On February 25, Ro Khanna, a Democratic member of the House of Representatives, proposed a bill that would instruct the U.S Department of State to add an additional sex marker category — “(X), Unspecified” — to U.S. passports, passport cards, and/or Consular Reports of Birth Abroad. The legislation, if passed, would help give people who are neither male nor female access to more affirming official documentation.
In a press release, Khanna described the bill, titled the “Gender Inclusive Passport Act,” as a matter of both respect and freedom for those who do not exclusively identify as men or women. “Respecting every American’s gender must extend to travel abroad,” he said. “Everyone in this country should have the freedom to express their preferred gender on passports.”
As Khanna notes in the release, the bill builds on similar, existing legislation at the state level. Today, at least 12 states offer options besides male or female on driver’s licenses and ID cards. Yet internationally recognized documents like passports still only allow one to select either male or female. Dana Zzyym, an intersex and nonbinary veteran of the U.S. Navy, brought this issue to the nation’s attention in 2015, when they sued the State Department for denying their passport application because they refused to check the male or female box. (Though a judge ruled in Zzyym’s favor in 2018, three years after they first filed, the Department has appealed; the case remains ongoing.)
“Our client, Dana Zzyym, an intersex and nonbinary veteran of the U.S. Navy, has for more than five years sought to obtain an accurate passport that truly reflects who they are,” said Paul Castillo, a lawyer for Lambda Legal, in the release. “Congressman Khanna’s bill will free Dana and other intersex, nonbinary, and other gender diverse Americans from the virtual nationwide house arrest into which the State Department has placed them.”
Besides generally creating more awareness about the realities and rights of those who identify outside the gender binary, the bill seeks to minimize the hurdles trans and gender-nonconforming applicants often face in accessing affirming documentation. For one, Ro Khanna’s bill would not require applicants to “undertake burdensome or expensive processes (such as procuring a signed affidavit from a physician) in order to update the sex marker on their passport,” according to the release. In addition, Khanna’s bill takes into account the nuances that may characterize TGNC folks’ decision to disclose their gender on official documentation by not mandating that those who identify outside of “male” or “female” on preexisting documents, such as drivers’ licenses or birth certificates, “list a corresponding ‘X’ on their passport.”
The bill has been supported by a broad coalition of both lawmakers and activists, including Rep. Mike Quigley, Vice Chair of the LGBT Equality Caucus, Hida Viloria, Founding Director of the Intersex Campaign for Equality, and David Stacy, the Government Affairs Director of the Human Rights Campaign. “As the proud mother of a non-binary child, I have seen from a deeply personal perspective the freedom that comes from being fully and authentically yourself. Unfortunately, too many of our institutions do not recognize those who do not fit within the gender binary, leaving them feeling erased and unsafe,” said Rep. Pramila Jayapal. “The Gender Inclusive Passport Act is an important corrective step,” she added.
Alex Binsfield, the co-founder of Beyond Binary Legal, noted the legislation’s capacity to raise awareness and understanding of the lived experiences and legal needs of the TGNC community. “This bill would constitute a necessary recognition of genders beyond the binary by the federal government,” they said in the release. “We hope that by its introduction, a federal bill acknowledging genders beyond the binary will raise public awareness and understanding regarding the fact that many people do not identify exclusively as a man or a woman and that this natural human variance must be respected.”
Mara Keisling, founder and executive director of the National Center for Transgender Equality, offered a more tempered assessment of the legislation. “The State Department could and should already be providing this option to U.S. citizens who are not male or female, as many states and other nations do,” she said in the release, continuing to subtly question the project of sex classification policies altogether: “If the government is going to be in the business of declaring and labeling our gender, it should at least reflect today’s science and allow everyone to answer truthfully.”
Should the legislation pass, the U.S. would join some other 10 nations, including Australia, Bangladesh, Canada, Germany, India, and New Zealand, in issuing passports with more than two gender options.
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