Legal recognition of non-binary gender

Multiple countries legally recognize non-binary or third gender classifications. These classifications are typically based on a person's gender identity. In some countries, such classifications may only be available to intersex people, born with sex characteristics that "do not fit the typical definitions for male or female bodies."

History

In recent years, some societies have begun to legally recognize non-binary, genderqueer, or third gender identities. Some non-western societies have long recognized transgender people as a third gender, though this may not (or may only recently) include internationally-recognized ‘legal rights’ for such people. This has much more to do with the nature of the legal system towards gender than the nature of the societies towards it, as referenced by the distinct cultural place and societal recognition privileging members of the third gender in non-Western societies which recognize them—five examples being pre-colonial Inca Qariwarmi, Pali pandakas, androgynes in the Talmud, Hijras as described further below, and the Inuit ‘third gender’.

Among western nations, Australia may have been the first to recognize a third classification, with Alex MacFarlane, who is intersex, receiving a passport with sex marked as indeterminate in 2003. Transgender advocate Norrie May-Welby was recognized as having unspecified status in 2014. In 2016, an Oregon circuit court ruled that Elisa Rae Shupe could legally change gender to non-binary.

Transgender people

The Open Society Foundations published a report, ''License to Be Yourself'', in May 2014, documenting "some of the world's most progressive and rights-based laws and policies that enable trans people to change their gender identity on official documents." The report comments on the recognition of third classifications, stating:

The document also quotes Mauro Cabral of Global Action for Trans Equality:

The report concludes that two or three options are insufficient: "A more inclusive approach would be to increase options for people to self-define their sex and gender identity."

Intersex people

Like all individuals, some intersex individuals may be raised as a particular sex (male or female) but then identify with another later in life, while most do not. A 2012 clinical review suggests that between 8.5–20% of persons with intersex conditions may experience gender dysphoria, distress or discomfort as a result of the sex and gender they were assigned at birth. Australian sociological research published in 2016 shows that 19% of 272 people born with atypical sex characteristics participating in the study selected an "X" or "other" option, while 52% are women, 23% men and 6% unsure.

According to the Asia Pacific Forum of National Human Rights Institutions, few countries have provided for the legal recognition of intersex people. The Asia Pacific Forum states that the legal recognition of intersex people is firstly about access to the same rights as other men and women, when assigned male or female; secondly it is about access to administrative corrections to legal documents when an original sex assignment is not appropriate; and thirdly, while opt in schemes may help some individuals, legal recognition is not about the creation of a third sex or gender classification for intersex people as a population.

In March 2017, an Australian and New Zealand community statement called for an end to legal classification of sex, stating that legal third classifications, like binary classifications, were based on structural violence and failed to respect diversity and a "right to self-determination". It also called for the criminalization of deferrable intersex medical interventions.

Jurisdictions

Many countries have adopted laws to accommodate non-binary gender identities.

Argentina

In 2012 and under then president Cristina Fernández de Kirchner, Argentina passed its Gender Identity Law ( es, Ley de identidad de género), which allows transgender people to identify with their chosen gender on official documents without first having to receive hormone therapy, gender reassignment surgery or psychiatric counseling. As such, transgender rights in Argentina have been lauded by many as some of the world's most progressive.

In November 2018, two non-binary people from Mendoza Province became the first to obtain an ID and birth certificate without indication of sex. In early 2019, trans activist Lara María Bertolini was allowed to change her official sex to the transfeminine non-binary label " travesti femininity" ( es, femineidad travesti) through a judicial ruling that was considered a landmark for the travesti movement. Judge Myriam Cataldi ruled that the Gender Identity Law applied to Bertolini's case, citing the law's definition of "gender identity" as: "the internal and individual experience of gender as each person feels it, which may or may not correspond to the sex assigned at birth, including the personal experience of the body."

On 20 July 2021, President Alberto Fernández signed a decree (Decreto 476/2021) mandating the National Registry of Persons (RENAPER) to allow a third gender option on all national identity cards and passports, marked as an "X". The measure applies to non-citizen permanent residents who possess Argentine identity cards as well. In compliance with the 2012 Gender Identity Law, this made Argentina the first country in South America to legally recognize non-binary gender on all official documentation, freely and upon the person's request.

