Sex Reclassification for Trans and Gender Nonconforming People: From the Medicalized Body to the Privatized Self
- Ido KatriIdo KatriDepartment of Law, University of Toronto
Sex reclassification is a core issue of gender nonconforming legal engagements. Access to proper identification documents for trans and nonbinary people relates to lower levels of exposure to anti-trans violence, discrimination, and suicidality. In the first decades of the 21st century, the majority of global jurisdictions have seen some kind of reform with respect to sex reclassification. Nonbinary classifications, such as the X marker, are also becoming available for those who wish not to be classified as either M or F. Across the globe, five major policy streams can be found: total ban on reclassification, that is, having no law or policy in place that allows for reclassification; reproduction-related prerequisite, that is, requiring applicants to undergo sterilization or genital-related surgery; other medical intervention-based schemes, that is, requiring applicants to provide proof that they have modified their body using some kind of gender-related medical technology; corroboration requirements, that is, requiring that a third party, usually a medical professional, corroborates the identity of the applicant; and the emerging “gold standard,” gender self-determination, that is, laws and policies requiring only an expression of a desire or need to be reclassified.
These streams of policy provide varying levels of access to proper identification documents and place different burdens on applicants, some requiring bodily modifications while others rely on autonomous will. Yet all these policies still demand an alignment between the internal truth of the body and external facts, resonating with the logic of birth assignment of sex itself—that is, the idea that the allocation of differentiated legal status of M or F reflects an immutable truth about legal subjects. Current laws and policies fail to address harms caused to gender nonconforming people by state mechanisms themselves. They only provide remedies ex post facto. In the early 21st century, all countries assign a differentiated legal status of either M or F at birth based solely, in almost all cases, on external genitals of newborns. This differentiated legal status is recorded on the birth certificate and becomes a part of one’s legal identity for life. This allocation of status reflects the idea that external genitals of newborns are proof of their owners’ future roles as men or women, that is, an idea that there is a pre-legal alignment between certain bodily configurations, social role, and gender performance. This mundane administrative mechanism not only justifies different treatment for men and women but also marks trans and nonbinary people as others. In order to better address the harm caused by systems of gendered distribution of resources and opportunities, there is a need to go beyond sex reclassification to question birth assignment itself.
Laws and policies addressing sex reclassification (Spade, 2007) have become the target of debate and reform, de jure or de facto, in recent years in the majority of jurisdictions around the globe. Yet sex reclassification is not a new issue; it has existed at least as long as the differentiated legal status of male and female has existed, and it is likely to keep evolving as the technologies of the self and population control (Foucault, 1990, p. 140) evolve.
It may not be possible to accurately locate a starting point for legal and policy discussions of sex reclassification. “Third sex” classification is discussed in the foundational work of Hindu law, the Manu Smitri, dated as early as the 2nd century bc (Michelraj, 2015). Jewish law of the 2nd century ad already deals with classification of non-normative bodies in the context of sex-specific legal duties (Strassfeld, 2013). In Europe, explicit legal and policy debates around sex reclassification arose as early as the beginning of the 19th century (Mak, 2012), coinciding with the beginning of modern administrative registers of populations in Europe and the practice of assigning sex at birth (van den Brink & Tigchelaar, 2014, p. 3), that is, the procedure of declaring a newborn to be either male or female based, usually, on their visible genitalia, recording this data on a birth certificate, and documenting it on the public register. It is possible that, as long as sex has been legally designated, reclassification has been an issue.
Modern demands of gender nonconforming people to access proper identification documents have also been around for some time. In Germany at the turn of the 20th century, the eminent sexologist and social reformer Magnus Hirschfeld convinced local police in Berlin to issue a “transvestite pass,” which allowed gender nonconforming people to express their gender identity in public (Beachy, 2014). Mid-20th-century developments in hormonal therapy and surgical options have prompted further discussion on reclassification. Modern legal and policy debates, such as those in Australia, England, Singapore, Hong Kong, and elsewhere, arose over the question of whether people who have accessed gender affirmative medical technologies such as hormone therapy and genital surgery can be married in their lived gender (Scherpe, 2015, p. 618). In other contexts, these discussions came about as a result of people’s direct demands for legal recognition, such as in the 1966 U.S. case of Matter of Anonymous v. Weiner, 50 Misc. 2d 380, 270 N.Y.S.2d 319 (1966), or even earlier, such as the Israeli affair of Rina Natan in the early 1950s. Ms. Natan was a transsexual woman who, as the result of a persistent public campaign in which she resorted to self-mutilation, became the first person to have their sex reclassified by the Israeli Public Registrar (Shapira, 2013).
Gender self-determination is considered the “gold standard” for sex reclassification in the early 21st century. These are laws and policies in which the major and often only requirement is for the applicant to express their autonomous desire or need to be reclassified. Yet developments in sex reclassification cannot simply be described by a narrative of linear progress. From a global perspective, it is evident that all kinds of legal regimes, from a complete ban on sex reclassification, through sterilization and surgical prerequisites, to self-determination, still exist.
Reforms in sex reclassification policies come about in various ways. They can be the result of deliberate legislation, administrative regulations, judicial process, or direct legal challenges. This article relies on legal decisions, legislation, and administrative policy relating to sex reclassification as its primary sources. Where these legal texts are not publicly available, or are difficult to access because of language barriers, the article relies on secondary sources such as reports, books, journal articles, and case comments addressing sex reclassification.
The article does not focus on an analysis of gender nonconforming people, but rather looks from a gender nonconforming perspective at the legal–administrative state apparatuses of sex classification. The article addresses the challenges sex designations present to those whose identities and practices do not follow dominant gender norms. It further considers the importance of sex reclassification for trans and gender nonconforming people. The core of the article offers a multi-jurisdictional review of sex reclassification. Laws and policies are categorized into five main streams. Each stream is examined and critically analyzed through examples of laws and policies from selected jurisdictions. The article also addresses recognition of nonbinary sex designations and the challenges it brings.
