The Legal Status of Intersex Persons in the United States

JULIE A. GREENBERG, The Legal Status of Intersex Persons in the United States, in THE LEGAL STATUS OF INTERSEX PERSONS (Jens Scherpe, ed. Intersentia 2018 Forthcoming).

Thomas Jefferson School of Law Research Paper No. 3148013

11 Pages Posted: 26 Mar 2018 Last revised: 5 Apr 2018

Date Written: March 23, 2018

Abstract

United States citizens typically possess a number of government issued identity documents that contain a sex indicator. These documents may include a federally issued passport, a state issued drivers’ license, and a birth certificate that may be issued by the state, county, or city where the person was born. Each government entity issuing these documents operates independently and is governed by different statutes, rules, and regulations. Therefore, people who are transgender, intersex, or do not identify as either male (M) or female (F) may possess identity documents with inconsistent gender indicators.

Although transgender people have challenged legal restrictions on their ability to change an M to an F or an F to an M on their identity documents for decades, people who do not identify as either M or F have only recently challenged the rules limiting the gender indicator to the binary classifications of only M and F. In the past few years, some individuals who identify as neither male nor female sought court orders allowing them to be legally recognized as a sex other than male or female. Many of the challenges have been successful, but court recognition of a non-binary sex marker has not led to abandonment of the binary system by state and federal agencies responsible for issuing and amending identity documents.

The current patchwork quilt U.S. system, under which intersex people and people who do not identify within the binary sex classifications may have an M on one official document, an F on another, and an X/I on a third document, will likely remain intact until a court determines that denying someone the right to identify as something other than M or F is unconstitutional.

This chapter discusses the legal challenges that people who identify as neither male nor female have brought and examines the legal limitations on the ability to use a court order affirming someone’s gender as non-binary to obtain amended identity documents. It then discusses the constitutional ramifications of denying someone the ability to identify as neither male nor female and concludes that government agencies that deny people the ability to self-identify as a sex other than male or female likely violate the United States Constitution’s equal protection and substantive due process guarantees.

Keywords: non-binary, intersex, transgender, identity documents, binary classification, equal protection, due process, right to dignity and autonomy, right to travel

JEL Classification: K00, K10

Suggested Citation

Greenberg, Julie A., The Legal Status of Intersex Persons in the United States (March 23, 2018). JULIE A. GREENBERG, The Legal Status of Intersex Persons in the United States, in THE LEGAL STATUS OF INTERSEX PERSONS (Jens Scherpe, ed. Intersentia 2018 Forthcoming). , Thomas Jefferson School of Law Research Paper No. 3148013, Available at SSRN: https://ssrn.com/abstract=3148013 or http://dx.doi.org/10.2139/ssrn.3148013

Julie A. Greenberg (Contact Author)

Thomas Jefferson School of Law ( email )

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San Diego, CA 92101
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