Austria

After the decision of the German Federal Constitutional Court (Bundesverfassungsgericht) of 9 November 2017, Austrian media report that a similar case is also pending at the Constitutional Court (Verfassungsgerichtshof) in Austria. Two lower judicial instances already decided against the possibility of a "third gender". Each year at least 35 children in Austria are reported to be born with ambiguous sex characteristics. Surgical interventions on intersex children, to make them fit one of the binary sex characteristics, are criticized by ''Verein Intergeschlechtliche Menschen Österreich (VIMÖ)'', an Austrian association fighting for the rights of intersex people. They demand that children should be free to decide on these matters when they are grown up.
Johannes Wahala, president of the Austrian Society For Sexologies and head of ''Beratungsstelle Courage'' advice center in Graz condemns these operations and wishes for the introduction of a third gender.

On 15 June 2018, the Austrian Constitutional Court reached a decision, published in a news release on 29 June, that Article 8 of the European Convention on Human Rights guarantees recognition of gender identity beyond the binary male or female, and that people with a variation in gender development other than male or female must be allowed to leave a gender entry empty and must be allowed to have a positive other entry implemented. They also found that current law is not in contradiction to these requirements, and can be interpreted in a way that is conformant to the constitutional right of recognition of gender identity via Article 8 of the ECHR. The Court ruled that the national interests listed in Article 8.1 ECHR do not outweigh the very sensible interest of an individual to recognition of their personal life, including gender identity, and that other laws can be adapted if needed. The Court indicate that administrative bodies may require proof of the adequacy of a change to an entry and the relation to a persons actual social life, and that Article 8.1 ECHR does not establish a right to arbitrarily named entries. They have not decided on a specific name a third gender option should have, but cite recommendations as "divers", "inter", "offen".
Alex Jürgen, an intersex activist, fought for their right to have a non-binary option in their passport and was the first person in Austria to receive it.

Options besides male and female are only available for intersex people, who are required to provide medical records to prove their sex.

Australia

First reported in January 2003, Australians can choose "X" as their gender or sex. Alex MacFarlane is believed to be the first person in Australia to obtain a birth certificate recording sex as indeterminate, and the first Australian passport with an 'X' sex marker in 2003. This was stated by the West Australian newspaper to be on the basis of a challenge by MacFarlane, using an indeterminate birth certificate issued by the State of Victoria. Other individuals known to have similar early options include Tony Briffa of Organisation Intersex International Australia and former mayor of City of Hobsons Bay, Victoria, previously acknowledged as the world's first openly intersex public official and mayor."OII VP Tony Briffa to wed partner in NZ ceremony – Gay News Network"
, ''Gay News Network'', 27 September 2013

Government policy between 2003 and 2011 was to issue passports with an 'X' marker to persons who could "present a birth certificate that notes their sex as indeterminate". In 2011, the Australian Passport Office introduced new guidelines for issuing of passports with a new gender, and broadened availability of an X descriptor to all individuals with documented "indeterminate" sex. The revised policy stated that "sex reassignment surgery is not a prerequisite to issue a passport in a new gender. Birth or citizenship certificates do not need to be amended."

Australian Commonwealth guidelines on the recognition of sex and gender, published in June 2013, extended the use of an 'X' gender marker to any adult who chooses that option, in all dealings with the Commonwealth government and its agencies. The option is being introduced over a three-year period. The guidelines also clarify that the federal government collects data on gender, rather than sex. In March 2014, the Australian Capital Territory introduced an 'X' classification for birth certificates.

Norrie May-Welby is popularly – but erroneously – often regarded as the first person in the world to obtain officially indeterminate, unspecified or "genderless" status."No sex for me, please! Ex-transsexual Australian Norrie May-Welby is first legally genderless person"
, New York Daily News. 16 March 2010.
The Telegraph. 15 Mar 2010.
Daily Life Australia. 8 November 2013 May-Welby became the first transsexual person in Australia to pursue a legal status of neither a man nor a woman, in 2010."Norrie May-Welby: The World's First Legally Genderless Person"
The Huffington Post. 18 March 2010. In April 2014, the High Court of Australia ruled that NSW Registry of Births, Deaths and Marriages must record in the register that the sex of May-Welby is "non-specific". The Court found that sex affirmation "surgery did not resolve her sexual ambiguity".

An alliance of organizations including the National LGBTI Health Alliance, Organisation Intersex International Australia and Transgender Victoria has called for X to be redefined as non-binary.

In March 2017, an Australian and Aotearoa/New Zealand community statement called for an end to legal classification of sex, stating that legal third classifications, like binary classifications, were based on structural violence and failed to respect diversity and a "right to self-determination".

