Legal recognition of non-binary gender
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Multiple countries legally recognize non-binary or third gender classifications. In some countries, such classifications may only be available to intersex people, born with sex characteristics that "do not fit the typical definitions for male or female bodies". In other countries, they may only (or also) be available to people with gender identities that differ from their sex assigned at birth.
Some non-western societies have long recognized transgender and/or non-binary people as a third gender, though this may not (or may only recently) include formal legal recognition. Among western nations, Australia may have been the first to recognize a third classification, following recognition of Alex MacFarlane as having indeterminate sex, reported in 2003. Transgender advocate Norrie May-Welby was recognized as having unspecified status in 2014. In the United States, an Oregon circuit court ruled in 2016 that Jamie Shupe could legally change gender to non-binary.
In recent years, some societies have begun to legally recognize genderqueer, non-binary or third gender identities. Some non-western societies have long recognized transgender people as a third gender, though this may not (or may only recently) include formal legal recognition. Among western nations, Australia may have been the first to recognize a third classification, following recognition of Alex MacFarlane as having indeterminate sex, reported in 2003. Transgender advocate Norrie May-Welby was recognized as having unspecified status in 2014. In 2016, an Oregon circuit court ruled that Jamie Shupe, could legally change gender to non-binary.
The Open Society Foundations published a report, License to Be Yourself, in May 2014, documenting "some of the world's most progressive and rights-based laws and policies that enable trans people to change their gender identity on official documents". The report comments on the recognition of third classifications, stating:
From a rights-based perspective, third sex / gender options should be voluntary, providing trans people with a third choice about how to define their gender identity. Those identifying as a third sex / gender should have the same rights as those identifying as male or female.
People tend to identify a third sex with freedom from the gender binary, but that is not necessarily the case. If only trans and/or intersex people can access that third category, or if they are compulsively assigned to a third sex, then the gender binary gets stronger, not weaker.
The report concludes that two or three options are insufficient: "A more inclusive approach would be to increase options for people to self-define their sex and gender identity."
Like all individuals, some intersex individuals may be raised as a particular sex (male or female) but then identify with another later in life, while most do not. A 2012 clinical review suggests that between 8.5-20% of persons with intersex conditions may experience gender dysphoria, distress or discomfort as a result of the sex and gender they were assigned at birth. Australian sociological research published in 2016 shows that 19% of 272 people born with atypical sex characteristics participating in the study selected an "X" or "other" option, while 52% are women, 23% men and 6% unsure.
According to the Asia Pacific Forum of National Human Rights Institutions, few countries have provided for the legal recognition of intersex people. The Asia Pacific Forum states that the legal recognition of intersex people is firstly about access to the same rights as other men and women, when assigned male or female; secondly it is about access to administrative corrections to legal documents when an original sex assignment is not appropriate; and thirdly, while opt in schemes may help some individuals, legal recognition is not about the creation of a third sex or gender classification for intersex people as a population.
In March 2017, an Australian and Aotearoa/New Zealand community statement called for an end to legal classification of sex, stating that legal third classifications, like binary classifications, were based on structural violence and failed to respect diversity and a "right to self-determination". It also called for the criminalization of deferrable intersex medical interventions.
After the decision of the German Federal Constitutional Court (Bundesverfassungsgericht) of 9 November 2017, Austrian media report that a similar case is also pending at the Constitutional Court (Verfassungsgerichtshof) in Austria. Two lower judicial instances already decided against the possibility of a "third gender". Each year at least 35 children in Austria are reported to be born with ambiguous sex characteristics. Surgical interventions on intersex children, to make them fit one of the binary sex characteristics, are criticized by Verein Intergeschlechtliche Menschen Österreich (VIMÖ), an Austrian association fighting for the rights of intersex people. They demand that children should be free to decide on these matters when they are grown up. Johannes Wahala, president of the Austrian Society For Sexologies and head of Beratungsstelle Courage advice center in Graz condemns these operations and wishes for the introduction of a third gender.
First reported in January 2003, Australians can choose "X" as their gender or sex. Alex MacFarlane is believed to be the first person in Australia to obtain a birth certificate recording sex as indeterminate, and the first Australian passport with an 'X' sex marker in 2003. This was stated by the West Australian newspaper to be on the basis of a challenge by MacFarlane, using an indeterminate birth certificate issued by the State of Victoria. Other individuals known to have similar early options include Tony Briffa of Organisation Intersex International Australia and former mayor of City of Hobsons Bay, Victoria, previously acknowledged as the world's first openly intersex public official and mayor.
