Should I change my gender marker to X?

The general information below does not constitute legal advice. This document was updated on November 8, 2024. We will continue to post updates as we receive them.

New York and New Jersey are among the growing number of jurisdictions that recognize a third, non-binary "X" option outside of “F” and “M” for the gender marker on driver’s licenses, birth certificates, and other state level IDs. The same is currently available on United States passports. This is exciting news for non-binary transgender and genderqueer residents, and the outcome of courageous and persistent advocacy by transgender activists.

Identity documents that accurately reflect your gender identity serve a number of purposes. In any institutional or state setting, being able to present an identity document that is an accurate representation of who you are is valuable, both because it may render interactions smoother and because it’s a part of everyday participation in public life. When members of our community are prevented from having accurate identity documents, it’s part of an oppressive restriction of their ability to participate in public life. There are reasons that we celebrate the availability of X gender markers on state and federal IDs, and there are risks involved in choosing to take advantage of that option. 

The Chosen Family Law Center’s Trans Umbrella Project is here to help you change the gender marker on your identity documents, and to help you make decisions about whether, when, and how to do it.

What are the benefits of changing your gender marker to X?

In interviews about their X gender marker, a group of non-binary people described their experiences of the change:

• I was finally able to openly proclaim how I see myself and how I want the world to see me, and this marked the beginning of those perspectives being synonymous. I felt validated in such a specific and monumental way, and [it] made me feel free! . . . It simply made me feel seen, and that's all that really mattered.

• I’m really happy that I changed my gender marker, because it was mostly about me being authentic and honest with myself and the world.

• It has meant the world to me. I feel like the state sees my human complexity rather than just a barcode.

• It also felt validating to know that a government agency was aware of non-binary gender identities.

X gender markers may also provide space for advocacy around intersex identity and experience. Currently, intersex infants are forced into inapplicable gender categories, including with invasive and non-consensual surgery. Standardized channels to classify infants as neither male nor female may be an avenue for reducing that violence.

It is also valuable to consider weighing individual safety in the context of community interests. Each generation of activists clears the way for the next generation; every experience of struggle that we encounter in trying to carve out space in the world for our own transness is a gift of that space to those that will come after us. Han Koehle, a trans health researcher and activist, describes icebreaker ships: a kind of armored ship that carries no passengers or cargo, whose purpose is to break up large ice sheets so that more fragile ships can safely navigate Arctic waters. Icebreaker ships go from one difficult and dangerous situation to another; their only purpose is to make the journey easier and safer for the ships that come behind them. 

While the personal risks (below) associated with changing your gender marker to X need to be taken seriously, it’s also worth thinking about the bigger picture and future generations. Our queer and trans ancestors put themselves on the line to build a better world for us; maybe this is part of how you are doing the same for those that will come after us.

What are the risks of changing your gender marker to X?

There are several areas of trans advocacy where the experiences and needs of binary-identified and non-binary-identified trans people differ. Access to accurate identity documents, for binary-identified transgender men and women, is both access to state validation of their gender and a safety measure. Congruence between the gender markers listed on one’s various documents, one’s legal name, and one’s appearance smooths interactions with gatekeepers, medical providers, the state, and other cisnormative institutions.

For non-binary trans people, the relationship between affirmation and safety in cisnormative institutions is different. Rather than the smoothing of institutional contact that comes with congruent gender markers, an affirming identity document showing a non-binary marker such as X has the potential to disrupt those interactions. While presenting an ID with a gender marker congruent with a binary gender identity and presentation (F or M) functions to allow the holder to decide themselves whether and when to share their trans status, presenting an ID with an X gender marker may do the opposite, outing the holder automatically in every situation, without an alternative or choice in the matter.

Early in the adoption of X gender markers, Dana Zzyym was one of the people at the forefront of this question. Their Colorado state ID is accurate to their non-binary gender, and the State Department refused to issue them a passport at all as a result.  In the years since Zzyym’s case, the state department has begun to issue passports with X gender markers, but the Social Security Administration and USCIS are not issuing or recognizing any documents with X gender markers. 

Mismatched gender markers on different forms of ID can cause heightened scrutiny by police and at borders, etc., as well as concerns about fraud. Individuals with mismatched gender markers on different identity documents may be unable to fly or cross borders, and are subject to anxiety about being accused of fraud. 

According to the 2015 U.S. Trans Survey, 25% of respondents had been verbally harassed showing an ID that was found to be “incongruent” with their perceived gender, while 16% had been denied services or benefits. It is likely that this risk can be extrapolated to the experience of a person with an X gender marker as well, since it comes as a result of being perceived to be trans. 

Other related questions, like “How can I engage with gender-segregated institutions?” (e.g. prisons and jails, some hospitals), also remain to be determined. In the long term, policies may be put forward or at least conventions will coalesce, but at this point, X gender markers are experimental, which is to say: By changing your gender marker to X, you are making your body and your experience the site of the experiment.  