Gender Nonconforming Perspectives
Thinking about sex reclassification schemes from the perspective of trans and gender nonconforming lived experiences reveals that their importance lies not only in the desire to be recognized by society at large, but more acutely in the everyday need to be safe from anti-trans violence and discrimination. There has been research on the harms caused by not having access to proper IDs (Spade, 2007, pp. 751–759). Sex designation on IDs is in use in most interactions with state and non-state institutions, such as in schools and universities, banks and other financial institutions, health insurers and care providers, foster care, prisons, and the many other bureaucratic sites where one needs to identify as either M or F (Spade, 2007, sec. II). Sex classification often determines access to gender segregated spaces, such as public toilets and changing rooms. In those daily interactions, trans and gender nonconforming people can be and frequently are “outed” by their government-issued IDs when their recorded sex does not agree with their expressed gender.
Having access to proper ID has been shown to be among the factors that can significantly reduce the disproportionate suicidality (by 41%) (James et al., 2016) among trans and gender nonconforming populations (Bauer, Scheim, Pyne, Travers, & Hammond, 2015). To be clear, trans and nonbinary people are not inherently more prone to commit suicide because of who they are, but because of the continuous violent exclusion they face from families, peers, and institutions (Bauer et al., 2015, p. 6). Intense exclusions force gender nonconforming people, especially those facing intersectional harm, such as those who face sexism, racism, ableism, or poverty, to the border zones of social exclusion, where they are pushed toward death (Haritaworn, Kuntsman, & Posocco, 2014, pp. 6–8). From a gender nonconforming perspective, sex reclassification can amount to a matter of life and death.
The public regulation of dominant gender norms is a substantial outcome of the public designation of sex. Arguably the purpose of information recorded on an ID is to identify its holder. Yet sex designations seem to be useful primarily in identifying trans and gender nonbinary people. It is unlikely that a “terrorist” impersonating someone else would “fake” their gender (Spade, 2007, p. 808). Unlike name, date and place of birth, names of parents, and so forth, an officer of the law does not need to look at one’s ID to know what their lived gender is; they only need to look at them. Gender normative persons are not likely to be asked if they are male or female as a way to corroborate the data on their ID.
Another policy concern is that sex reclassification schemes would allow for identity fraud. In the mid-20th century, concerns were raised that any form of reclassification would enable gender nonconforming people to deceive potential partners and society at large about their “true” selves (Currah & Moore, 2009). With the 21st-century push toward decelerative reclassification, concerns have evolved and reflect the fear that procedures can be exploited, presumably by those marked M, in order to gain access to certain public goods, presumably distributed to those marked F, such as tax benefits, maternal privileges, and lower insurance costs and retirement age. These claims have not been corroborated with factual data, even in jurisdictions where non-pathologizing and non-intrusive polices and law have existed for a while (Open Society Foundation, 2016). There are easily available alternatives for distribution of public goods that do not rely on a public register of sex assigned at birth, such as by self-identification in relation to the distribution of a specific good.
Legal mechanisms to address fraud already exist and there is no need to create sex-specific ones. Still, it is those who do not fit neatly within the classificatory system of binary sex designation—the same people who have trouble accessing proper identification documents—that are often considered identity scammers, or frauds, in the public imaginary and by governments (Gross, 2009; Sharpe & others, 2015). Trans people are still subjected to all sorts of fraud allegations, including facing charges for unlawful marriage and even rape for non-disclosure of trans status in an intimate relationship.
By assigning sex at birth and recording it on IDs, state institutions expose large populations to discrimination, violence, and harassment. Gender nonconforming people who struggle through assemblages of social exclusions, such as those who are racialized, disabled, or poor, are more directly exposed to these harms (Davis, 2018). The enforcement of sex designations by private and public agents maintains the invisible correlation between certain gender performance and certain birth assignments, the masculinity of those assigned M and the femininity of those assigned F (Currah & Mulqueen, 2011). Much like, and in relation to, IDs, segregated bathrooms and other public spaces are technologies that enforce the designation of sex, the correlation of certain bodies, certain selves, and certain public expressions. In this world of continuous reinforcement, gender nonconformity becomes a legitimate target for violent exclusions sanctioned by the state vis-à-vis the designation of sex.
Scope of Review and Analysis
This article focuses on sex designations, those Ms and Fs that haunt one’s life, yet there is another important aspect of proper IDs: name change. Having a distinctively gendered name can expose one’s gender nonconformity (James et al., 2016). Changing one’s name on official documents can be challenging, and in many U.S. states and European countries it requires a court order. In other jurisdictions, such as Brazil, the only legal avenue to change one’s given name is as a part of sex reclassification. Still, this article will only focus on sex reclassification schemes, because, in their direct connection to the process of assigning sex at birth, reclassification laws and policies represent both the core of legal recognition of the trans and gender nonconforming population and the potential effects of such recognition on an array of legal arrangements.
Another issue that will not be fully addressed in the article is the interests of minors. In almost every jurisdiction minors face a heavier burden in accessing sex reclassification, if they are even allowed to access it at all. As institutions such as schools and clinics are a part of children’s and adolescents’ daily lives, and as many of these sites also include gender segregated spaces and activities, sex reclassification is as important for young people as it is for adults. Rates of suicide among trans and gender nonbinary youth are even more alarming than those among adults, thus legal recognition and protection are vital for their survival. As this article focuses on how reclassification laws and polices are embedded with notions of stability and the coherence of bodies and selves, it recognizes that people, especially young gender nonconforming people, are considered to be inherently unstable and incoherent. Yet it is beyond the scope of this article to address the unique challenges faced by young trans and nonbinary people asking to reclassify their sex.
