//  2/25/21  //  Commentary

Harper Jean Tobin was the Director of Policy at the National Center for Transgender Equality from 2009-2020. She now advises advocacy groups on gender justice, civil rights, and administrative law and policy issues.

While mostly thought of as a state issue, the federal government issues over a dozen major kinds of identification cards and similar documents used by millions of people day to travel, work, do business, and for other everyday purpose. Most of us never think about the fact these these documents list our sex. But hundreds of thousands of Americans who are transgender or intersex risk embarrassment, discrimination, or worse in everyday situations when they must present ID that misidentifies their sex. Correcting this on various documents can mean a morass of forms, fees, and doctor’s notes—if it’s possible at all. While federal policies are not as draconian as a decade ago, the federal government makes it harder than most states, many of which now allow self-selection and a neutral ‘X’ option.

The White House recently stated that "President Biden remains committed to advancing state and federal efforts that allow transgender and non-binary Americans to update their identification documents to accurately reflect their gender identity." And there’s no question that he has authority to do it: from the 11 million US passports issued each year, to millions of green cards and work permits, to millions more DHS trusted-traveler cards and merchant marine credentials, to travel documents for visitors and refugees, to the 65,000 birth certificates issued annually for Americans born abroad, Congress has given agencies broad latitude on what personal information gets printed on them. But is the best way to solve this problem to make sure everyone has the right sex marker on their ID—or not to list it at all?

Forcing individuals to carry government ID that may misidentify their gender raises grave constitutional questions. Several district courts have now held that state restrictions on gender changes violate the constitutional right to informational privacy. Last November, another held that the State Department’s requirement of a doctor’s note to change gender on passports violated equal protection. Courts in these cases given the government room to choose among possible remedies, and states have so far chosen to move toward allowing applicants to simply choose an M, F, or X. This is partly because that’s what plaintiffs were seeking, and partly because the REAL ID Act requires many state IDs to list sex.

Gender markers on ID have also given rise to administrative law challenges. Last year, the Tenth Circuit found it unnecessary to reach equal protection and due process claims in a similar case, instead holding that the State Department acted arbitrarily in forcing an applicant to choose between an M or F marker. The court rejected arguments that concerns of accuracy, technical constraints, or lack of medical consensus require this approach. While acknowledging that confusion could result any time government agencies use different procedures for designating gender, the court stressed stressed that “inaccuracies are inevitable” in the current system, and remanded for reconsideration. Both of the passport lawsuits are pending as the Biden Administration takes office, adding urgency to the President’s promise of action.

Other admin law principles are also implicated, and help point the way to an optimal approach. The Fair Information Practice Principles, which since 1973 have guided Congress and agencies, include both minimization and use limitation. The Paperwork Reduction Act states these principles as “minimizing the burden and maximizing the utility of information created, collected, maintained, used, disseminated, and retained by or for the Federal Government.” It requires agencies and the Office of Management and Budget to regularly review their data uses, starting with whether they are “necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility.”  The Privacy Act further requires that agenciesmust use and disseminate “only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required” by law, and allows for private suits for infringements. And the E-Government Act requires Privacy Impact Assessments for new or changed in information practice that may create privacy risks. And as the passport case above illustrates, these decisions must also meet the APA’s standards for reasoned decisionmaking.

Applying these principles, it’s clear that in an age of photo ID and other biometrics, a sex designation is far from essential for identification purposes. It’s about the furthest thing from a unique identifier, and requires dubious judgments about what a man or woman should look like. That’s why some countries like the Netherlands and Costa Rica have moved to nix it from national ID cards, while others like Germany never had it in the first place. The UN’s Independent Expert on sexual orientation and gender identity has expressed “significant doubts as to the real need for the pervasive exhibition of gender markers in official and non-official documentation, which appears to be fulfilling the vestiges of needs that have long been superseded”— if they ever existed at all. Its report urges states to “refrain from gathering and exhibiting data without a legitimate, proportionate and necessary purpose,”  including “separate considerations for the need to gather and the need to exhibit.”

This is the only way to ensure that no one ever has their sex mislabeled on ID, and no one ever has to deal with forms, fees, or other burdens to fix it. This includes trans and intersex people, and also thousands of others each year whose sex is misprinted by a typo. That’s a solution anyone who wants less bureaucracy—and less litigation—should be able to get behind.

President Biden can adopt this approach in a modest and straightforward way: by reminding agencies that these administrative law principles apply to sex markers just like any other personal data. Agencies and OMB should simply be directed to evaluate the exhibition of gender markers as a part of these regular information collection reviews and privacy assessments. Out of over a dozen major types of federal ID, most are not required by any law to list gender, and most of them have no need to. At the same time, this approach allows agencies to consider the purposes of particular documents and records and decide whether exhibiting gender is needed—including whether this need changes over time.

In many cases, gender simply doesn’t need to be collected when applying for—say—a work permit. In other cases, information should still be collected, but not exhibited. Social Security cards have never listed gender, and Medicare removed gender markers a few years ago—but both agencies continue to collect sex data for important statistical uses. For consular birth records, a New England Journal of Medicine op-ed recently suggested the same approach: simply move sex data below the “line of demarcation,” removing it from the printed certificate. The Office of Personnel Management could collect gender statistics the same way it does with race, ethnicity, and disability—through a voluntary form separate from personnel files.

The President should also direct agencies that, where they determine that displaying gender is necessary, it should be based on self-identification. Rather than have additional, burdensome processes or forms, should simply be able to check a box for M, F, or X. Two very important documents will have to retain sex marker for the time being. International standards currently require sex markers on passports—though that was not always true, and the US could help change it in the future. The Immigration and Nationality Act requires sex be listed on naturalization and citizenship certificates—something Congress easily fix through the DHS reauthorization bill. Congress can also easily give states the same flexibility by tweaking (or better yet, repealing) the REAL ID Act. But so long as some ID list sex markers, self-identification is simple, fair, and much easier to administer.

Biden has already specifically committed to implement the simple check-box approach for passports, but he should also remind agencies to ensure longstanding principles of administrative law and information management be applied to gender markers. Just as was done in decades past with race, we can remove these labels from ID cards and other everyday records while collecting voluntary, confidential data for statistical purposes. We urgently need to collect more, confidential data in many contexts to advance gender equity—and we can do this without making every American carry and display a government-issued gender label.

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