In April 2019, Tasmania became the first state or territory in Australia to make sex or gender identifiers in birth certificates optional and providing for official definitions for 'sex' and 'gender' (only 'sex' was defined before the reforms). The reform was legislated by a non-government coalition of MPs and adopted a 'opt-in' model for sex identification on birth certificates. However, a binary classification of sex (male or female, with no intersex/unspecified option) is still collected for medical purposes. Children born with ambiguous genitalia are given an additional 60 days to choose a sex for registration. The child's sex will be displayed on the birth certificate only if the parents choose to opt-in. The same reforms also allowed persons over the age of 16 to change their gender identity on official documentation – without a sex reassignment surgery or hormone replacement therapy – by providing a gender declaration.

Belgium

In June 2019, the Constitutional Court of Belgium struck down certain parts of the country's 2017 transgender law. The proceedings against the law were initiated by LGBT rights organizations, who argued that the law still discriminated against people with a non-binary or genderfluid identity, because it still only allowed people to register as either "male" or "female". The Constitutional Court agreed with the action brought against the law, and found the contested provisions to be discriminatory and therefore unconstitutional. Though the Court suggested a few ways in which to remedy the unconstitutional aspects, such as "the creation of one or more additional categories" or "the possibility to remove the registration of sex or gender as an element of a person's civil status", it also stressed that the responsibility to remediate the law's shortcomings remained with the legislature.

The De Croo Government, Belgium's federal government which took office in October 2020, announced plans to introduce the possibility to register under the gender identifier "X", in order to address the judgment of the Constitutional Court. This was expressed by the new minister of Justice in the De Croo Government, Vincent Van Quickenborne, in November 2020. This proposition was rejected in favor of erasing any mention of gender on identity cards (which appeared in 2003), while the National Registry will still mention the assigned gender at birth. The law will be effective in 2022.

Brazil

There is no recognition of a third gender option nationwide, but since 2020 non-binary people have been getting court authorizations to register their sex as "unspecified", "non-identified" or "non-binary" in the civil registry and since 2022, for purposes of filling out the identity card, the sex field must follow the ICAO standard, with 1 character, M, F or X.

While requesting a new passport, Brazilians are able to select an unspecified sex, however it is not known since when there's this option.

Since 12 September 2021, by decision of the National Justice Council, notaries must register intersex children with the sex ignored on birth certificates.

The state of Rio de Janeiro, thanks to the work of the State Public Defender's Office, has been allowing non-binary people to register their birth certificates and identity cards with the "non-binary" gender in gender-neutral language.

On April 22, 2022, Rio Grande do Sul Justice assured non-binary people to change their first name and sex in their birth record, according to their self-perceived identity, regardless of judicial authorization, allowing include the expression "non-binary" in the sex field upon a request made by the interested party to a notary's office.

In May 9, 2022, Bahia Justice publishes provision allowing the inclusion of “non-binary” gender in the Civil Registry.

Canada

In June 2016, the government of the province of Ontario announced changes to the way gender will be displayed on health cards and driver's licenses. Starting June 13, the Ontario health card no longer displays a sex designation. In early 2017, Ontario drivers will have the option to display "X" as a gender identifier on their driver's licenses.

In April 2017, a baby born in British Columbia, Searyl Atli Doty, became the first in the world known to be issued a health card with a gender-neutral "U" sex marker. The parent, Kori Doty, who is non-binary transgender, wanted to give the child the opportunity to discover their own gender identity. The province has refused to issue a birth certificate to the child without specifying a gender; Doty has filed a legal challenge. Doty and seven other transgender and intersex people have filed a human rights complaint against the province, alleging that publishing gender markers on birth certificates is discriminatory.

In July 2017, the Northwest Territories began allowing "X" as a non-binary option on birth certificates.

On August 31, 2017, the federal government began allowing an observation to be added to passports requesting that the holder's gender should be read as "X", indicating that it is unspecified, though a gender of "M" or "F" had to be added as a gender for an undefined period to comply with legal requirements of other countries. In June 2019, Immigration, Refugees and Citizenship Canada announced that non-binary people may also apply to have an "X" gender marker.

Chile

A ruling of the Third Family Court of Santiago, issued on April 25, 2022, ordered the Civil Registry and Identification Service to register a 17-year-old adolescent with non-binary gender on the birth certificate, being the first judicial resolution of its kind in the country. On May 25, 2022, the First Civil Court of Santiago issued a ruling recognizing an adult person as non-binary and ordering the Civil Registry to rectify the birth certificate, in which the marker "X" will appear instead of " female or male." On October 14, 2022, the Civil Registry officially issued to Shane Cienfuegos the first non-binary identity card with the marker "X" in the country. In July 2022, the Thirteenth Chamber of the Santiago Court of Appeals had ruled in favor of the request to rectify the birth certificate to recognize non-binary gender identity.

