A recent civil action filed by LAMBDA Legal highlights a debate ongoing for the past several years on the issue of “sex-markers” in official documentation to the U.S courts. In different instances, plaintiffs and interest groups have sought to challenge the state’s sex-binary classification system when issuing official identification documents such as passports, birth certificates, driver’s licenses and more. Litigation and advocacy around sex-markers in official documentation may be roughly distinguished between groups advocating for easier access to the existing Male /Female categories (“M/F”), mostly by and for the trans community, and to groups asking to break the M/F distinction altogether in favor of an unspecified category: ”X”/”MF”/Unknown/Unspecified. This group is not seeking better access to the existing M/F categories, but is rather pursuing the goal of creating an all-inclusive new category for those who do not identify as males or females, sometimes also referred to as “third sex” or “third gender”.
These challenges were sometimes fruitful in generating administrative adjustments. For example, in 2011 it became possible to mark “X” instead of M/F on passports in Australia. In 2013 Germany approved a change in legislation that allows leaving the “sex” checkbox in birth certificates empty. These developments were presented very positively in the media with headlines like: “Germany got it right by offering a third gender option on birth certificates” in the Guardian, or: “Germany allows ‘indeterminate’ gender at birth” in the BBC, that portrayed them as victories for intersex and LGBT activists. Although the wish to open up sex categories in official documentation seems to be in line with progressive politics, some Intersex advocacy organizations have had misgivings about this line of advocacy. One argument is that being an Intersex or a Trans person does not necessarily dictate a non-specified gender identity and so conjoining intersexuality and transgenderism with non-specified gender identity is incorrect to say the least.
In the U.S context, a case was brought against the Secretary of State and the Director of the Colorado Passport Agency for the United States Department of State on behalf of DANA ALIX ZZYYM, an Intersex activist who asked to be issued a passport “with a gender marker that respects Dana’s identity.” “In the sex field on the Application, Dana accurately listed “Intersex”—instead of “M” or “F”—and, by separate letter, clarified that, “I’m not male or female.” Dana requested “X” as the marker in the sex field of the passport.” According to the claim: “The Constitution prohibits the State Department from discriminating against Dana based on sex or because Dana is a member of a class of people who identify as neither male nor female; and prohibits the State Department from infringing upon Dana’s fundamental rights and liberty interests, including the freedom to travel and right to define and express one’s own identity.”
Although in Dana’s case, the lawsuit is cautious not to associate intersexuality with a specific gender identity: “intersex person eventually may identify as female, male or, less commonly but with some regularity, as both or neither,” a substantial portion of the claim is dedicated to describe Dana’s Intersex traits and history. A connection between Dana’s non-binary biology and non-binary gender identity is implied by conjoining them in the text itself with statements like “Dana, who was born intersex, is neither male nor female” followed by descriptions of Dana’s medical history as an intersex, or addressing Dana’s “intersex nature” as a relevant fact.
This is a somewhat confusing argument with respect to the relationship between sex and gender, and more specifically regarding the relationship between Intersexuality and non-conforming gender identity. If the case is meant to represent the broad category of people with non-specified gender identity, then being an intersex is presumably irrelevant. And yet, it seems that in order to convince people (and judges) that individuals may develop gender identities that do not fit the M/F binary, what could be more perfect than an intersex plaintiff whose biological non-binary sex traits are inborn and ‘nature-made’? Although the relationship between sex and gender identity is largely unknown to science, law, and the activist communities, the inclination to biology is powerful and thus, hard to resist from a legal advocacy position. Although immutability was not clearly stated in Dana’s case, the biology factor seems to function as a strong underlying justification. How does this representation of intersexuality play out for those who have an intersex trait but identify as males or females? Does it imply anything regarding the legitimacy of holding a non-binary gender identity for people who do not have a biological justification? When activists from the pro-gay movement strategically used immutability arguments in order to enjoy the protection of the law, Janet Halley asked whether making inaccurate claims by advocates is warranted simply because they work? Indeed, immutability and biology-based arguments have the merits of persuasiveness, but also some unexpected costs to bear in mind.