex markers from passports; while it decided against any immediate change for various logistical reasons, it determined that “the tangible benefits of not requiring travel documents to display the holder’s gender mean there is still a significant opportunity for ICAO in changing the mandatory requirement in the future.”

Some activists argue that the time is now. Australian and Aotearoa/New Zealand intersex organizations and independent advocates came together in March 2017 to issue the Darlington Statement, setting out “the priorities and calls by the intersex human rights movement in our countries.” The statement describes sex and gender classifications as “upheld by structural violence.” While welcoming the choice to obtain “X” identity documents as an interim measure, the statement asserts a larger goal “not to seek new classifications but to end legal classification systems and the hierarchies that lie behind them.”

In June, the Netherlands issued a policy removing gender markers from its national identity documents, although they will remain on birth certificates. While some countries, including Germany, already issued identity documents without a sex or gender marker, the Netherlands appears to be the first country to remove such markers as a conscious step to promote inclusion of transgender and non-binary people. Advocacy efforts to remove gender markers from documents should be cognizant of the potential need for alternative measures to track and prevent gender discrimination; in some European countries without gender markers on identification documents, authorities may look up an individual’s officially recorded gender marker in the civil registry, when deemed necessary. But as the number of countries allowing “X” designations grows, the shift from two to three recognized genders will intensify examination of what official purpose is served by recording, and boxing people into, any gender.

Gender markers sit within a field of contestation in which bureaucratic systems of classification are at odds with the rich tapestry of human experience. The motto of the Transgender Law Center in the US is, compellingly, “Making Authentic Lives Possible.” As long as people are limited to gender markers that may not adequately describe them, such authenticity will be hard to come by.

Christopher Street West, the nonprofit organization that produces LA Pride, has named a Black transgender woman as president of its board for the first time in its 50-year history. 

Sharon-Franklin Brown, an activist for transgender rights and a former U.S. Navy sailor, will take the reins as previous president of LA Prides board, Estevan Montemayor, leaves Christopher Street West. Something he had planned to do after the 50th anniversary celebration to focus on the 2020 election. Brown, who has been a board member since 2019, will serve the remainder of Montemayor’s term, which will expire October 2021.

Montemayor shares his feelings in a Facebook post stating, “The last 3 years have flown by. I’m so proud of the work we have done and the lessons we have learned. My time with LA Pride has come to an end but my commitment to our fearless and beautiful community will always continue. I’m so proud of my friend Sharon Brown. She is an exceptional and experienced professional who will lead with empathy, inclusiveness, and grace. LA Pride is lucky to have her. I cannot wait to see what she does with the role!”

Madonna Cacciatore, Christopher Street West’s executive director, said she has worked with Brown for more than eight years. The two women have known each other at Christopher Street West and the LA LGBT Center, where Cacciatore previously worked.

“I have known and worked with Sharon for more than eight years of my career at the Los Angeles LGBT Center and Christopher Street West,” said CSW executive director Madonna Cacciatore. “She has never failed to inspire me and those around her through her intentional leadership, unwavering dedication, and her openness and honesty. She is the right person to walk our community into the next chapter of our history.”

Christopher Street West produces one of the nation’s oldest and largest LGBTQ celebrations, prepares to move annual events from its longtime West Hollywood home and places a renewed emphasis on diversity and social justice. 

“It’s never been a more important moment for the LGBTQ-plus community and its allies to continue fighting for all of us,” Brown said in a statement. “As a robust community across Los Angeles, we value inclusiveness and diversity.” She continues to say she is “so humbled to have been appointed … as the first Black trans woman to lead CSW/Los Angeles Pride and our community efforts forward, beyond the pandemic and election, and into the future.”

In July, Christopher Street West announced that it was leaving West Hollywood after more than four decades in the iconic LGBTQ-friendly city. 

The LA Pride Parade and Festival, which have taken place in West Hollywood every summer since 1979, draws hundreds of thousands of people each year and is a major economic driver for local bars, nightclubs, restaurants and other businesses that have been hard-hit by the Coronavirus pandemic.

The nonprofit, in a letter to the West Hollywood City Council, said it would move the parade and festival in 2021. A new location has not been announced.

An activist for transgender rights and a former U.S. Navy sailor, Brown also is the current director of human resources at the Los Angeles LGBT Center.

America — the country known as the land of the free and home of the brave — provides many opportunities for people of color, the LGBTQ+ community, and more minority groups. But this country also deprives a surplus amount financially, mentally and socially. Which leads to a troubling question: Does this land provide a home of safety and justice to all, or only to those deemed as free — the majority?