Government policy between 2003 and 2011 was to issue passports with an 'X' marker to persons who could "present a birth certificate that notes their sex as indeterminate". In 2011, the Australian Passport Office introduced new guidelines for issuing of passports with a new gender, and broadened availability of an X descriptor to all individuals with documented "indeterminate" sex. The revised policy stated that "sex reassignment surgery is not a prerequisite to issue a passport in a new gender. Birth or citizenship certificates do not need to be amended."
Australian Commonwealth guidelines on the recognition of sex and gender, published in June 2013, extended the use of an 'X' gender marker to any adult who chooses that option, in all dealings with the Commonwealth government and its agencies. The option is being introduced over a three-year period. The guidelines also clarify that the federal government collects data on gender, rather than sex. In March 2014, the Australian Capital Territory introduced an 'X' classification for birth certificates.
Norrie May-Welby is popularly - but erroneously - often regarded as the first person in the world to obtain officially indeterminate, unspecified or "genderless" status. May-Welby became the first transsexual person in Australia to pursue a legal status of neither a man nor a woman, in 2010. In April 2014, the High Court of Australia ruled that NSW Registry of Births, Deaths and Marriages must record in the register that the sex of May-Welby is "non-specific". The Court found that sex affirmation "surgery did not resolve her sexual ambiguity".
In March 2017, an Australian and Aotearoa/New Zealand community statement called for an end to legal classification of sex, stating that legal third classifications, like binary classifications, were based on structural violence and failed to respect diversity and a "right to self-determination".
In June 2016, the government of the province of Ontario announced changes to the way gender will be displayed on health cards and driver's licenses. Starting June 13, the Ontario health card no longer displays a sex designation. In early 2017, Ontario drivers will have the option to display "X" as a gender identifier on their driver's licenses.
In April 2017, a baby born in British Columbia, Searyl Atli Dotl, became the first in the world known to be issued a health card with a gender-neutral "U" sex marker. The parent, Kori Doty, who is non-binary transgender, wanted to give their child the opportunity to discover their own gender identity. The province has refused to issue a birth certificate to the child without specifying a gender; Doty has filed a legal challenge. Doty and seven other transgender and intersex people have filed a human rights complaint against the province, alleging that publishing gender markers on birth certificates is discriminatory.
Germany is thought to be the first European country that recognizes "indeterminate" sex on birth certificates, which is materialized by the absence of any gender marker, from November 2013. A report by the German Ethics Council stated that the law was passed because, "Many people who were subjected to a 'normalizing' operation in their childhood have later felt it to have been a mutilation and would never have agreed to it as adults." Deutsche Welle reported that an "indeterminate" 'option' was made available for the birth certificates of intersex infants with ambiguous genitalia on 1 November 2013. The move is controversial with many intersex advocates in Germany and elsewhere suggesting that it might encourage surgical interventions, or simply fails to address the key health concerns of intersex people. On 21 January 2015, the Celle Court of Appeals confirmed in a judgment that intersex people cannot obtain a gender marker other than "female" or "male" in their birth certificate, but only the absence of any such marker. The court held at the same time that even an adult intersex person who was registered with a gender marker at birth can obtain the deletion of that gender marker. This judgment was sent for review by the Federal Court of Justice.
On 8 November 2017, the Federal Constitutional Court released a press statement about its ruling from 10 October 2017, which is in favor of a positive third gender option instead of no entry. The ruling demands a third gender option to be introduced by 31 December 2018. It decisively points out that a third gender option must be based on gender identity, rather than biological sex, to be in conformance with the general right of personality of German basic law (Grundgesetz). They also recommend that it should be a single option besides male and female, which should include all gender identities that are neither male nor female. The exact wording is still to be determined, "divers" being one possible option that is mentioned, but this choice is left to the legislator.
The Hijra of India are probably the most well known and populous third sex type in the modern world – Mumbai-based community health organization The Humsafar Trust estimates there are between 5 and 6 million hijras in India. In different areas they are known as Aravani/Aruvani or Jogappa. Often (somewhat misleadingly) called eunuchs in English, they may be born intersex or apparently male, dress in feminine clothes and generally see themselves as neither men nor women. Only eight percent of hijras visiting Humsafar clinics are nirwaan (castrated). Indian photographer Dayanita Singh writes about her friendship with a Hijra, Mona Ahmed, and their two different societies' beliefs about gender: "When I once asked her if she would like to go to Singapore for a sex change operation, she told me, 'You really do not understand. I am the third sex, not a man trying to be a woman. It is your society's problem that you only recognize two sexes.'" Hijra social movements have campaigned for recognition as a third sex, and in 2005, Indian passport application forms were updated with three gender options: M, F, and E (for male, female, and eunuch, respectively). Some Indian languages such as Sanskrit have three gender options.