The article also focuses on the more evidential aspect of sex reclassification. That is, what kind of proof, if any, does the applicant need to provide in order to make their request for reclassification? The question of which authority has the power to approve such requests is also vital in determining accessibility. Administrative-based procedures, where the applicant is only required to submit documents to a public registrar, is considered simpler, quicker, and less intrusive than a process conducted in front of a court of law. In fact, new reclassification schemes, such as the French law of 2016, have often moved from a court-based process to an administrative one. Both kinds of authority exist within all streams of reclassification law and policy. Deferral to a court decision even exists in a limited scope within some gender self-determination laws. Given the local administrative traditions and conditions, an administrative process at times can also be very long and intrusive. For instance, in Brazil, an administrative self-declaration process has been adopted that requires the applicant to provide nearly 20 different documents proving their identity. Instead of separating the question of authority from the evidential process, this article will address authority-related questions within its analysis of policy streams, when it contributes to the analysis.
As sex reclassification is a highly fluctuating legal terrain in which changes occur on an almost daily basis, laws and policies are categorized by using a variety of examples of each. Great attention will not be payed to the United States, although some jurisdictions will be mentioned and looked at, as much of this work has already been done with far greater precision (Currah & Moore, 2009; Spade, 2007). Reforms to sex reclassification schemes are local, yet they accrue all around the global. While a great deal of theory is being produced in the United States, innovative legal engagements are often produced outside of it. Further, although the U.S. federal government does reclassify sex on passport and social security data, sex classification in the United States is mostly determined on the local level by the relevant local authority (Department of Motor Vehicles, state register of vital statistics, city ordinance pertaining to sex segregated services, etc.). Thus, multiple and even contradicting policies can be found within the same jurisdiction (Spade, 2007). It is beyond the scope of this article to address all relevant U.S. policies and, and as with other jurisdictions, only selected examples will be explored.
Looking at sex reclassification from a broad perspective will reveal that the evolving legal and administrative willingness to recognize gender nonconformity through sex reclassification is still rooted in essentialist ideas about bodies and selves. The available legal schemes for reclassification of sex designation, ranging from policies requiring sterilization to gender self-determination (GSD), are all geared toward finding the “truth” about one’s sex/gender, ensuring that while some individuals’ needs will be met, the overall system of assigning legal sex remains stable.
Reclassification of Sex Designations
Considering the global rise in visibility of trans and nonbinary identities and practices since the beginning of the 21st century, many jurisdictions have reformed their laws and policies on reclassification of sex designations. At this point there are five main streams of law and policy: total ban on reclassification; reproduction-related prerequisites; medical intervention-based schemes; corroboration requirements; and gender self-determination. In addition, there is an emerging demand to recognize nonbinary gender markers, and several jurisdictions have included in their policies a third gender option. These different laws and policies can overlap, and sometimes a specific jurisdiction bounces between different options. The streams of laws and policies are separated solely for the sake of analysis.
Total Ban on Reclassification
Total lack of recognition means that a jurisdiction does not have any law or policy in place that allows for sex reclassification or that it explicitly prohibits such changes. At the end of the second decade of the 21st century, total refusal of recognition can still be found in many jurisdictions around the world, from the richest jurisdiction to the poorest, from south to north, west to east, including in Egypt, Bangladesh, Maldives, Myanmar, Brunei, the Philippines, Thailand, Albania, Andorra, Azerbaijan, Cyprus, Macedonia, Kosovo, Liechtenstein, Monaco, San Marino, Dominican Republic, El Salvador, Guatemala, Haiti, Honduras, Jamaica, Nicaragua, Paraguay, Samoa, Lesotho, Tanzania, Uganda, Zimbabwe, and Bhutan (Chiam, Duffy, & Gil, 2017). In the United States there are also jurisdictions that refuse to reclassify sex. In Kansas and Ohio, while general provisions are in place to allow the reclassification of birth certificates, courts have interpreted it to not include the power to reclassify sex and relevant administrative authority, claiming that they have no authority to do so (see: Estate of Gardiner, 29 Kan.App.2d 92, 22 P.3d 1086 (2001); re Ladrach, 32 Ohio Misc. 2d 6, 513 N.E.2d 828 (Ohio Prob. Ct. 1987)). Tennessee is the only state that specifically prohibits reclassification (see: Tenn. Code Ann. § 68-3-203(d) (2006)). In early 2019, Utah lawmakers proposed a law that would prohibit sex reclassification in the state (Utah bill seeks to block gender changes on birth certificates, 2019).
Given that lack of access to proper identification documents exposes large populations to exclusion and violence, it can be argued that complete lack of access to adequate identification documents can amount to direct lethal state violence. A refusal to address the needs of trans and gender nonbinary populations is akin to claiming that they do not exist and perhaps reflects a fundamentalist belief in the “naturality” and stability of birth assignment. It is nonetheless worth noting that even within countries that prohibit sex reclassification, such as Thailand, Egypt, Macedonia, and the Philippines, gender nonconforming people find ways to acquire proper identification, by legal and illegal means (Chiam et al., 2017). Similarly, in the United States, while the states of Indiana, Maine, Oklahoma, South Carolina, South Dakota, West Virginia, Alaska, and Florida do not have explicit provisions in the law that allow for reclassification, relevant administrative authorities do allow correction to applicants under certain conditions such as providing proof of surgery or a doctor’s letter (Transgender Law Center, 2017).
Without framing this claim as a progress narrative, there are reasons to believe that with the growing political intelligibility within gender nonconforming communities around the world, even these countries soon may be unable to ignore the need for a sex reclassification policy. In October 2017, a court in Botswana, a country in which homosexuality is still illegal, found that prohibiting the possibility of reclassifying sex violates the rights to dignity, privacy, freedom of expression, equal protection of the law, freedom from discrimination, and freedom from inhumane and degrading treatment (Chiam et al., 2017), joining the growing inter-jurisdictional recognition of self-perceived gender as a self-evident right, that “gender identity constitutes the core of one’s sense of being and is an integral (part) of a person’s identity” (Esterhuizen, 2017). Procedures to reclassify sex designations are being implemented in more and more jurisdictions. These new policies may not produce significant change in the lives of local communities, however; they may even worsen the situation, for instance by forcing trans people to undergo surgical procedures they would not otherwise choose.
Given that there already exist a variety of policies for reclassification of the sex marker, it can be assumed that new policies would follow one of the existing four models available: reproduction-related prerequisites; non-genital medical intervention; corroboration; and declarative self-determination. Nonbinary markers may or may not be addressed through these policies.
