Why Does the Government Need to Know Your Gender?

Gender

For most people, a mistake on their insurance card or driver’s license is a minor inconvenience. For transgender people, it can represent a real threat to their liberty and even to their safety.

In a survey of nearly 28,000 transgender adults in the United States, nearly one-third of respondents who showed an ID with a name or gender that did not match their gender presentation were verbally harassed, denied service, asked to leave, or even assaulted.

It’s one reason the National Center for Transgender Equality is proud to announce a historic new rule from the Centers for Medicaid and Medicare. Starting this week, CMS will begin sending out new cards to the 44 million Medicare recipients, none of which will include any mention of the recipients’ gender.

The change at CMS is certainly the largest of its kind, but it’s far from the first. With new rules concerning driver’s licenses and birth certificates in Oregon, California, Pennsylvania, and the District of Columbia, it's a good time to talk about whether ID documents we use every day should list our gender at all.

Though a small detail, gender markers on official documents are just one example of the needless ways government can police your identity. If all citizens are treated equally under the law anyway, then why does the government need to know that part of your life in the first place?

State vital records bureaus may have reason to record sex assigned at birth for public health statistics, but does that information need to be on the printed birth certificate? For documents like driver’s licenses or passports that already feature a photograph, does an M or F or X — pretty much the furthest thing from a unique identifier — really help identify individuals and prevent identity theft? It’s far from clear that the answer to any of these questions is yes.

In a keynote speech I gave at a 2014 gathering of advocates and health care providers, I said the time had come to start talking about removing gender from many official documents. Government gender categories are unnecessary and can cause problems for transgender and nontransgender people alike.

My sentiments were echoed at last year’s edition of that same conference by Temple University professor Heath Fogg Davis. In his 2017 book Beyond Trans: Does Gender Matter?, Davis relates the experience of the Philadelphia public transit system.

In 2007, the system’s decades-old policy of putting gender markers on all monthly and weekly transit passes came under scrutiny when a well-known transgender activist was denied service on a commuter train because a transit employee did not believe she matched the gender found on her card.

The incident sparked an uproar as well as an official complaint from that activist with the Pennsylvania Human Relations Commission. It even led to the formation of a movement against the policy known as Riders Against Gender Exclusion, or RAGE. By 2012, the Philadelphia City Council unanimously called for an end to the practice.

After years of bad publicity over the matter, the transit system in Philadelphia dropped the gender markers on its passes in 2013.

The issue should serve as an example of the needless ways invasive government is making life harder for transgender people. By removing government from considerations of gender altogether, we can avoid trouble for the 1.4 million estimated transgender adults in the United States as well as uproars like the one in Philadelphia.

To be sure, correct gender markers can help prevent the embarrassment, harassment, or even violence that an incorrect one can spark. But even accurate gender markers invite unnecessary judgments about gender in public settings, and can contribute to harassment when someone doesn’t think you “look the part.”

While we at the NCTE are delighted about this change, there remain significant obstacles to removing gender from other forms of ID. For driver’s licenses and state ID cards, the federal REAL ID Act allows states to decide how to list gender, but still requires it be listed in some way.

New federal legislation would be required to clear the way for states to take gender off these documents. International standards for passports also require that gender be listed, although the International Civil Aviation Organization has discussed changing this requirement in the future.

No federal law or international standard requires that U.S. birth certificates list gender, so states would be free to remove gender from the face of short-form birth certificates even while continuing to collect and confidentially maintain gender as part of their internal vital statistics records. Pennsylvania recently came close when it replaced the words “mother” and “father” with the word “parent” on new birth certificates.

Gender matters — but it’s a personal matter. It’s personal enough that we should want the government nowhere near it. The rationales for listing gender in any given context need to be examined closely, and gender should not be listed just because it has been in the past. It may take time, but it’s past time to start the conversation.

HARPER JEAN TOBIN is the policy director for the National Center for Transgender Equality

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