Colorado becomes fifth state to allow ‘X’ gender marker on driver’s licenses

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Carter Stepanovsky of Lyons
Angela K. Evans | Boulder Weekly

For Carter Stepanovsky of Lyons, the process of changing their name to reflect their gender identity has been both emotionally and financially exhausting. Plus, it’s simply been cumbersome, an intricate process of dependencies, certain steps required before the next can be achieved. Identifying as transgender non-binary, Stepanovsky (who, as a matter of full disclosure, is also a personal friend) began the process in 2014. Starting with visits to a mental health provider to get a physician-signed letter, they had to buy ads in the paper to publish notice of their intended change, go to court and re-explain themselves to various government officials and employees. After all was said and done, by 2016 Stepanovsky had a new social security card, driver’s license, passport, updated credit cards and bank statements, but one thing still wasn’t right: They still had to designate a gender marker inconsistent with their identity.

“My gender marker is still female because I’m non-binary, because it wasn’t an option,” Stepanovsky says.

Or at least it wasn’t, until now.

On Nov. 8 the Colorado Department of Revenue (DOR), which encompasses the Division of Motor Vehicles (DMV), announced an emergency rule giving people the option to designate “X” as their gender marker on state-issued driver’s licenses and identification cards in lieu of male or female. Colorado follows California, Oregon, Minnesota, Maine and Washington D.C. in offering a non-binary identifier on driver’s licenses.

“I feel validated,” says Stepanovsky, who moved to Boulder County in 2002. “It’s really exciting to see my own state recognize my existence.”

Saoirse Maloney, who’s from Gold Hill and now lives in Boulder, was assigned male at birth but identifies as non-binary with a feminine self-expression. Maloney has yet to change their gender marker because they’ve always felt female is just as disingenuous as male. Having the third option identifier is a huge opportunity, they say.

“It’s a way of being recognized more as my authentic self,” Maloney says. “And not having to pretend to be a trans woman when I’m not.”

Prompted, in part, by two legal cases where the courts ruled in favor of individuals seeking to change their gender identity on official documents, the DOR says in its announcement the new rule is necessary for “the preservation of public health, safety and welfare.”  The agency has been discussing the change for more than a year.

“Part of the reasoning for the emergency rule was to make sure that we were minimizing the Department of Revenue’s legal exposure and to bring our policies [into line] with the recent court cases,” says Lawrence Pacheco, director of communications with the DOR. “But it’s also important that Coloradans have a correct sex identifier on their driver’s license and identification cards that reflects their true lived experience.”

The emergency ruling is being hailed by the LGBTQ community and advocates as a significant and necessary step toward inclusion, a validation of identity that has long been missing in statewide systems.

“This is a really important recognition from the government,” says Michal Duffy (they/them/theirs), education and program manager at Out Boulder. “It actually is powerful to have that recognition.”

Advocates hope the new gender identifier will help track transgender and non-binary individuals, generating the type of population data that could benefit the LGBTQ community. According to a study out of UCLA, about 1.4 million people in the country and an estimated 20,000 adults in Colorado identify as transgender, which includes both people who identify as a different gender than the one assigned at birth as well as non-binary and gender non-conforming folks. Because the LGBTQ population has never before been tracked in any meaningful way — sexual orientation, once again, will not be part of the 2020 census, regardless of requests to do so from four Obama-era federal agencies, including the Justice Department — reliable national data still isn’t available.

Roughly half of folks who utilize Out Boulder County’s services are transgender or non-binary, says Duffy, but firm statistics are difficult to track. The organization is currently analyzing data from an LGBTQ assessment survey it completed in October, and Executive Director Mardi Moore is hoping to know more about population sizes in Boulder County relatively soon.

“Being counted is important for all kinds of reasons,” Moore says. “Not only does it hurt not to be counted in the census and to have your identity and orientation wiped out, but what hurts in a community way is that resources don’t follow. Boulder County provides funding to us, and some other government agencies, and the more people we know of who are in need of programs and services the better chance we have of securing additional funding for programming.”

With an X gender marker, Colorado driver’s licenses and identification cards will still be compliant with the Real ID Act, which dictates minimum security standards for IDs to access federal facilities, enter nuclear power plants and board federally regulated commercial aircraft. The only fee associated with the change comes in getting a new driver’s license card (currently $28), not to actually process the gender marker change in the DMV system.

The emergency ruling goes into effect on Nov. 30, when people will be able to access the sex designation change form, including the option to use “X,” on the DMV website, and be able to obtain new licenses and identification cards. In order to qualify, individuals must have their medical or behavioral health care provider sign the form, which has raised concerns within the LGBTQ community.

“It [suggests] that this is a diagnosable problem rather than just an example of diversity of our species,” Duffy says. “Ideally we can eventually move away from having that letter, but if that’s the compromise for now, I’ll take that.”

Pacheco says the physician-signed form is consistent with current rules for people changing their gender from male to female or female to male, but the emergency rule does not require “an individual to undergo any specific surgery, treatment or behavioral therapy,” he says. “Also, under the emergency rule the medical or behavioral health provider may be licensed outside of the state of Colorado.”

The emergency ruling is effective for 120 days while DOR undergoes a permanent rulemaking process with stakeholder meetings, public comment and a public hearing.

“Coloradans are free to submit comments about any provision in the emergency rule or testify at a public hearing on the rule which will be announced at a later date,” Pacheco says, indicating it will most likely take place sometime in December.

As the Trump administration has repeatedly threatened transgender protections, freedoms and services, there are also concerns about the dissonance between state and federal gender identifier policies.

Pacheco assures nothing done at the federal level will affect the DOR’s process in adding a third gender identifier on state-issued identification.

“It might even make it more urgent for us to act to ensure that people here in the state have a sex identifier that reflects their lives,” he says.

Stepanovsky, for one, is optimistic, hoping the new DOR policy will trigger a cascade effect, whereby other identifying documents like passports and birth certificates can be changed to reflect non-binary identities.

On international passports, listing a sex identifier is required by the U.N.’s International Civil Aviation organization, which sets requirements for travel documents. However, using an X is already acceptable — among others, Canada, Malta, New Zealand and Pakistan allow its use. In the U.S., the issue is currently making its way through courts, with a recent ruling in favor of intersex Fort Collins resident Dana Zzyym. Additionally, the Colorado Department of Public Health and Environment is currently considering a rule to allow intersex as an option on Colorado birth certificates.

While opportunities for more progress remain, the DOR’s emergency ruling is a significant development toward broader cultural and systematic recognition and equality.

“This feels like a deliberate step for inclusion and visibility, which I feel very grateful for,” Stepanovsky says. “It’s breaking down barriers around otherness.”