A night out in Hollywood, California turned into an unimaginable night of terror on Aug, 17 when three transgender influencers were attacked, robbed and ridiculed as bystanders did nothing. The occurrence caught on film and live-streamed turned into an ongoing investigation as no charges were filed due to lack of evidence. The police department recently released all three male suspects arrested, who were allegedly involved in the attack.

Eden Estrada, Jaslene Busanet and Joslyn Allen, affectionately known to their fans as Eden the DollJaslene White Rose and Joslyn Flawless, were waiting for an Uber around 2:15 a.m. when the attack occurred. A man was harassing them earlier in a store before attacking them with objects and anti-trans slurs as bystanders recorded and laughed at the attack on the trio, two being women of color.

“I don’t care if you don’t like me, or aren’t a fan, or even hate me. No one deserves this,” Estrada wrote on Instagram, according to Elle Magazine. “Women like me get murdered on the daily. I recognize my privilege. I know how lucky I am. But what about those who aren’t?

The three transgender influncers: Eden the Doll, Jaslene White Rose, and Joslyn Flawless. Photo courtesy @mefeater on Instagram

Unfortunately, this has not been the only or possibly the last reported attack on transgender people in America. Transgender people have been ridiculed since the start of their exposure across the globe. Transgender people were semi-embraced when the famous record-breaking athlete Bruce Jenner transformed into the news-breaking celebrity Caitlyn Jenner.

Though transgender people have been more accepted in today’s society, there are still many terrifying attacks similar to the case of these three influencers. It has been said that a trans woman of color is mainly targeted due to race and sexuality.

“Transgender and gender non-conforming people face a heightened risk of fatal violence, and Black transgender women are especially vulnerable because of “a toxic mix of transphobia, racism and misogyny,” according to the Human Rights Campaign.

These inescapable attacks subconsciously create a vulnerable population among transgender people as many are scared to live life freely the way America supposedly allows. This can advance mental health difficulties as hate crimes have increased 34 percent between 2017 and 2018, and the most reported deaths of 26 transgender people this year according to HRC.

A majority of transgender people killed in America are Black women. The death of a 17-year-old Black trans girl, Brayla Stone, on June 25 caught the attention of only some across the nation. Stone’s body was located in a car by a path in Little Rock, Arkansas, and allegedly could’ve been an assassination because Stone was a transgender person.

Suicide and attempted suicide rates of transgender people are also high in this country; many transgender individuals have experienced harassment, bullying or even family rejection. All of these factors can stimulate suicide, especially at a young age.

“According to the National Center for Transgender Equality’s 2015 U.S. Transgender Survey, 40 percent of adult respondents reported having attempted suicide in their lifetime — almost nine times the attempted suicide rate in the general U.S. population,” wrote journalist Gwen Aviles in an article for NBC News.

Even the current 45th president of the United States, Donald Trump, attempted to end transgender health protections, which leads to a lack of health benefits and financial stability within this vulnerable community. Though federal Judge Frederic Block blocked Trump’s attempt, the president has said he plans to end protection against discrimination in the health department, demonstrating the actual proclamation of freedom in America.

Despite the severe criticism this community is forced to cope with, transgender people and others in the LGBTQ+ community continue to demand justice for these unlawful crimes and social injustice against their community. They strive to get more recognition for their tragic stories from media outlets and the world.

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HRC knows that mail voting is going to be key for the upcoming election in November. That’s why we’re making sure we educate voters about their voting options, including mail voting, early voting and polling locations on election day.

  • HRC is pushing back against common myths about mail voting through a new video campaign. Check out the first few here.
  • The HRC Foundation & HIT Strategies released research earlier this month showing that voters of color, including LGBTQ voters of color, are seeking safe and secure alternatives to make their voices heard.
  • Earlier this year, HRC also announced a new initiative called Vote Equal, Vote Safe, which is focused on ensuring LGBTQ voters and their allies are able to exercise their right to vote this November.
  • Learn more and register to vote at hrc.org/vote.

CISSIE GRAHAM LYNCH ATTACKS LGBTQ KIDS AT RNC: Said HRC President Alphonso David (@AlphonsoDavid), “We knew this rhetoric would come from allies of a President dedicated to attacking LGBTQ people at every opportunity. What is particularly shameful is the targeting of some of the most vulnerable in our community: transgender kids. Cissie Graham Lynch’s comments were despicable and must be widely condemned by anyone who claims to be an ally of LGBTQ people. To Trump and his allies: we fight for our community and will see you at the ballot box.” More from HRC.