If you are otherwise at risk for state violence, such as Walking While Trans arrests, being assaulted or mishoused while in custody, denied services, or held up at borders, it’s important to consider the impact the markers on your identity documents might have on increasing those risks. Identity documents that are consistent with each other and with your appearance may reduce risk, while identity documents that are inconsistent with each other are more likely to give officials and gatekeepers an excuse to detain or harass. Facilities like jails, prisons, and detention centers are often segregated by gender, and, historically, arrestees and detainees who cannot easily be sorted by gender are often put in solitary confinement or otherwise harsh conditions. In Adkins v. City of New York, a court ruled that when a transgender arrestee spent seven hours handcuffed to a handrail in the middle of a precinct because his gender markers on his documents didn’t match his gender presentation, the conditions of his detention were reasonable, citing safety concerns. Absent a binary gender marker on an ID, such solitary or alternative confinement becomes more likely. These are examples of risks that increase when one’s gender is illegible to those in power.

Under Trump 2.0

There are a lot of open questions about what is in store for trans, nonbinary, and gender non-conforming Americans over the next four years. During the previous Trump administration, there were a lot of things they threatened to do or tried to do that never came to pass. We don’t know how many of the things in Project 2025 or the other propaganda to which we’ve been subjected are actually likely to be attempted or, if attempted, accomplished, and we don’t know what the states are going to try to do in response, and we don’t know if any of those responses will do anything. A lot of the next four years are going to involve thinking on our feet as the government throws unpredictable hazards in our path – but that’s also been the last four years, and the four years before that. So we’ll do our best to give what information we have today, and make some reasonable predictions, and when things change – which they always do – we’ll be here with you.

Some people are worried that changing the gender marker on your identity documents to X – or at all – could result in ending up on a registry or list of trans people for the federal government to target. It’s not possible to say with certainty what will or won’t happen, but our analysis is that tracking down individual trans people would be an extremely inefficient use of federal resources. More proximate strategies are probably significant restrictions of our ability to access gender-affirming healthcare, worsening conditions impacting incarcerated or detained trans people, and attacks on our ability to gather, care for each other, and build intergenerational community. 

At the end of the day, the risk of an X gender marker under a Trump administration are, at time of writing, the risks of being visibly trans, rather than choosing to go stealth. Some of our community members are choosing to take what steps they can to go stealth to protect themselves in this frightening environment, while others are remaining open, whether by choice or because stealth is not possible for them. Your choices about this complicated and often painful question are your own; the Chosen Family Law Center is here to help you understand and effectuate whatever choices you make. 

Informed Consent

This is not an argument against the existence of non-binary gender markers on identity documents. Rather, anyone considering changing their gender marker to X should go into the process with the understanding that many unanswered questions remain about its implementation, and that it’s a decision to be a guinea pig. Getting an X gender marker right now is committing to performing activism with your own ID every time you use it, and like a lot of activism, it comes with risk.

According to the National Coalition for Trans Equality, “legally speaking, it is not a problem to have records and IDs with different gender markers.” However, as anyone who engages in on-the-ground advocacy knows well, “legally speaking, not a problem” doesn’t mean much for the lived experiences of marginalized people when subjected to the authority of individuals with power and privilege. Currently, transgender and gender non-conforming people are experiencing an increased wave of the discrimination, violence, and legislative erasure that make up the growing pains of our society’s engagement with gender. Making the choice to render your identity document an area of activism is to choose to experience these growing pains directly in an area that you may otherwise be protected in. This is a courageous and impactful choice, and one that must not be made lightly.

At the end of the day, identity documents serve two primary functions. First, they are a part of our personal expression in the world, as with every other feature of our gender. An ID that does not accurately reflect who you are feels like being misgendered, like being called an old name, like having to wear the wrong-gendered clothing. For nonbinary trans people, the possibility of having an affirming identity document – one that does not feel inherently misgendering – would have been unimaginable just a few years ago. When validation of our existence is so scarce, it makes sense to want to take advantage of every opportunity.

The other function of identity documents is that they facilitate interactions with institutions, authority figures, and the state. They are part of passing through borders, entering bars, receiving mail, visiting loved ones in hospitals, checking books out of libraries, getting speeding tickets, and countless other parts of public life. These are often moments when we are subject to authority; we are using the identity document to seek entry or permission to something that could be denied us. In this function, identity documents serve either to smooth the interaction, or as an obstacle to it.

The circumstances surrounding this calculation are always shifting, and the political landscape informs the practical circumstances of our society.  

Strategy, ease, risk management, affirmation, and careful analysis of your own priorities all play into the decision about whether or not to seek an X gender marker on your identity documents. There is no one-size-fits-all answer about whether or not it’s worth it, and no advocate should try to impose their value system on their clients.  At Chosen Family Law Center, our advocates use an informed consent model to best support our clients; we believe that every trans, non-binary, and gender non-conforming person deserves to have access to all relevant information, and are best qualified to make decisions about their own life, safety, and needs.   

If you are in NYC and would like assistance changing your name or gender marker, please contact us.