Casey Parsons

Published November/December 2021

The last several years have marked many victories for transgender people in the United States. In June 2020, the Supreme Court unequivocally held in Bostock v. Clayton County that discrimination against transgender individuals violates Title VII of the Civil Rights Act.[1] One year later, in Grimm v. Gloucester County School Board, the Supreme Court left undisturbed a high school student’s right to use the bathroom when it denied the school board’s petition for a writ of certiorari following a ruling in the Fourth Circuit that favored the student.[2]

Even so, many states – including Idaho – have passed legislation threatening the rights of transgender people. These attacks include prohibitions on accessing medical treatment, bans on trans women in sports, laws that seek to prevent trans and gender non-conforming people from amending their identity documents, and even criminal penalties for transgender people using the bathroom. In some cases, legal remedies have protected those rights. However, in many cases, there is no adequate legal remedy to address the underlying structural conditions that facilitate discrimination against transgender individuals based on their gender identity. The State of Idaho lacks explicit legal protections for transgender individuals and the gap left by federal law subjects trans people in our communities to harassment and discrimination in nearly every aspect of daily life.

As a preliminary matter, it is important to clarify some terms used in this article. One’s presumed sex or gender at birth is the gendered legal and/or medical fiction at the time that they are born. I refer to one’s presumed sex or gender as a fiction because, in many cases, that presumption misidentifies the gender of the individual in question. Moreover, presuming that individuals fall into one of two categories – either male or female – fails to account for the wide spectrum of sex and gender and inappropriately simplifies a complex phenomenon.[3]

The terms “trans” or “transgender” refer widely to individuals for whom the gender presumed at their birth is a misidentification. I use these terms interchangeably, although some people prefer the more inclusive term “trans*.” The term “gender binary” refers to the framework that limits sex and gender to either male or female. Some individuals who are trans identify within the gender binary and are trans men or trans women; others reject that framework entirely and use terms such as “non-binary,” “genderqueer,” or “gender non-conforming.” For the sake of consistency, I will broadly refer to such individuals as either “non-binary” or “gender non-conforming,” but it is important to recognize that neither term captures the full scope of transgender individuals who do not identify within the male-female gender binary.

I also want to address why this issue is so urgent: transgender and gender non-conforming people regularly face violence and discrimination due to their gender identity and expression. In a 2015 survey of transgender individuals, 48% of respondents reported discrimination at private businesses, verbal harassment, or physical attack due to their transgender status within the prior year.[4]

That same survey revealed many other disturbing figures. Among the respondents who held or applied for a job in the last year, 67% reported that they were fired, denied a promotion, or not hired for a job for which they applied due to their transgender status (including, more recently, the author of this article).[5] 23% of respondents reported housing discrimination based on their transgender status.[6] 58% of respondents who interacted with law enforcement reported experiencing verbal harassment and/or physical or sexual assault as a result.[7] And the Human Rights Campaign reported at least 37 instances of fatal violence against transgender people in 2020 – a record-breaking figure.[8] These realities on all counts are particularly acute for transgender people of color.[9]

The present article focuses on courts and state legislatures that have recently allowed non-binary and gender non-conforming individuals to designate their gender as “X” on identity documents; however, even as a starting point that framework is inadequate. Many non-binary or gender non-conforming individuals do not construe their sex or gender as a third category to male and female but instead view gender as a site of experimentation and multiplicity.

I argue that such policies ultimately put trans and gender non-conforming people at significant risk of violence and discrimination. Legislatures should instead consider removing gender and sex markers from identification documents entirely – a policy supported by the American Medical Association.[10]

As a quick aside, I feel that it is necessary to address a few common arguments made by individuals opposed to the legal recognition and social acceptance of transgender people. Some argue that transgender people, and trans women in particular, seek access to spaces that align with their gender for predatory reasons. This rhetoric mirrors the anti-gay panic prevalent in the 1990s and early 2000s and has no grounding in empirical data.[11] Moreover, the fact that some individual might take advantage of the gendered framework prevalent in the United States is not a reason to think that states should deny rights to transgender people systematically.

Others contend that biological sex is an objective and sound metric for evaluating one’s identity, and that transgender people are a small and inconsequential anomaly. As noted previously, biological sex is simply too complicated to reduce to a determination that individuals fall into the category of either male or female.[12] Parents and medical professionals often make an arbitrary determination at birth that imposes a particular gender that misidentifies the individual in question. While it is difficult to approximate the population of transgender and gender non-conforming people in the United States, recent reports estimate that 1 in 250 adults is transgender.[13]

Still others argue that the basis for the existence of transgender people is rooted variously in post-modern jargon, identity politics, and queer theory. Proponents of this argument are rarely able to define these terms coherently. Many theorists who seriously contemplate gender reject identity as a foundational basis for politics and instead seek to understand the reality faced by transgender people based on material and class conditions, particularly Dr. Judith Butler.[14] This relatively obscure literature has little bearing on the identity of transgender people, most of whom come out due to the fundamental incongruence between their identity and the experience of socialization based on their misidentified sex or gender at birth.  