WHAT WE’RE READING WEDNESDAY -- HRC CRITICIZES NATIONAL REPUBLICAN CAMPAIGN COMMITTEE FOR ENCOURAGING ATTACKS ON GINA ORTIZ JONES BASED ON HER SEXUAL ORIENTATION: “These personal, homophobic and transphobic attacks shows how shameless and low Tony Gonzales and the NRCC are willing to go in the race for Texas’s 23rd Congressional District,” said HRC Texas State Director Rebecca Marques (@_RebeccaMarques). “It also shows how shallow their case is against a formidable veteran candidate of color and member of the LGBTQ community.”

BOISE — A federal judge on Monday temporarily blocked Idaho’s new Fairness in Women’s Sports Act, which as of July 1 bars transgender girls and women from competing on collegiate and K-12 women’s sports teams in Idaho.

The court will also allow intervention in defense of the law by two female athletes at Idaho State University who complained of “deflating” competitive losses to a transgender woman at an out-of-state cross country meet, letting them submit testimony and arguments as the case moves forward.

U.S. District Judge David Nye granted a preliminary injunction, stopping the law from taking effect while its constitutionality is challenged in court. Nye did so after outlining harm that challengers of the law would suffer in the near future, saying the law, also known as HB 500, risks withholding equal protection of the law outlined in the U.S. Constitution’s Fourteenth Amendment.

The American Civil Liberties Union of Idaho, in conjunction with the Seattle-based progressive feminist group Legal Voice, filed the lawsuit against the state April 15.

The plaintiffs are Lindsay Hecox, a Boise State University student and transgender distance runner hoping to try out for the university’s women’s track and cross country teams, and a cisgender Boise High School soccer player who is called “Jane Doe” throughout the case because she is a minor. (Cisgender describes people whose gender identity matches the one they were assigned at birth.)

The plaintiffs “will both suffer specific ‘harm for which there is no adequate legal remedy’ in the absence of an injunction,” Nye wrote. “If Lindsay is denied the opportunity to try out for and compete on BSU’s women’s teams, she will permanently lose a year of NCAA eligibility that she can never get back. Lindsay is also subject to an Act that communicates the State’s ‘moral disproval’ of her identity, which the Constitution prohibits. … When Jane tries out for Boise High’s women’s soccer team, she will be subject to the possibility of embarrassment, harassment, and invasion of privacy through having to verify her sex. Such violations are irreparable.”

In addition to forbidding transgender women and girls from competing in school sports on teams that match their gender identity, HB 500 allowed any person to challenge the sex of a female school athlete in Idaho, and girls who were so challenged would have to prove they were female through medical exams. The plaintiff called Jane Doe worried about being forced to undergo that process to verify her sex.

The law and mandatory verification of an athlete’s sex do not apply to athletes on boys’ and men’s sports teams, an omission that Nye pointed out.

Though the court temporarily blocked the rule, Nye wrote that, under Title IX and the equal protection clause in the 14th Amendment, two ISU students supporting the bill had legal standing because of the competitive losses they reported. 

Christiana Holcomb, an attorney representing the ISU students and the Alliance Defending Freedom, a conservative nonprofit in Arizona that worked with Idaho lawmakers in crafting HB 500, was disappointed by the freeze of the bill but said she was “delighted” by the court’s decision to consider the students’ arguments and stakes in the case.

“What it brings is the perspective of female athletes,” she said by phone Monday evening, arguing that the law was “establishing the fair, level playing field that Title IX was meant to create” before its enforcement was paused.

Jeremy Woodson from ACLU of Idaho called the injunction “momentous.”

“Transgender people belong in Idaho, including on school sports teams,” Ritchie Eppink, legal director for the ACLU of Idaho, said in a statement. “This decision will not only protect women and girls, but also the Idaho economy as businesses have made it clear that they do not want to support any attack on transgender students. This is a welcome first step, and our fight for Lindsay, Jane Doe and others impacted by this law is not over.”

The law spurred calls for the NCAA to move its 2021 March Madness tournament games out of Boise; the Board of Governors has yet to make a decision. Additionally, the state of California restricted state-funded travel to Idaho over HB 500 and another new law this year, HB 509, that sets strict criteria for changing gender on a birth certificate; a federal judge earlier this month ruled the latter violated a court order from two years ago.

Though a previous Idaho attorney general analysis raised questions about HB 500’s constitutionality, the Attorney General’s Office declined to comment on the recent development in the case.

The bill was first sponsored by Bonneville County and District 33A Rep. Barbara Ehardt, R-Idaho Falls, earlier this year. She did not immediately respond to a request for comment.

Opposition to HB 500 paralleled that to HB 509. Criticism came from Idaho’s largest employers, human rights advocates, faith leaders and more but the bill passed on largely party-line votes, with nearly all majority Republicans favoring it and legislative Democrats all opposed. Republican Gov. Brad Little signed it into law on March 30.

Reporter Betsy Z. Russell contributed.

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