Reproduction-related laws and policies demand that the applicant undergo sterilization and/or genital-related surgery as a precondition for sex reclassification. This stream of law and policy implicitly or explicitly includes a demand for medical diagnosis, as it is still a precondition for accessing these surgeries. Even in jurisdictions that in 2019 allow reclassification without officially requiring surgery, such as Russia, people are often asked to provide proof of surgery to corroborate their application (International Network of Civil Liberties Organizations, 2018). In other jurisdictions, such as Peru, Romania, and Israel, where there exists a possibility to reclassify one’s sex without proof of surgical intervention, the surgical route is significantly easier and faster. In 2019, sterilization and/or genital surgery was still required in Kazakhstan, Uzbekistan, Czech Republic, Cuba, China, Japan, South Korea, Turkey, Ukraine, Slovakia, Italy, Latvia, Venezuela, Malaysia, and other jurisdictions (Chiam et al., 2017). In the United States, genital-related surgery is still a precondition for amending one’s birth certificate in some jurisdictions, including Alabama (Ala. Code § 22-9A-19(d) (2004)), Alaska (Alaska, n.d.), Arizona (Ariz. Rev. Stat. § 36-337 (A)(3) (2006)), Arkansas (Ark. Code Ann. § 20-18-307(d) (2005), Florida (Fla. Admin. Code Ann. r. 64V-1.003(1)(f) (2006)), Georgia (Ga. Code Ann. § 31-10-23(e) (2005)),1 Louisiana (La. Rev. Stat. Ann. § 40:62 (2006)),2 Michigan (Mich. Comp. Laws Ann. § 333.2831(c) (2006)),3 Nebraska (Neb. Rev. Stat. § 71-604.01 (2005)), New Mexico (N.M. Stat. Ann. § 24-14-25(D) (2006)), North Carolina (N.C. Gen. Stat. §§ 130A-118(b)(4), (e) (2005)), Oklahoma (Oklahoma, n.d.), Wisconsin (Wis. Stat. Ann. § 69.15 (2006)), and Wyoming (Wyo. Stat. Ann. § 35-1-424 (2005)).
Sterilization and genital-related surgery have similar effects with respect to reproduction. Genital-related surgery always includes some harm to reproductive capabilities. Female genital reconstruction (performed on trans women) includes removal of the testes and the penis. Male genital reconstruction (performed on trans men) often includes closure of the vaginal tube or other modifications of the genitals that prevent one from being able to bear children. It is common to perform a hysterectomy as part of this process.
This is not to say that these surgeries are only forced upon gender nonconforming people and cannot result from an autonomous choice. Rather, focusing on the reproductive effects of reclassification prerequisites shows how reclassification laws and policies reinforce dominant norms of sexuality.
Besides their eugenic undertones (Whittle, 1998), reproduction-related requirements seem to echo the fantasy of “sex change” as a scientific procedure that can produce “natural” sexed bodies. It is a fantasy that biologically coherent binary bodies naturally exist and can be produced by medical technologies, a formulation that is not only currently technologically impossible but also contradicts the growing scientific consensus that considers sex as a spectrum (Sudai, 2018b).
The logic that sustains the birth assignment of sex is maintained and enforced through reclassification in relation to reproductive capacities, that is, the idea that the external genitals of newborns are proof of a future social position—being a man or a woman, mother or father. In this logic, the birth assignment of the applicant was not incorrect to begin with. Rather, the reclassification is justified because the performance of dominant reproductive roles has shifted from one side of the binary to another, in an irreversible process, by a medical–scientific intervention that, paradoxically, causes infertility.
This stream of policy is becoming less relevant because of the extreme harm it poses to bodily integrity and autonomy. Forced sterilization and genital surgery have been denounced in many jurisdictions as inhumane, including in Austria, Germany, Switzerland, and the Netherlands (Chiam et al., 2017). International law has also started to prohibit such requirements. In April 2017, the European Court of Human Rights found that sterilization requirements with respect to sex reclassification violate the right to a “private life” (A.P., Garçon and Nicot v. France, April 6, 2017). In November 2017, the Inter-American Court of Human Rights advisory opinion OC-24/17 prohibited forced sterilization and any prerequisite of medical bodily modification and pathologization, declaring the right to “self perceived gender identity.” The emerging legal standards prohibiting forced sterilization and genital surgery push jurisdictions toward “softer” laws and policies, yet a demand for alignment between the body and self is evident.
Medical Intervention-Based Schemes
As reproduction-related requirements become obsolete, they are often replaced with policies considered to be less harmful, ones that merely demand one undergo some other kind of medical intervention. These procedures can include non-genital surgery such as mastectomy or augmentation mammoplasty (removal or enlargement of breasts, respectively), facial feminization surgery, and so on. These procedures can also include non-surgical interventions, in particular hormonal therapy. This approach does allow for a broader group to reclassify their sex, as only a minority of trans and gender nonbinary people undergo genital-related surgery (USTS report, n.d.).
In 2019, many countries including Ecuador, Poland, Belarus, Iceland, Finland, Georgia, Kyrgyzstan, and Pakistan (Transgender Europe (TGEU), 2018), as well as many states in the United States, such as Connecticut, Washington DC, Hawaii, Iowa, Maine, Maryland, Massachusetts, Minnesota, Mississippi, North Dakota, Rhode Island, Vermont, Virginia, Delaware, New Hampshire, Illinois, and New York, still demand some kind of medical intervention for “sex change” but do not insist on sterilization or genital-related surgery (Transgender Law Center, 2017). In other jurisdictions, one needs to provide proof of some type medical intervention, such as hormone replacement therapy or other medical treatment, to “encourage the change of identity,” as in Spain.
Much like with respect to sterilization or genital surgery, there is an implicit or explicit demand that the applicant receives a medical diagnosis, as access to these medical technologies mostly depends on acquiring such a diagnosis. By reinforcing medical authority, these laws and polices also represent a breach of the right to autonomy.