Colombia

In February 2022, the Constitutional Court of Colombia ruled that a non-binary person was entitled to a birth certificate from the Ninth Notary of Medellín and citizen's identity card from the National Civil Registry with the marker "no binario" or "NB" in the sex field on both. The court also ordered the Colombian government to facilitate the inclusion of such a marker on identity documents and ordered the Congress to amend laws as needed to facilitate legal recognition of non-binary individuals' rights.

Denmark

According to comment by Transgender Europe, Danish citizens (including Greenlandic- and Faroese nationals) have been issued passport with option 'X' upon application, without medical requirements. However, it follows from the Danish Passport Regulation

ref name="Royal assent KL"> that persons with even Personal identification number (Denmark), personal identification numbers receive the gender marker "F" and persons with odd personal identification numbers the gender marker "M" (§ 4(4)), with the only exception that persons who have not (yet) had an official gender change but to whom the National Hospital's Sexological Clinic has certified that they are transsexual can obtain the gender marker "X" (§ 4(5)). Accordingly, legal gender remains binary in Denmark (including Greenland and the Faroe Islands) and only transsexual people without a legal gender change can obtain an X marker in their passport.

Germany

Germany is thought to be the first European country that recognizes "indeterminate" sex on birth certificates, which is materialized by the absence of any gender marker, from November 2013. A report by the German Ethics Council stated that the law was passed because "Many people who were subjected to a 'normalizing' operation in their childhood have later felt it to have been a mutilation and would never have agreed to it as adults." Deutsche Welle reported that an "indeterminate" 'option' was made available for the birth certificates of intersex infants with ambiguous genitalia on 1 November 2013. The move is controversial with many intersex advocates in Germany and elsewhere suggesting that it might encourage surgical interventions, or simply fails to address the key health concerns of intersex people. On 21 January 2015, the Celle Court of Appeals confirmed in a judgment that intersex people cannot obtain a gender marker other than "female" or "male" in their birth certificate, but only the absence of any such marker. The court held at the same time that even an adult intersex person who was registered with a gender marker at birth can obtain the deletion of that gender marker. This judgment was sent for review by the Federal Court of Justice.

On 8 November 2017, the Federal Constitutional Court released a press statement about its ruling from 10 October 2017, which is in favour of a positive third gender option instead of no entry. On 15 August 2018, the German government approved a draft law allowing a third gender option on birth certificates for babies who are not distinctly male or female. On 22 December 2018, the adopted third gender law entered into force, allowing the choice for intersex people (both at birth and at a later age) between "female", "male", "diverse" and no gender marker at all. In case of a change later in life, first names can also be changed. To change the marker and/or names according to this law, a doctor's note is required, but it is not specified what kind of "variance of gender development" is required for the law. As such, non-intersex non-binary people have made use of this law to change their markers and names as personally trusted doctors approve and give out such a required note nevertheless. In the meantime, an appeals court had held that a nonbinary status must also be open to non-intersex non-binary people; the adopted act does not address this category of people and their situation therefore first remained unclear pending additional case-law. On 22 April 2020, the Federal Court of Justice ruled that in order to obtain nonbinary status, these persons must follow the procedure set out in the legislation on transsexuality which applies by analogy, after which they can also choose between "diverse" and no gender marker at all.

Iceland

In June 2019, the Icelandic Parliament voted 45–0 on a bill to implement a progressive "self-determination gender change model law", similar to numerous European and South American countries. The bill includes a third gender option known as "X" on official documents. The law went into effect on 1 January 2020.

India

The Hijra of India are probably the most well known and populous third sex type in the modern world – Mumbai-based community health organization The Humsafar Trust estimates there are between 5 and 6 million hijras in India. In different areas they are known as Aravani/Aruvani or Jogappa. Often (somewhat misleadingly) called eunuchs in English, they may be born intersex or apparently male, dress in feminine clothes and generally see themselves as neither men nor women. Only eight percent of hijras visiting Humsafar clinics are ''nirwaan'' (castrated). Indian photographer Dayanita Singh writes about her friendship with a Hijra, Mona Ahmed, and their two different societies' beliefs about gender: "When I once asked her if she would like to go to Singapore for a sex change operation, she told me, 'You really do not understand. I am the third sex, not a man trying to be a woman. It is your society's problem that you only recognize two sexes.'" Hijra social movements have campaigned for recognition as a third sex, and in 2005, Indian passport application forms were updated with three gender options: M, F, and E (for male, female, and eunuch, respectively). Some Indian languages such as Sanskrit have three gender ‘options’— specifically masculine, feminine and neuter forms of nouns.