The first person to gain legal recognition in the United States as a non-binary person was James Shupe. In 2016, Shupe filed a lawsuit in Oregon state court seeking to amend his legal gender from female to non-binary. The state court granted his request.[15] Shupe was a transgender woman at the time but has since decided to detransition and live out his life as a man. Even so, his legal success in Oregon state court was the basis for a petition filed by Dana Zzyym in the Federal District Court of Colorado.

Zzyym sought to apply for a passport but was unable to do so because the only options for the gender designation on the document were male or female, which did not accurately describe their sex or gender. The State Department denied Zzyym a passport on that basis. Zzyym’s legal challenge alleged that the Department’s policy regarding gender markers on passports exceeded its statutory authority and was arbitrary and capricious. The District Court agreed with Zzyym and struck down the policy.[16] On appeal, the Tenth Circuit held that the State Department’s decision to deny Zzyym’s passport did fall within its statutory authority, but that its decision to deny Zzyym’s passport in this case was indeed arbitrary and capricious and remanded the case.[17]

At the time of this article, only 10 states permit one to designate their gender as “X” on public identity documents.[18] 48 states permit one to change their gender between male and female, although the burden placed upon the individual varies widely.[19] 18 states either have no written policy regarding amending gender designations, or they impose an onerous process on those seeking to amend their legal documentation requiring proof of surgery, a court order, and/or an amended birth certificate in order to change one’s designation on their driver’s license.[20] Such requirements rely on an institutional knowledge that is disproportionately inaccessible to transgender communities. Few states allow transgender and gender non-conforming people total autonomy with respect to these documents, which creates significant barriers to transgender people who desire legal recognition for personal or safety reasons.

In 2018, Lambda Legal filed suit against Idaho officials because the Idaho Department of Health and Welfare did not permit transgender individuals to amend their birth certificate to reflect their gender identity. The Idaho Department of Health and Welfare conceded that its policy was unconstitutional and attempted to compromise by offering to implement a policy that would allow transgender individuals to amend the sex designation on their birth certificates, but in doing so the amended birth certificate would contain the revision history as to the listed sex or name. The Federal District Court of Idaho permanently enjoined both policies, reasoning that the Idaho Department of Health and Welfare already permitted applicants to amend other aspects of their birth certificate without the new document disclosing the revisions; for example, amendments to paternity or adoptive status are kept confidential.[21]

The court recognized transgender people as a quasi-suspect class such that courts must apply intermediate scrutiny under the Equal Protection Clause to rules discriminating against them. Because the Idaho Department of Health and Welfare already provided a process to amend one’s birth certificate without disclosing the revision history, the court determined that the proposed policy failed intermediate scrutiny review. In response, the legislature enacted a bill during the 2020 legislative session that would prevent one from altering the gender on their identity documents at all. The Federal District Court of Idaho again enjoined this law based on the prior order.[22]  

Currently in Idaho, amending the gender designation on one’s birth certificate requires a trans person to submit an application to the Bureau of Vital Records and Health Statistics and pay a $20 application fee – in addition to a $16 certificate fee for the amended birth certificate. Changing the gender designation on one’s driver’s license requires that the birth certificate be amended and an affidavit from a physician certifying that the applicant has undergone a “change of sex.” The Idaho Transportation Department does not presently define what it means to have undergone that process. There is currently no process in Idaho to amend one’s identity documents to reflect anything other than male or female.  

In some cases, the efforts of states and courts to create a process for legally recognizing trans and gender non-conforming people may be well intentioned. Even so, as noted earlier in this article, documents that publicly identify someone as transgender can subject one to fatal violence or facilitate discrimination in nearly every facet of social life. The reliance on policy proposals to allow transgender people to amend their legal documentation also reinforces antiquated gender norms that we should reject.

Transgender women who successfully amend their identity documents to reflect their gender are expected to perform their femininity to be socially accepted. Transgender men must similarly perform masculinity, and non-binary and gender non-conforming people must perform androgyny. To be frank, it is difficult to understand why one’s gender is the business of complete strangers. 

