'Identity Crisis: The Limitations of Expanding Government Recognition of Gender Identity and the Possibility of Genderless Identity Documents' by Anna James (AJ) Neuman Wipfler in (2016) 39
Harvard Journal of Law and Gender 491
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Trans rights advocates and allies are celebrating as governments around the world relax their standards for obtaining a particular sex designation and expand the available options for gender markers appearing on identity documents (IDs). While this increasing flexibility and diversity will improve the daily lives of countless trans and intersex people, it also raises the question of why government-issued identity documents designate gender at all. This question is particularly pressing for gender nonconforming people and nonbinary people for whom the compulsory inclusion of any gender marker may be especially harmful.
As anatomy and identity become less presumptively linked and governments begin to acknowledge the complexity of gender, various countries have adopted a range of new approaches to sex designation. Many of the burgeoning solutions provide immediate, much-needed relief for binary transgender people who identify as male or female. Advocates have rightly prioritized gaining access to gender-affirming ID over abolishing gender from government ID in a world where gender recognition is still critical for survival. However, these approaches also illustrate how the state’s increasing respect for an individual’s gender identity and openness in recognizing more than two sexes simultaneously results in heightened anxiety over accuracy and security. The increased focus on accurately designating gender identity on government IDs is harmful to gender variant people overall and re-entrenches the primacy of fixed and binary gender. In supporting the state’s quest to “get it right,” advocates reinforce its hold over an aspect of identity that should belong only to the individual.
This Article describes the sex designation policies of a number of international jurisdictions, arguing that each of them falls short by making such designations compulsory, and positing that even making sex designations optional carries a price. Specifically, it highlights New York City’s decision, launched at the beginning of 2015, to make sex an optional field on its new municipal IDs. The Article then identifies U.S. birth certificates as a strategic place to start the process of removing sex from government ID, based on their form, history, and use. Ultimately, the Article concludes that, so long as such documents include a sex designation field, new and seemingly progressive government policies of gender inclusivity harmfully reify sex classification. Therefore, it is time to envision genderless ID.
