Social service agency sued for not allowing X gender mark

Nonbinary New Yorkers who currently must declare themselves as male or female to receive Medicaid, food stamps and other public assistance say in lawsuit filed Monday that the state is discriminating against them by failing to provide an X gender option.

The lawsuit filed against state and city agencies that run benefit programs seeks the type of nonbinary gender option already allowed on New York birth certificates and promised for driver’s licenses. The nonbinary plaintiffs said the “outdated” state computer system maintained by the Office of Temporary and Disability Assistance compels nonbinary people to either lie under oath or to be denied benefits.

“I was forced to choose between M or F, male or female, as a gender marker, which neither really align with how I express myself or feel inside. So that was particularly traumatic, especially during such a vulnerable time,” said Jules Donahue, one of three plaintiffs in the lawsuit filed by the New York Civil Liberties Union and Legal Services of NYC.

Donahue, 30, applied for benefits in July, after the coronavirus pandemic made it hard for the New York City law student to find stable work. Donahue identified as a male for the application, “but it just doesn’t feel as authentic to me as X.”

The lawsuit filed in state court in Manhattan names the agency commonly referred to as OTDA, along with the state health department and Gov. Andrew Cuomo. The lawsuit also names the New York City Department of Social Services, though it notes city officials have urged the state to update their system. There was no immediate comment from the Cuomo administration.

A spokesperson for the city’s Department of Social Services said the state controls the system and they continue to advocate for change.

“As we have said repeatedly over time, we continue to believe that the State’s delays, denials, and distractions from this matter are ultimately discriminatory and must be addressed, in line with the times,” Isaac McGinn said in an email.

New York is among at least 18 states that provide some legal recognition of nonbinary gender markers, according to the lawsuit. In addition to birth certificates, the state said in a November court filing it was modifying Department of Motor Vehicles computers to offer driver’s licenses with an X gender marker.