New York City has issued what legal advocates believe to be the first birth certificate marked “intersex” to Sara Kelly Keenan, a resident of Santa Cruz, California.
In September, Keenan, 55, became the second person nationwide to receive a court order declaring her legal gender to be non-binary, a gender that is neither male nor female. Her new birth certificate marks the latest step for intersex and non-binary people who have recently gained legal recognition in several states, and could have nationwide implications for those communities, several attorneys say.
When Keenan was a teenager, her doctors discovered she had Swyer syndrome, which is often marked by XY sex chromosomes and female external genitalia, in addition to both ovarian and gonadal tissue.
She underwent surgery at the time to remove the gonadal tissue, a procedure she said she did not fully understand until decades afterward. The experience left her with the desire to increase public education on what it means to be intersex, she told the PBS NewsHour.
Non-binary and intersex activists push for recognition
Jamie Shupe of Portland, Oregon, became the first legally non-binary person in the U.S. through a court order in June. That decision galvanized Keenan, along with others whose gender does not fit into “male” or “female,” to file similar petitions for a legal gender change. A judge granted Keenan’s legal gender change to non-binary in September, making her the second person in the country to receive such a designation.
Since then, at least one other person, Rain Emery Chamberlain, has received a legal gender change to non-binary in California. And a group of three people filed similar petitions in San Francisco in December, with others planning to do so this year in at least five other California counties, said Toby Adams, an attorney and co-founder of the Intersex and Genderqueer Recognition Project. Adams represented Keenan along with the group in San Francisco.
Their cases are rippling across agencies in the U.S. that issue identification documents, including the Department of Motor Vehicles in Oregon and California.
Several months after Shupe’s court order, the Oregon Department of Motor Vehicles said it would be able to print a driver’s license with a third gender marker.
In California, Adams said she and Keenan met with representatives from the DMV last month who laid out ways to move forward on issuing Keenan an accurate license. Those changes may involve passing state legislation to change California regulations and change the DMV’s computer programming to accommodate a third option. The DMV sent a statement about this meeting to the NewsHour:
The department reviewed items that will require modifications, such as legislation, regulations, forms, programming, vendor contracts and working with stakeholders currently utilizing DMV data. The California DMV solidified its commitment to work towards adding an alternate gender designation choice for our customers.
Meanwhile, Keenan reached out to the New York City Health Department, who issues birth certificates, to request a change to the sex listed on her birth certificate. After deliberating for several months, the department in mid-December issued her a new birth certificate with “intersex” listed in the field for sex, which legal advocates believe to be the first time a birth certificate has received this marker. Attorney Adams said she was aware of several people, including Shupe, whose birth certificate lists them as “unknown,” along with one person who successfully petitioned for a birth certificate change to “hermaphrodite.”
“It’s really empowering and exciting,” Keenan said. “The young child in me who had all of these decisions made for them feels really lifted up by this.”
Assistant Commissioner Gretchen Van Wye of the Bureau of Vital Statistics said that New York City’s health code allows the department to change the sex listed on birth certificates with medical documentation from a U.S.-licensed doctor. In this case, “It wouldn’t be correct to say just male or just female on the certificate,” she told the NewsHour.
Keenan may be the first to make this change in New York City, but the department plans to propose a way to make the designation available to others. This March, the bureau plans to present a proposal to the Board of Health detailing how to make the intersex designation available to newborns, Van Wye said.
“We would like to make sure we’re capturing this data appropriately from the time of birth,” she said.
‘This is not just an intersex issue’
Keenan’s case reaches beyond the intersex community, Adams said. In particular, New York City’s decision “shows a change in the nation’s understanding of gender as not being constrained by the myth of the binary,” she told the NewsHour by email.
On a national level, the State Department is grappling with a similar issue. Dana Zzyym, who is intersex and uses the pronoun “they,” sued the federal government in October 2015 after their application for a passport was denied, seeking a third gender option for U.S.-issued passports. A federal judge ruled in Zzyym’s favor in November, leaving the State Department with the choice to appeal the decision or reconsider its policy.
“We are monitoring the situation closely and call on the State Department to act promptly to eliminate its binary-only gender marker policy for U.S. passports,” Lambda Legal attorney Paul Castillo, who is representing Zzyym, said in an email. He added that several countries, including Australia and New Zealand, have approved “X” as a third gender marker for passports.
During a hearing in that case last July, attorney Ryan Parker, who is representing the federal government, underscored the importance of identifying documents like driver’s licenses and birth certificates in the process of granting passports.
“If states were to change their policy and were to issue driver’s licenses that identified the driver’s sex as ‘X,’ maybe that would be something that the State Department would need to take into account as it’s reexamining its policy,” he said, according to a court transcript.
If the California DMV were to grant Keenan an updated license, she would have both a license and birth certificate listing a third option for sex, both materials required by the State Department to obtain a passport.
Keenan said she has received a flood of messages from others who want to change their legal gender as well — but she fears there could be fallout for people living in parts of the country with fewer legal protections for intersex or non-binary people. “I think it’s important for people to pursue this in places where it’s safe to do so,” she said.
New York City’s decision provides an important next step, she said.
“New York City has opened the door to acknowledging that the binary classification system is erroneous,” she said. “I think through further education, the non-binary community can open that door further and create a place for themselves at the table.”
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