In November 2009, India agreed to list eunuchs and transgender people as "others", distinct from males and females, in voting rolls and voter identity cards. On April 15, 2014, the Supreme Court of India recognized a third gender that is neither male nor female, and as a class entitled to reservation in education and jobs, stating "Recognition of transgenders as a third gender is not a social or medical issue but a human rights issue." This verdict made India one of the few countries to give this landmark judgment.
In addition to the feminine role of hijras, which is widespread across the subcontinent, a few occurrences of institutionalized "female masculinity" have been noted in modern India. Among the Gaddhi in the foothills of the Himalayas, some girls adopt a role as a sadhin, renouncing marriage, and dressing and working as men, but retaining female names and pronouns. A late-nineteenth century anthropologist noted the existence of a similar role in Madras, that of the basivi. However, historian Walter Penrose concludes that in both cases "their status is perhaps more 'transgendered' than 'third-gendered.'"
In April 2014, Justice KS Radhakrishnan, of Supreme Court of India declared transgender to be the third gender in Indian law, in a case brought by the National Legal Services Authority (Nalsa) against Union of India and others. The ruling said:
Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex. Our society often ridicules and abuses the Transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society's unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change.
Justice Radhakrishnan said that transgender people should be treated consistently with other minorities under the law, enabling them to access jobs, healthcare and education. He framed the issue as one of human rights, saying that, "These TGs, even though insignificant in numbers, are still human beings and therefore they have every right to enjoy their human rights", concluding by declaring that:
- Hijras, Eunuchs, apart from binary gender, be treated as "third gender" for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.
- Transgender persons' right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.
On December 27, 2007, the Supreme Court of Nepal issued a decision mandating that the government scrap all laws that discriminated based on sexual orientation and/or gender identity and establish a committee to study same-sex marriage policy. The court also established a third-gender category. Nepalese official documents afford citizens three gender options: male, female, and "others". This may include people who present or perform as a gender that is different from the one that was assigned to them at birth. Nepal's 2011 census was the first national census in the world to allow people to register as a gender other than male or female. The 2007 supreme court decision ordered the government to issue citizenship ID cards that allowed "third-gender" or "other" to be listed. The court also ordered that the only requirements to identify as third-gender would be the person's own self-identification.
“Legal provisions should be made to provide for gender identity to the people of transgender or third gender, under which female third gender, male third gender and intersexual are grouped, as per the concerned person’s self-feeling”
More recent material indicates that this third option is not available to intersex persons.
Birth certificates are available at birth showing "indeterminate" sex if it is not possible to assign a sex. The New Zealand Department of Internal Affairs states, "A person’s sex can be recorded as indeterminate at the time of birth if it cannot be ascertained that the person is either male or female, and there are a number of people so recorded."
On 17 July 2015, Statistics New Zealand introduced a new gender identity classification standard for statistical purposes. The classification has three categories: male, female, and gender diverse. Gender diverse can be further divided into four subcategories: gender diverse not further defined, transgender male to female, transgender female to male, and gender diverse not elsewhere classified.
In March 2017, a Aotearoa/New Zealand and Australian community statement called for an end to legal classification of sex, stating that legal third classifications, like binary classifications, were based on structural violence and failed to respect diversity and a "right to self-determination".
In Pakistan, the polite term is khwaja sara or "khwaja sira" (Urdu: خواجه سرا), as hijra and khusra are considered derogatory by the khawaja sara community and human rights activists in Pakistan. As most of Pakistan's official government and business documents are in English, the term "third gender" has been chosen to represent individuals (either male or female, neither, and/or both) that identify themselves as, transsexual, transgender person, cross-dresser (zenana in Urdu), transvestite, and eunuchs (narnbans in Urdu).
In June 2009, the Supreme Court of Pakistan ordered a census of khawaja sara, who number between 80,000 and 300,000 in Pakistan. In December 2009, Iftikhar Muhammad Chaudhry, the Chief Justice of Pakistan, ordered that the National Database and Registration Authority issue national identity cards to members of the community showing their distinct gender. "It's the first time in the 62-year history of Pakistan that such steps are being taken for our welfare", Almas Bobby, a khawaja sara association's president, said to Reuters, "It's a major step towards giving us respect and identity in society. We are slowly getting respect in society. Now people recognize that we are also human beings."
