Starting this month, use of X as sex identifier allowed
Colorado residents who do not identify as male or female will be allowed to choose X as the symbol to represent their gender on their driver’s licenses when an emergency rule goes into effect this month.
The change comes as state officials continue to grapple with policies that allow people who identify differently than their sex assigned at birth to alter their official documents, which LGBTQ advocates say is crucial for transgender and nonbinary people’s daily lives.
The Colorado Department of Revenue, which oversees the Division of Motor Vehicles, decided to make the change, effective Nov. 30, after two court cases in which judges found in favor of Colorado people attempting to change their sex on government identification.
The department needed to
adopt a policy in line with those decisions to avoid the possibility of being sued, the department’s executive director, Michael Hartman, said in an exclusive interview with The Denver Post.
“This is an important step for the state of Colorado that the state documents reflect our values,” Hartman said. “People are people no matter their sex identification.”
The change not only will be personally affirming to people who identify other than male or female, it will reduce the discrimination nonbinary people face when their documents don’t match their gender expression, said Daniel Ramos, executive director of One Colorado, a statewide LGBTQ advocacy organization. When the documents don’t match, nonbinary people are often forced to explain their identities or can be denied service, he said.
“It’s an incredibly affirming process when a person’s identification reflects their name and their gender,” Ramos said. “They no longer have the fear or anxiety of being rejected by a clerk or teller or anybody else.”
It’s difficult to know how many Colorado residents identify as nonbinary, which includes people who identify as no gender, more than one gender or something other than male or female, Ramos said. The change to driver’s licences could help provide a better estimate, he added.
A study by the Williams Institute at the UCLA School of Law estimated that about 20,850 adults in Colorado identify as transgender, an umbrella term for those who identify differently than their sex assigned at birth which includes nonbinary people.
The addition of X to driver’s licenses will be a fairly simple operational change and won’t cost taxpayers any money, Hartman said.
“It’s a pretty quick update to the system,” Hartman said.
Discussions about adding a third option to driver’s licenses have been ongoing for years in the Joint ID Task Force created in 2013 by Gov. John Hickenlooper, Hartman said. But the department decided to move forward with the change af- ter the U.S. District Court for Colorado ruled in September that the U.S. Department of State had to issue a passport to intersex Colorado resident Dana Zzyym even if they refused to choose male or female on the application. Zzyym requested to use X on their passport, but was denied.
Hartman also cited proposed changes the Colorado Department of Public Health and Environment could make to policies about changing birth certificates to represent a person’s sex identity that would include an X option as well. The changes followed the settlement of a lawsuit filed against the department by a minor who wished to change the sex listed on a birth certificate but had not undergone sex reassignment surgeries, as current policy requires.
The Colorado Board of Health will vote on proposals to add a third gender option to birth certificates and dropping the surgery requirement on Dec. 19, Alex Quintana, state registrar and director of vital records, said in an email. The changes would go into effect at the beginning of 2019 if the board votes in their favor and legislative channels approve the change, he said.
In wake of the court cases, the Division of Motor Vehicles needed to make a change to avoid a lawsuit, Hartman said.
“Someone in the community might take that step if we didn’t take proactive steps,” Hartman said.
Applicants who want to use the X on their driver’s licenses will have to complete a form and get a signature from a medical provider or mental health counselor, but are not required to be undergoing any hormonal treatment or surgeries. The new licenses would be fully compliant with the federal REAL ID Act that sets standards for government-issued identifications and would be valid in other states and in airports, Hartman said.
Four other states — California, Oregon, Minnesota, Maine — and Washington, D.C., have already adopted a nonbinary identifier on their driver’s licenses.
Oregon was the first to offer a third sex option when its Transportation Commission approved a rule change in June 2017. The change turned out to be very simple, said David House, spokesman for the Oregon Division of Motor Vehicles. As of Nov. 1, about 2,091 people in Oregon have a driver’s license with an X, he said.
House said he wasn’t aware of any people who use X on their licenses who had difficulties traveling or using the ID outside the state.
Oregon transportation officials briefly considered removing sex designations from driver’s licenses entirely, House said, but found that the Real ID Act requires that a sex be recorded though it doesn’t specify how. In contrast to Colorado, Oregon doesn’t require any certification from a medical provider for those who want to use X — people simply have to choose the option.
“We don’t weigh people. We don’t measure height,” House said. “You selfcertify that.”
State officials received minimal pushback to the change, he said. Only 12 of 83 people who submitted written or oral comments during the approval process opposed the change. Since the rule went into effect July 1, 2017, House has received only a few phone calls about the issue.
“It’s pretty much dropped off people’s radar,” he said.
Once the Colorado emergency rule goes into effect, officials will begin the process of making it permanent. The emergency rule is effective for 120 days, Hartman said, though he could readopt it if the time limit expires before a permanent rule is made. Colorado legislators do not need to approve the change, he said.
The Department of Revenue will hold public comment on the proposed change, though that meeting hadn’t been scheduled as of Wednesday. People can also submit written comments via email. Department officials have already contacted law enforcement, who said the change wouldn’t affect their ability to investigate crimes, Hartman said.
So far, he hadn’t heard any criticism of the plan, though it had not yet been publicized outside the ID task force.
“When it comes to rule making, we have a really significant focus on hearing from all different viewpoints,” Hartman said.