In November 2009, India agreed to list eunuchs and transgender people as "others", distinct from males and females, in voting rolls and voter identity cards. On April 15, 2014, the Supreme Court of India recognized a third gender that is neither male nor female, and as a class entitled to reservation in education and jobs, stating "Recognition of transgenders as a third gender is not a social or medical issue but a human rights issue." This verdict made India one of the few countries to give this landmark judgment.

In addition to the feminine role of hijras, which is widespread across the subcontinent, a few occurrences of institutionalized "female masculinity" have been noted in modern India. Among the Gaddhi in the foothills of the Himalayas, some girls adopt a role as a ''sadhin'', renouncing marriage, and dressing and working as men, but retaining female names and pronouns. A late-nineteenth century anthropologist noted the existence of a similar role in Madras, that of the ''basivi''. However, historian Walter Penrose concludes that in both cases "their status is perhaps more 'transgendered' than 'third-gendered.'"

In April 2014, Justice KS Radhakrishnan, of Supreme Court of India declared transgender to be the third gender in Indian law, in a case brought by the National Legal Services Authority (Nalsa) against Union of India and others. The ruling said:

Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex. Our society often ridicules and abuses the Transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society's unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change.

Justice Radhakrishnan said that transgender people should be treated consistently with other minorities under the law, enabling them to access jobs, healthcare and education. He framed the issue as one of human rights, saying that, "These TGs, even though insignificant in numbers, are still human beings and therefore they have every right to enjoy their human rights", concluding by declaring that:

# Hijras, Eunuchs, apart from binary gender, be treated as "third gender" for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.
#Transgender persons' right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.

The Netherlands

In May 2018, Leonne Zeegers was the first Dutch citizen to receive the "X" marked gender on the passport instead of "male" or "female" (see photo of the person's passpor
here
. Leonne, then 57, was born intersex and raised male, before having gender reassignment surgery and become female, but still identifies as an intersex person. Leonne won a court case which meant that preventing someone from registering officially as gender neutral is a "violation of private life, self-determination and personal autonomy". It will, however, still be the decision of the court on whether the "X" will be issued on anyone's passport in the future. The ruling opened doors for Dutch LGBT groups to ask the government for anyone to be able to identify as gender neutral in the future.

Nepal

On December 27, 2007, the Supreme Court of Nepal issued a decision mandating that the government scrap all laws that discriminated based on sexual orientation and/or gender identity and establish a committee to study same-sex marriage policy. The court also established a third-gender category. Nepalese official documents afford citizens three gender options: male, female, and "others". This may include people who present or perform as a gender that is different from the one that was assigned to them at birth. Nepal's 2011 census was the first national census in the world to allow people to register as a gender other than male or female. However, it was reported that "logistical problems, discrimination on the part of census-takers, and fear among some third genders" were interfering with the process, and eventually the census was published only listing male and female, leaving non-binary people outside or forcing them in a gender that was not their own. The 2007 supreme court decision ordered the government to issue citizenship ID cards that allowed "third-gender" or "other" to be listed. The court also ordered that the only requirements to identify as third-gender would be the person's own self-identification.

"Legal provisions should be made to provide for gender identity to the people of transgender or third gender, under which female third gender, male third gender and intersexual are grouped, as per the concerned person's self-feeling"

More recent material indicates that this third option is not available to intersex persons.

New Zealand

Birth certificates are available at birth showing "indeterminate" sex if it is not possible to assign a sex. The New Zealand Department of Internal Affairs states, "A person's sex can be recorded as indeterminate at the time of birth if it cannot be ascertained that the person is either male or female, and there are a number of people so recorded."

Passports are available from December 2012 with an 'X' sex descriptor, where "X" means "indeterminate/unspecified". These were originally introduced for people transitioning gender.

On 17 July 2015, Statistics New Zealand introduced the first version of a gender identity classification standard for statistical purposes. The current version of the standard was introduced in April 2021 with the option of three categories (male, female, or another gender) or five categories (cisgender male, cisgender female, transgender male, transgender female, or another gender).

In March 2017, an Aotearoa/New Zealand and Australian community statement called for an end to legal classification of sex, stating that legal third classifications, like binary classifications, were based on structural violence and failed to respect diversity and a "right to self-determination".

Pakistan

In Pakistan, the polite term is ''khwaja sara'' or "khwaja sira" (Urdu

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