Also commonly referred to as a third sex are the kathoeys (or "ladyboys") of Thailand. These are people whose assigned sex was male who identify and live as female. A significant number of Thais perceive kathoeys as belonging to a third gender, including many kathoeys themselves; others see them as second category women. Although they are born genetically as male, kathoeys claim to possess a female heart which is the gender they truly are. Males undergoing sex-change operations are not uncommon occurrences but they are still regarded as men on their identification documents. Despite this, the Thai society remains one of the world's most tolerant attitude towards kathoeys or the third gender. Researcher Sam Winter writes:
We asked our 190 [kathoeys] to say whether they thought of themselves as men, women, sao praphet song ["a second kind of woman"] or kathoey. None thought of themselves as male, and only 11 percent saw themselves as kathoey (i.e. ‘non-male’). By contrast 45 percent thought of themselves as women, with another 36 percent as sao praphet song... Unfortunately we did not include the category phet tee sam (third sex/gender); conceivably if we had done so there may have been many respondents who would have chosen that term... Around 50 percent [of non-transgender Thais] see them as males with the mistaken minds, but the other half see them as either women born into the wrong body (around 15 percent) or as a third sex/gender (35 percent)."
In 2004, the Chiang Mai Technology School allocated a separate restroom for kathoeys, with an intertwined male and female symbol on the door. The 15 kathoey students are required to wear male clothing at school but are allowed to sport feminine hairdos. The restroom features four stalls, but no urinals.
Although Kathoeys are still not fully respected, they are gradually gaining acceptance and have made themselves a very distinct part of the Thai society. This is especially true in the entertainment, business, and fashion industries in Thailand, where the Kathoeys play significant roles in leadership and management positions. In addition, Kathoeys or second-category-women are very sought after when businesses are hiring salespeople. In many job posts, it is common to see companies state that second-category-women are preferred as their sales force because they are generally seen as more charismatic and expressive individuals.
The title "Mx.", is widely accepted in the United Kingdom by government organisations and businesses as an alternative for non-binary people while HESA allows the use of non-binary gender markers for students in higher education. In 2015 early day motion EDM660 was registered with Parliament. EDM660 calls for citizens to be permitted access to the X marker on passports. When the text of EDM660 came to light in 2016 a formal petition was launched through the Parliamentary Petitions Service calling for EDM660 to be passed into law.
In September 2015 the Ministry of Justice responded to a petition calling for self-determination of legal gender, saying that they were not aware of "any specific detriment" experienced by nonbinary people unable to have their genders legally recognised. In January 2016 the Trans Inquiry Report by the Women and Equalities Committee called for nonbinary people to be protected from discrimination under the Equality Act, for the X gender marker to be added to passports, and for a wholesale review into the needs of nonbinary people by the government within six months.
On October 26, 2015, LGBT civil rights organization Lambda Legal filed a federal discrimination lawsuit against the United States Department of State for denying navy veteran Dana Zzyym, Associate Director of OII-USA, a passport because they are, and identify as, neither male nor female. On November 22, 2016, the District Court for the District of Colorado ruled in favor of Zzyym, stating that the State Department violated federal law. The ruling stated that the court found "no evidence that the Department followed a rational decision-making process in deciding to implement its binary-only gender passport policy," and ordered the U.S. Passport Agency to reconsider its earlier decision.
On June 10, 2016, an Oregon circuit court ruled that a resident, Jamie Shupe, could legally change their gender to non-binary. Jamie Shupe was represented by civil rights lawyer Lake Perriguey. The Transgender Law Center believes this to be "the first ruling of its kind in the U.S."
On September 26, 2016, intersex California resident Sara Kelly Keenan became the second person in the United States to legally change her gender to non-binary. Keenan, who uses she/her pronouns and identifies as intersex "both as my medical reality and as my gender identification", cited Shupe's case as inspiration for her petition.
In December 2016, Keenan became the first American recipient of a birth certificate with "intersex" listed under the category of "sex". In April 2017, the second intersex birth certificate (in which the recipient's "sex" is listed as intersex) in the United States was issued to non-binary intersex writer and activist Hida Viloria.
On June 15, 2017, Oregon became the first state in the U.S. to announce it will allow a non-binary "X" gender marker on state IDs and driver's licenses, beginning July 1. No doctor's note will be required for the change. The following week, Washington D.C. announced that a non-binary "X" gender marker for district-issued ID cards and driver's licenses would become available later in June, with no medical certification required. The D.C. policy change went into effect on June 27, making the district the first place in the U.S. to offer gender-neutral driver's licenses and ID cards. Also in June, legislation was introduced in New York to offer an "X" gender marker for residents' ID cards.
In September 2017, California passed legislation implementing a third, non-binary gender marker on California birth certificates, drivers' licenses, and identity cards. The bill, SB 179, also removes the requirements for a physician's statement and mandatory court hearing for gender change petitions. The new designation will be available on California drivers' licenses starting in 2019.
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