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California Is First State to Legally Recognize a Third Gender

California Gov. Jerry Brown. (Getty Images)

California Gov. Jerry Brown signed legislation Sunday that allows residents to choose a gender option other than male or female on their official documents. The legislation, which goes into effect in 2019, also will make it easier for transgender people to change their gender identification on birth certificates and driver’s licenses by no longer requiring a statement from a physician verifying that they have undergone “clinical treatment.”

California state Sen. Toni Atkins, who wrote the bill, said, “The Gender Recognition Act will eliminate unnecessary stress and anxiety for many Californians, and it exemplifies the leadership role that our state continues to take in LGBTQ civil rights.”

The Hill reports:

The measure requires California’s registrar to issue new birth certificates to those born in the state who want to identify as a different gender, or as a third nonbinary option known as “intersex.”

It deletes a requirement in state law that an applicant undergo treatment and submit a sworn statement from their physician before changing their gender identity. Instead, applicants must only submit an affidavit affirming that the change would conform to their gender identity.

California is the first state to pass a law of this kind. Oregon and Washington, D.C., issue nonbinary driver’s licenses, but not based on a law. The move is likely to encourage a push for the federal government to accept nonbinary applications for federal documents—an issue already being challenged in a federal court case. The case involves Navy veteran Dana Zzyym, who identifies as intersex and applied for a gender change for a passport, but the State Department declined to accept multiple letters from physicians confirming Zzyym’s gender status. NBC News documented the department’s response:

“The Department is unaware of generally accepted medical standards for diagnosing and evaluating a transition to any sex other than male or female,” reads the State Department refusal letter dated May 1. “Thus, the Department does not accept a medical certification that specifies transition to a sex other than male or female as evidence for the issuance of a passport.”

California’s legislation could be significant in cases like Zzyym’s. Zzyym is applying to change gender for a passport, which requires only a doctor’s note. However, to apply for a passport, a birth certificate and a driver’s license are typically required (to prove citizenship and identity respectively). Beginning in 2019, for intersex individuals these could both be labeled as nonbinary. The California legislation could similarly affect Social Security records. To get a Social Security card, an applicant usually needs to present a birth certificate, meaning the federal government will probably need to begin keeping nonbinary records—at least for California residents applying for Social Security cards or passports.

The legislation raises questions about interstate relations. Idaho, Kansas, Ohio and Tennessee currently refuse to change birth certificates to reflect the gender identity of a person post-transition. This becomes tricky with documents such as driver’s licenses when states rely on other states’ documents to issue them. California’s legislation could act as a catalyst for other states and the federal government to define their positions on gender identity more explicitly.

Brown also signed legislation over the weekend that enables transgender people to change their name during incarceration, which could help them get ahead more easily once they leave the prison system.

Emily Wells
​Emily Wells is an Ear to the Ground blogger at Truthdig. As a journalist, she began as a crime reporter at the Pulitzer-winning daily newspaper, The Press-Enterprise...
Emily Wells

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