Requiring medical intervention uses a more liberal framework to enforce the same dominant gender norms that lie behind the sterilization and/or genital surgery requirement—that is, that F/M are naturally produced mutable categories of bodies and selves that are reflected and not constructed through birth assignment of sex. While sterilization and genital surgery are geared to sustain a certain kind of dominant sexuality through reproduction, medical intervention requirements reflect the regulatory alignment of sex, gender, and gender performance, by insisting that the body be realigned to justify a reclassification.
These laws and policies reflect the difficulty of defining clearly what constitutes a “sex change” and how it can be achieved, as well as the developments in related medical standards such as the Standards of Care (SOC) of the World Professional Association for Transgender Health (WPATH) and the Diagnostic and Statistical Manual of Mental Disorders (DSM) of the American Psychiatric Association (APA). Still, these laws and policies imagine a linear process of transition in which the inherent truth of the self is aligned with the external “facts” of the body. Thus, they continue to support the assumptions behind birth assignment of sex.
As a result of the growing recognition of gender nonconforming individuals’ right to autonomy and with the shift to an individual care model in trans health, corroborative polices have been developed. Corroborative policies require that an external party validate that the applicant does indeed belong to the sex in which they wish to be reclassified. Corroboration can manifest in different forms: expert, juristic, or other third-party corroboration. For instance, the Canadian province of Ontario requires one to corroborate the application with a certificate from a medical professional; Greece only requires the applicant to appear before a court that can issue an order; the law in the Canadian province of Quebec suggests that another third party, such as a family member, friend, or colleague, can corroborate the application.
The corroboration approach is a significant improvement over requiring medical intervention, as it is more respectful of the bodily integrity as well as the privacy of the applicant. It allows an even broader group of people to reclassify their sex. As long as the applicant can find a doctor to sign their application, or a sympathetic judge or someone to vouch that they are who they are, reclassification should be accessible. Yet those policies continue to share an investment in the idea of alignment between external “facts” and internal “truth.” Corroborative laws and policies ensure that sex reclassification reflects an unchangeable inner truth about one’s gender identity, verifiable by “external” evidence in form of a corroborative party.
Following an Ontario Human Rights Tribunal decision in 2012, the Ontario government withdrew its prerequisite that applicants for reclassification must have “sex change surgery.” According to Ontario’s policy, the applicant must provide a statutory declaration that they have “assumed (or has always had) the gender identity that accords with the requested change in sex designation,” and that they are “living full time in the gender identity … and intend[s] to maintain that gender identity.” In addition, the applicant needs to provide a letter from a medical professional who can corroborate the declaration. The medical professional, who will have treated or evaluated the applicant in relation to their “change in sex designation,” confirms that the applicant’s gender identity does accord with the requested change and they are of the opinion that the change is appropriate.
Similar policies can be found in other Canadian jurisdictions such as Alberta, New Brunswick, Nova Scotia, Nunavut, Saskatchewan, and Prince Edward Island, and in U.S. jurisdictions such as Nevada (NAC 440.130). Under these schemes for reclassification, a great deal of authority is still granted to medical institutions, which can be assumed to make their decision according to or in relation to available medical standards. The individual care model is reflected in the doctor’s statement, for instance, in New York doctors are required to attest that “in keeping with contemporary experts standards regarding gender identity, the applicant’s requested correction of sex designation of male or female more accurately reflects the applicant’s sex or gender identity.”
In October 2017, Greece passed the Legal Recognition of Gender Identity law. The law removes the former requirement that the applicant undergo “sex change” surgery and be diagnosed by a mental health professional. Instead, applicants who are over the age of 17 can petition the court, which has the discretion to decide whether the applicant’s gender expression matches the sex in which they wish to be reclassified. If the court is willing to corroborate the application, a court order for reclassification is issued. Similar arrangements exist in France, where the applicant appears before a the Tribunal de grande instance to declare their free and informed consent to reclassification and is encouraged to provide further corroborating evidence including statements from friends, family, or colleagues.
In other jurisdictions such as Russia, Switzerland, Poland, Romania, New Zealand, and Germany, there exists a hybrid model. The applicant is required to appeal to the court, but the court does not rely solely on the self-declaration of the applicant but also requires proof of a medical diagnosis and/or surgical intervention. Thus, those kinds of legal schemes are better understood as part of the previously discussed streams of policy.
In early 2016, the Quebec government went a step further by asking for the corroboration of a third party who has known the applicant for at least one year. Under the Quebec policy, the applicant is requested to declare that: “the sex designation … best corresponds to my gender identity,” and that they “assume that gender identity and intend to continue doing so.” The corroborating party needs to state that the applicant is aware “of the seriousness of the application.” A similar policy can be found in another Canadian jurisdiction, the Northwestern Territory. Compared with professional corroboration or judicial corroboration, third-party corroboration seems to be the least burdensome. The corroborating party does not need to be a member of the medical or judicial establishment, and they only vouch for the applicant’s ability to make informed decisions and not that the reclassification is needed.
Yet, in order to move between M and F, one has to prove the stability of one’s gender, both by publicly declaring alliance to the sex category in which one wishes to be included and by having an external party corroborate that official proclamation. Ontario asks the applicant to state that they “intend to maintain that gender identity”; the Québécois applicant must assert that they “assume that gender identity and intend to continue doing so.”
Even on occasions where public attestation of alignment is not explicitly required, such as under the Greek law, it is still imbedded in the dual process of corroboration. In New York City the corroborating party is required to certify that the “gender identification” of the applicant “is true and correct.” The Greek judge is tasked with determining whether the applicant’s gender expression matches the requested reclassification, ensuring that only gender coherent applicants can reclassify. The corroborator is asked to tell the truth not about the statement made by the applicant, but about the applicant’s gender. Thus, the corroborating process ensures stability of the sex category, supporting the logic of birth assignment. Reclassification is allowed because external proof is provided to show that the assumption of internal “truth” at birth based on visible genitals was wrong. Corroboration grants objectivity to the reclassification that goes beyond the applicant’s subjective understanding of themselves. Thus, it also reaffirms the idea that in the usual course of events, birth assignment reflects objective criteria. The next stream of policies goes a step further, leaving behind the external evidence in a progression toward the ultimate sphere of privacy.
