Beyond the Binary: Constitutional Challenges to Male/Female Sex Classification Systems

Abstract

Transgender people have challenged legal restrictions on their ability to change their gender markers on their official documents for decades. In contrast, intersex people and other people who do not identify as either male or female have only recently objected to the rules limiting gender indicators to the binary classifications of M and F. A number of courts, legislatures, and government agencies now recognize people’s nonbinary gender, but the acceptance is far from universal. Under the current system, individuals may have an M on one official document, an F on another, and an X/I on a third document. This patchwork quilt system is likely to remain intact until a court determines that denying someone the right to identify as something other than M or F is unconstitutional. This article explores the constitutional implications of denying someone the ability to identify as neither male nor female. It concludes that government agencies that deny people the ability to self-identify as a sex other than male or female may violate the United States Constitution’s equal protection and substantive due process guarantees.

Keywords: equal protection, gender, intersex, nonbinary, sex, sex classification, substantive due process, transgender

JEL Classification: K00, K1, K10, K36, K49