In short, a simple and viable alternative exists to these multifaceted requirements to amend the gender designation on one’s public identity documents: legislatures should act to remove such gender designations entirely. They serve little purpose and including them only puts transgender and gender non-conforming people at an increased risk for discrimination and violence from any party that has reason to examine those documents. Doing so would ensure uniformity across states as opposed to imposing different and complicated requirements on transgender people. Moreover, removing gender designations would be in line with the public policy underlying the decision to remove race designations from public birth certificates.[23] 

Given the hostile rhetoric and violence levied against transgender people in the state of Idaho, it is no wonder that many of us do not feel safe in this community. There are many steps that readers of The Advocate might take to support transgender people. Readers can demand policies in their workplace prohibiting discrimination against employees and applicants on the basis of transgender status. They can advocate for anti-discrimination laws that apply to housing and businesses at the level of state, county, and city governments. Legal workers can provide low cost or pro bono legal representation when such acts of discrimination do occur. And, perhaps most importantly, readers can organize against and resist the inevitable next piece of legislation proposed to the Idaho House and/or Senate that seeks to further marginalize transgender people.

Casey Parsons is a staff attorney with Idaho Legal Aid Services, Inc. in Boise, Idaho. They were born and raised in Idaho Falls and graduated from the University of Idaho College of Law in May 2020. They are passionate about providing accessible legal services and hope to remain in Idaho to fulfill their commitment to building a safer and more inclusive community. They are particularly grateful to Michelle Collazo Vos, Ritchie Eppink, David Losinski, and Mikay Parsons for their invaluable contributions to this article.

Endnotes

[1] Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731, 1737, 207 L. Ed. 2d 218 (2020).

[2] Gloucester Cnty. Sch. Bd. v. Grimm, No. 20-1163, 2021 WL 2637992, at *1 (U.S. June 28, 2021).

[3] C. Ainsworth, Sex Redefined, 518 Nature 288, 288-291 (2015).

[4] S. E. James et al., Nat’l Ctr. for Transgender Equal., The Report of the 2015 U.S. Transgender Survey 198 ( 2016).

[5] Id. at 148.

[6] Id. at 176.

[7] Id. at 185.

[8] Hum. Rts. Campaign Found., An Epidemic of Violence: Fatal Violence Against Transgender and Gender Non-Confirming People in the United States in 2020 (2021).

[9] S.E. James, et al., Nat’l Ctr. for Transgender Equal., Black Trans Advoc. & Nat’l Black Just. Coal., 2015 U.S. Transgender Survey: Report on the Experiences of Black Respondents (2017).

[10] Russ Kridel, American Medical Association, Removing the Sex Designation from the Public Portion of the Birth Certificate 12-16 (2021).

[11] Amira Hasenbush et al, Gender Identity Nondiscrimination Laws in Public Accommodations: A Review of Evidence Regarding Safety and Privacy in Public Restrooms, Locker Rooms, and Changing Rooms, 16 Sexuality Rsch. and Soc. Pol’y 70, 70–83 (2019).

[12] C. Ainsworth, Sex Redefined, 518 Nature 288, 288-291 (2015).

[13] Esther L. Meerwijk & Jae M. Sevelius, Transgender Population Size in the United States: A Meta-Regression of Population-Based Probability Samples, 107 Am. J. of Pub. Health 1, 1-8 (2017).

[14] Jules Gleason, Judith Butler: ‘We Need to Rethink the Category of Woman’, The Guardian (Sept. 7, 2021, 06:14 PM), https://www.theguardian.com/lifeandstyle/2021/sep/07/judith-butler-interview-gender.

[15] In the Matter of Jamie Shupe, No. 16CV13991 (Or. Cir. Ct. June 10, 2016).

[16] Zzyym v. Pompeo, 341 F. Supp. 3d 1248, 1261 (D. Colo. 2018), vacated and remanded, 958 F.3d 1014 (10th Cir. 2020).

[17] Id. at 1034.

[18] Russ Kridel, American Medical Association, Removing the Sex Designation from the Public Portion of the Birth Certificate 14 (2021).

[19] Id. at 15.

[20] Identity Document Laws and Policies, Movement Advancement Project, https://www.lgbtmap.org/equality-maps/identity_document_laws (last visited Sept. 30, 2021).

[21] F.V. v. Barron, 286 F. Supp. 3d 1131, 1145 (D. Idaho 2018), clarified sub nom. F.V. v. Jeppesen, 466 F. Supp. 3d 1110 (D. Idaho 2020), and clarified sub nom. F.V. v. Jeppesen, 477 F. Supp. 3d 1144 (D. Idaho 2020).

[22] F.V. v. Jeppesen, 477 F. Supp. 3d 1144, 1151 (D. Idaho 2020).

[23] Russ Kridel, American Medical Association, Removing the Sex Designation from the Public Portion of the Birth Certificate 14 (2021).