The “gold standard” of reclassification schemes is considered to be those referred to as gender self-determination (GSD) (Scherpe & Dunne, 2015). GSD bring forward new kinds of language and ideas, formulating a new legal and policy discourse. From 2012 onwards, there has been a visible global shift toward GSD. Laws and policies have been enacted in South America (Argentina 2012, Mexico City 2014, Colombia 2015, Michoacán and Nayarit 2017, Brazil 2018, Costa Rica 2018), North America (California 2019, New Jersey 2019), Europe (Denmark 2014, Malta 2015, Ireland 2015, Norway 2016, Portugal 2018), and Asia (Pakistan 2018). GSD policies allow for reclassification of sex based on a person’s self-identification without any further evidence. GSD laws currently offer the greatest sovereignty over sex designations and reflect an informed consent model.
From 2012 onward, there has also been a more general move toward depathologizing the process of reclassifying sex and a greater emphasis on gender nonconforming autonomy with respect to sex designation. Other reclassification schemes, such as ones demanding corroboration, also reflect this trend. As those policies no longer involve medical intervention, they put greater emphasis on bodily autonomy. Thus, they should be understood in light of the move toward GSD, as they enable a greater degree of legal self-determination with respect to identity documents.
At the same time, by pushing away the normalizing justification for regulatory enforcement of sex designations, GSD also reflects a growing emphasis on an individualistic framework for recognition. Within the progress brought by GSD laws, they are still invested in stability. Stability is reached by constructing gender as a stable entity of the self. Positioning gender in the most private of spheres, the self, they do not challenge the practice of birth assignment and its productive power.
Different countries have taken slightly different approaches to defining self-determination, what its normative status is, and how it can be reached. The Maltese law adopts an understanding of gender as an objective truth located within the highly subjective space of “internal and individual” feeling. The Irish law explicitly demands that the applicant commit to living in the preferred gender for the rest of their life, and it continues to rely on the power of medical institutions with respect to applicants under the age of 18. The Danish law, which talks about “belonging to the opposite gender,” presumes a binary system of gender and enables movement based on feeling of belonging, something that is beyond choice, resonating the idea of ancestry. The Danish law further requires a period of “reflection,” seemingly to make sure the applicant does not “change their mind” and is truly rooted in their gender position. The Norwegian law, like its Scandinavian counterpart, also talks about feelings of belonging.
The Mexican jurisdiction’s amendments to the civil code echo the Yogyakarta principle of 2006 by describing gender identity as a self-perceived entity that may or may not correspond to birth assignment. The notion of self-perception also appears in the Brazilian regulation that points to the Inter-American Court of Human Rights advisory opinion OC 24/17. According to the opinion, states have an obligation to recognize self-perceived gender identity, which it also defines according to the Yogyakarta principle as a “deeply felt internal and individual experience of gender.” The Brazilian regulation further states that only one reclassification is allowed through the administrative route and further changes require a court procedure. The Colombian Supreme Court decision defined “sexual identity” as an “internal consideration.” Following the Supreme Court, the Colombian Decree states that another reclassification can only take place after 10 years and at maximum twice in a lifetime.
The California Gender Recognition Act is the first gender self-determination legislation in the United States. The law, which came into force between September 2018 and January 2019, allows the applicant to change their gender marker without requiring any proof besides an affidavit attesting that the “request for a change of gender is to conform their legal gender to their gender identity and not for any fraudulent purpose” (Section 103426 of the California Health and Safety Code). The law allows the applicant to request a gender change court order that will allow them to change their state-issued ID. If the applicant is in California they can apply directly, without a court order, to the state registrar to request a new birth certificate. The applicant’s affidavit “shall be accepted as conclusive proof of gender change” (section 103410(a) of the California Health and Safety Code). In addition, the law allows one to change the gender marker on one’s state-issued driving license by simply self-selecting without requiring further proof. In all these routes the applicant can choose between male, female, and nonbinary designation, all of which should be considered as “equally recognized” (section 2 of the California Gender Recognition Act).
Following California, in July 2018 the New Jersey Senate approved the “Babs Siperstein” law. The law changes the reference to the process of reclassification from talking about sex to talking about gender.4 It is named after the transgender activist Barbra Casbar Siperstein, who died two days after the law came into force on February 3, 2019. The law adopts a similar process to that in California, removing the requirement for an affidavit from a physician attesting to “gender transition,” and instead asks the applicant to state that they: “attest under penalty of perjury that the request for a change in gender to (female, male, or undesignated/non-binary) is to conform my legal gender to my gender identity and is not for any fraudulent purpose” (P.L.1984, c.191 (C.26:8-40.12) §1a (1a)). Yet, in a statement to the Senate by the Health, Human Services and Senior Citizens Committee, it is made clear that the law removes surgical requirements in order to reflect current “gender transition practices” (SSH 1/22/2018). It also gives local courts jurisdiction to issue orders to other jurisdictions in the United States declaring a person’s gender (P.L.1984, c.191 (C.26:8-40.12) §1e).
The California Gender Recognition Act and the New Jersey Babs Siperstein law are joining existing administrative policies in Montana (Admin. R. Mont. 37.8.311 (5) (2017) of December 2017), Washington (WAC 246-490-075 of January 2018), and Oregon (OAR 333-011-0272 of January 2018). These policies, while not explicitly acts of GSD legislation, removed all medical and other requirements for reclassification and are based solely on the applicant’s self-attestation. With these laws and policies in place, about a quarter of the U.S. population now enjoys access to GSD.
