New York State is Not Issuing “X” Gender Markers (Yet)

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November 25, 2020

Today Lambda Legal filed its response to the State of New York’s Motion to Dismiss its lawsuit on behalf of Sander Saba, a nonbinary transgender New York resident seeking an accurate New York driver’s license that reflects their nonbinary gender identity. The lawsuit challenges New York State’s ongoing discriminatory policy that categorically prohibits nonbinary people from obtaining an accurate driver’s license, instead forcing them to choose either “male” or “female.” Saba, a 25-year-old New York University Law School graduate, is seeking an accurate driver’s license with an “X” marker.

On October 30, 2020, in response to our lawsuit, the State filed a motion to dismiss, alleging that it will change the policy at some unconfirmed time in the future. While this is a welcomed and positive development, the harms to Mx. Saba and other nonbinary New Yorkers continue as the State drags its feet and tells them to wait. Since the filing of the lawsuit in late July, Mx. Saba’s Pennsylvania driver’s license with an accurate “X” gender marker on it has expired, leaving them without an accurate and valid state ID that they can use for day-to-day necessities.

The State also alleged that it has offered Mx. Saba a temporary solution to address its failure. But a solution it is not. As Mx. Saba explained in their filing today: “As I understand the offer the DMV made to me after I filed this lawsuit, it would assign to me an inaccurate binary gender designation in order to generate my motorist identification number within its system, but manually replace that gender designation in the driver’s license it prints with an “X” gender marker. This temporary proposal not only continues to cause the harms explained in my complaint, but exacerbates them.”

Lambda Legal continues to litigate on Mx. Saba’s behalf so that all nonbinary New Yorkers can have accurate state identification to which they have a right, without undue delay.