The Pakistani GSD law also recognizes nonbinary identities and practices. It defines “gender identity” as the “innermost and individual sense of self as male, female or a blend of both or neither; that can correspond or not to the sex assigned at birth.” It defines the transgender person as “(i) Intersex (Khunsa) with mixture of male and female genital features or congenital ambiguities; or (ii) Eunuch assigned male at birth, but undergoes genital excision or castration; or (iii) a Transgender Man, Transgender Woman, KhawajaSira or any person whose gender identity and/or gender expression differs from the social norms and cultural expectations based on the sex they were assigned at the time of their birth.” “Transgender persons” should be recognized according to their “self perceived gender identity.” Though the law makes specific reference to transgender persons as men and women with respect to inheritance, it is still unclear whether straightforward recognition would be provided in relation to IDs, and local advocates believe implementation may take many years (Hassim, 2018).
The Argentinian law, the first of its kind that set the stage for the global move toward GSD, remains the most far-reaching in its articulation of an autonomous right to self-determination and its commitment to providing depathologized access to affirmative medical care, resources, and opportunities. By law in Argentina, all one needs to do in order to get access to state-funded trans healthcare is to declare that the desired procedure is related to one’s felt or expressed gender. Budget considerations often prevent the provision of specific care, but there is no legal limit to what can be requested. Yet here too, a close reading of the law reveals the centrality of stability in GSD. Article 1 constitutes a right to gender identity. Formulating gender identity as a right constitutes gender as an entitlement, a sort of capital. Article 2 of the Argentinian law understands gender identity as an “internal and individual” feeling, portraying gender as deeply rooted inside the subjective self, and by doing so, granting it objectivity. By placing gender in the private realm of the self, knowable only to the autonomous individual, gender identity is constituted as “self-evident” (Hunt, 2007, p. 27), justifying its legal formulation as a right. Article 8 sets a far more securitizing process to make further changes to one’s sex designation, requiring an application to the court.
GSD laws still maintain the logic of birth assignment of sex, by holding onto the notion of coherence, of alignment between an internal truth and external facts. Gender identity is understood as the internal truth of the self that needs to be aligned with the external truth of the public register. Gender is understood as stemming solely from the individualized self, as if one need only be left alone in a quiet room with no outside interference and look deeply into one’s soul to find this allusive fixed entity, one’s gender identity.
Yet in law, sex is still a differentiated legal status assigned at birth and upheld by state mechanisms. Thus, by formulating gender as a sort of private property of the individual, it is also relieved of the responsibility to create and uphold binary categories of sex. The distinction between of Ms and Fs not only serves as the basis for the uneven distribution of resources and opportunities, as they allegedly reflect a prelegal difference between two groups, they also constitute the borders of each group, casting gender nonconforming people as others. Reclassifying sex is understood as legitimate because it reflects something beyond regulatory state or social control, something that is highly internal and hyper-subjective. The “origin” moment of legal sex, the ritual of birth assignment, is not challenged under this model.
Administrative justifications have moved from searching for an external marker on the body to looking for internal markers assumed to reside in the self. It is a move from medical modification of the body to corroboration of internal truth by another, to assuming a core mutable knowledge of the self, accessible only through an autonomous individual. There is a need to rethink GSD beyond the current limits of rights discourse. Yet these interventions must be nuanced so as not to delegitimize the need for proper identification documents for those most exposed to harm. Challenging norms is a privilege not accessible to all. A nuanced intervention would try to reduce those harms and not limit the possibilities of those most exposed to them.
Nonbinary Sex Designations
A limited number of jurisdictions have started offering nonbinary sex designations. Nonbinary sex designations allow people to be documented in the public register and/or carry identification documents that mark their sex as other than M or F. These designations have primarily been used by intersex persons, gender nonbinary persons, and third gender people, but have recently also started to be used as gender-neutral markers available for the general population. Different reclassification laws and policies can go hand in hand with nonbinary markers. A jurisdiction may allow an applicant to reclassify their sex to X only if they undergo medical intervention or they have been diagnosed by a medical professional. That is, having an administrative option for nonbinary markers does not exclude placing harmful prerequisites on applicants.
Nonbinary sex designations are important and controversial among intersex communities and are often implemented to address their needs. Intersex people are often conflated with trans and gender nonconforming people and do share some struggles with them (Mor, Sudai, & Shai, 2013). The topics of birth assignment and sex designation are perhaps the best examples of that. Nevertheless, their interests may differ drastically, and at times are overshadowed by trans advocacy (Sudai, 2018a). While aware of conflicting interests, this article does not attempt to represent a specific intersex perspective. To fully account for the needs of intersex people in relation to sex reclassification, elaborate research is needed.
In 2007, the Supreme Court of Nepal ruled in favor of “people of third gender,” ordering the government to implement a third gender category in its administration. While the third gender category is available on official documents, Nepal has yet to implement a comprehensive policy on reclassifying sex, and access to proper IDs rests on the relentless advocacy of individual applicants (Bochenek & Knight, 2012, p. 31). Legal recognition of other non-Western, nonbinary sex designations also existed, in some form, in Pakistan even before its 2018 legislation (Masood, 2009).
In 2012, New Zealand introduced a de-medicalized process for allowing an X marker option on its passport. The applicant is asked to complete a statutory declaration indicating how long they have maintained their current sex/gender identity. This policy does not apply to other official documents, and applicants are warned against multiple changes in sex/gender identity that “may affect a person’s ability to confirm their identity in the wider community.” In November 2016, a U.S. district court ruled in favor of an intersex activist, and against the U.S. Department of State, forcing the State Department to issue a passport that does not identify the plaintiff as either male or female (Zzyym v. Kerry, No. 15-CV-02362-RBJ, 2016 WL 7324157 (D. Colo. November 22, 2016)). Whether or not this decision will result in a change to U.S. passport policy on reclassifying sex designation is yet to be seen. All U.S. jurisdictions that allow GSD-based reclassification, California, New Jersey, Oregon, Montana, and Washington, also allow an applicant to reclassify as X.
Since 2003, Australia has allowed “intermediate” persons to reclassify their sex designation on their birth certificate and passport to reflect the category X; however, this option was only available to those who were diagnosed as intersex. Since 2014, the X option has been available to anyone “who identifies as neither male nor female.” Yet, in order to apply for reclassification, applicants are obliged to provide, at a minimum, a certificate of medical diagnosis. Similarly, in 2018 Germany approved a law that allows for “other” sex classification, yet this option is only available for those diagnosed as intersex.
In March 2017, the Ontario government introduced a reform to its driving license. Months earlier, the Ontario government had already eliminated the sex marker from its healthcare identification card. The new reform introduced an X marker available to everyone, not only gender nonconforming persons, by self-declaration. As Adv. Nicole Nusbaum explains, the Ontario X marker is also a gender-neutral option available to all. Paradoxically, in order to change one’s sex marker from F to M, one is still required to provide a corroborative statement from a medical professional. That is, it is easier to have no binary sex than to reclassify as F or M.
The X marker is a solution for many who struggle to fit within the F/M system. It provides options for identification that exceed binary sex/gender categories. However, within a mostly binary classification system, the X marker can be a double-edged sword. Arguably, those who have limited ability to pass as gender normative are in most dire need of an ID that reflects their presented gender identity, as their presentation is constantly questioned. Yet the X marker may draw attention to their difference, paradoxically exposing them as gender nonconforming. In those cases, it would seem that some would prefer to have their sex designation reclassified as M or F, to provide them extra protection in the form of lowering their visibility. Further, the X marker may make state surveillance of gender dissidents easier.
Nonbinary sex designation still follows a binary logic. Nonbinary sex designations, constructed as their own separated category, follow the binary logic itself by providing a well-defined category of “nonbinary.” X markers create a binary, “nonbinary” classification. This position is always already in relation to binary categories themselves and the greater scheme of distribution of differentiated legal classes across the population (Spade, 2015).
Reviewing different implementations of allowing X sex designation reveals that for the most part, they also conform to the same administrative structural limitation of the F/M category. The New Zealand model, which resembles gender self-determination, amplifies stability in the form of declaring how long the applicant has maintained their sex/gender and by warning applicants to avoid multiple changes. Australia requires that an applicant’s documents be corroborated by a doctor or psychologist or even proof of surgical intervention. The Ontario reform, even if it can be considered a significant change, creates an irrelevant difference between those who want to have an F/M marker and those who want an X marker, with the former still under a medical corroboration regime while the latter are free to self-declare.
Much of the critique that current models of F/M reclassification are limited in addressing systemic harms is valid here too. While nonbinary sex markers can challenge the stability of dominant sex categories F/M by allowing options that go beyond the binary, they have yet to question birth assignment of sex itself. They currently only offer after-the-fact routes for reclassification, though this is also changing. In 2017 the Canadian provinces of British Columbia, Newfoundland, and Alberta, as well as Washington State in the United States, issued or allowed the issuing of nonbinary birth certificates at the demand of parents. However, even the possibility of assigning nonbinary designation does not challenge the practice of birth assignment to begin with. The diversion from binary assignment, as Foucault would argue, further constitutes the rule.
While advocates such as the Gender-Free ID coalition in British Columbia demand that the sex designation be removed from IDs and that there be an end to the practice of birth assignment all together, administrative reforms are going as far as adding a third option. This third option is still within the logic that justifies, in most cases, assigning binary sex designation at birth. Under these conditions, we should consider that perhaps providing an option for a nonbinary sex marker is also linked to the privatization and individualization of gender itself.
The move from the body to the self in sex reclassification laws and policies, as reflected in the shift from sterilization requirements to self-determination and nonbinary designations, exposes a net of conflicting discursive universes that shapes sex designations and their reclassification, from the legal to the social, to the individualistic self and back. Interests, ideas, and meanings are fluctuating in the ongoing negotiation between gender nonconforming emerging needs and the regulatory state, reconfiguring the category of sex itself in ways that affect all citizens, as they are all assigned a sex at birth.
Reviewing policies regarding sex reclassification, this article argues that they share a common attachment to stability as a way of keeping administrative control over sex/gender. Policies requiring medical intervention locate this stability entirely in the body, reflecting not only contested medical standards but also the idea that sex is a biological attribute of a body which can be modified by technological means. Corroboration-based policies seem to acknowledge that sex/gender also relates to the subjective self. Still, that self is only made present through a third party, often a medical authority. Gender self-determination understands sex/gender as an inner stable truth of the self; thus, it grants the applicant autonomy to declare their gender and places a burden on the state to respect such declarations. Yet GSD paradoxically allows the state to evade its responsibility evoked by the regulation of sex and its daily private usage as a differentiating category. The move for enabling a third option for sex designation, the X marker, while challenging the binary designation in many ways still legitimizes and reinforces the distribution of differentiated status legal of F/M at birth.
Even the most innovative reforms have yet to challenge the presumption of the existence of a fixed identity to be found deep within the self of the autonomous individual. Whether this identity is binary or not, it is a stable entity that can be tracked and expressed in the absence of external interference. What is changing are the modes by which a shift from one stable category to the other is to be achieved. It changes from external to internal, from the body to the self. Yet these reforms have limited ability to address systemic harm.
To account for the broader system of sex/gender-based distribution of resources and opportunities that are reflected and sustained through reclassification, one needs to go back to the birthing moment of sex designation, to the birth assignment itself, to utilize gender nonconforming perspectives to uncover the regulatory justifications for allocating a differentiated legal status at birth. Highlighting how birth assignment creates differentiated legal statuses and how sex designation carries on and bolsters these differentiations, would provide a better basis through which legal schemes of reclassification can be understood. Better analysis of current transformations in sex reclassification policies allows for the reconceptualization of regulatory processes and their reforms in relation to lived experiences, to consider how the interests of a certain group, such as nonbinary communities and trans movements, impact and are impacted by broader systemic arrangements, such as the designation of sex. To conclude, this article suggests that it is sex classification rather than reclassification that needs to be the focus of further research and reforms.
The author wishes to thank Paisley Currah for his regress feedback and guidance. Thank you also to Brenda Cossman, Dina Georgis, Dean Spade and Zohar Weiman Kelman, and the editors of the Oxford Encyclopedia of LGBT policy and politics.
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