Trans Rights and Official Identity

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For individuals whose identities fall outside of socially accepted norms, life can be difficult; for those whose identities fall outside of legally recognized identity options, sometimes even more so. The recognition of who we are as individuals is widely viewed as a fundamental human right…at least in the abstract. Most leading international organizations, including the United Nations, as well as most national governments, hold identity recognition as an enshrined principle of their founding charters. A closer look at that abstract principle, however, reveals more discriminatory nuances in who is allowed to have what forms of identity recognized and under what conditions. In other words, while many tout their strong support for identity recognition, nearly as many hold reservations about which identities they are willing to recognize.

It is important from the beginning to make a clear distinction between personal identity, social identity, and official identity. One’s personal identity is how they recognize themselves. This identity may or may not be shared with others. Social identity is how one is recognized by the broader community. This may or may not align with one’s personal identity and, in many cases, may vary depending on the social context and actors involved. Official identity is one that is granted by a legal or rule-making institution. It is a very specific form of identity that often involves bureaucratic processes, government regulations, and “expert” recognition and is usually recognized by some form of legal documentation, including birth and death certificates, driver’s licenses, census questionnaires, tax forms, marriage certificates, and passports.

Official identity is a particularly powerful form of recognition, as it sets the boundaries for what rights and responsibilities an individual does and, just as importantly, does not have. For example, many social rights and responsibilities, and even sanctions and punishments, are dependent on factors that are often legally determined, granted, and administrated, including age (e.g. purchasing alcohol, driving a vehicle, getting married), sex (e.g. military service, both forced and voluntary, sex-segregated imprisonment), religion (e.g. the ability to enter certain spaces and buildings), and legal residence (e.g. paying taxes, the ability to travel).

Further, many forms of official identity are dependent on the recognition of other forms of official identity. For example, where marriage is restricted to a two-person union between one male and one female, official recognition as married (which, itself, has broader implications for other identities including tax filing status) is dependent upon entering a union with someone who holds an official identity of the “opposite” sex. In short, official identity determines who one is, and who one can become, in the eyes of the law. More than just personal or social recognition then, official identity marks a point where one can gain or lose access to rights, responsibilities, and privileges or be subject to specific sanctions and punishments.

 

The Consequences of (Official) Trans Identity

The recognition of trans[1] identity is one that is dependent on a variety of social, cultural, historical, and legal factors. A medical determination is often dependent on biological factors, including chromosomal make-up, hormonal levels, and/or the physical structure of reproductive genitalia. A psychiatric determination is often dependent upon an “expert” diagnosis of a mental condition (most typically gender identity disorder, gender dysphoria, or gender incongruence). A legal perspective is more complicated, still, in that considerations vary widely by country and municipality (which are not always aligned). Even more complicated are the myriad of ways that trans people, themselves, recognize their own identities.

For many trans people in many jurisdictions, official identity is often restricted due to a lack of legally recognized options or difficulties in the ability to change one’s official identity, even between options that are legally recognized. For example, most countries only allow individuals to choose between “male” and “female” as an officially recognized sex identity. There are exceptions to this rule, for example, in Pakistan, Bangladesh, Nepal, or some states in the USA, among others, where a third sex/gender identity option is available on some official documents, but they are, to date, few and far between. This puts those whose own identity does not align with an officially recognized option in a particularly precarious position. This precarity can lead to difficulty in securing other social rights, including marriage, employment, and travel and can even become physically dangerous, especially when one’s physical presentation does not match expectations associated with their legally documented sex/gender.

For others, the difficulty is less about a lack of available fitting options and more about the difficulties often associated with being recognized as an existing legal option other than the one currently granted to them. While there are a growing number of countries that allow individuals to change their legally recognized sex, including on their birth certificates, the requirements to do so are highly varied and often unattainable, for many. For example, a number of countries (e.g. the UK, Brazil) allow for changes in officially recognized sex only after an individual goes through a lengthy, and often expensive, evaluation period by “experts”. They often have to receive an official diagnosis of a mental illness, plead their case before judicial magistrates, and undergo expensive medical procedures, making the humiliation and financial expense unbearable for many who are often already in precarious situations. The good news for advocates of the ability to change/correct one’s official sex/gender identity is that a growing number of countries (including Argentina and Malta) have moved to a more humane process whereby individuals need only to self-declare their identity in order to have it recognized on official levels[2].

The patchwork of often conflicting legal recognitions makes official recognition of identity especially complicated for many trans people. Even if a trans individual can have their identity recognized in one legal geographic jurisdiction (be that identity trans, a sex different from the one on their birth certificate, or something else), that does not mean that it will necessarily also be recognized in other legal geographic jurisdictions. Official identity recognition often varies on a state, national, and international level, as do the means of being granted such recognition. That complication/contradiction can also apply within single legal geographic entities. For example, a growing number of universities now recognize people’s preferred identities, even if those are not legally aligned with identities recognized by the wider municipality. One could have a legal identity of male on their birth certificate, trans on their official educational transcripts, female on their state issued drivers license, and male again on their national passport.

 

Why Official Identity Recognition Matters

The consequences of having one’s official identity recognized are multiple. For those who identify as female, they might still be forced into military conscription if their birth certificates indicate that they were medically assigned as male at birth. For those wishing to get married, the legal sex of those entering into the union is a factor in most jurisdictions. Adoption is also often made complicated by the legal sex of the perspective parent(s). Further, although this article is dealing largely with legal implications, it is important to recognize the mental health impact of not having one’s self recognized in the eyes of the law and, even if such recognition is possible, having to navigate the burdens of doing so.

Transgression of one’s official identity can be particularly punitive for trans individuals. There are an unfortunate number of documented cases of medical personnel refusing to treat individuals whose gender presentation does not match their legal sex, sometimes even resulting in death. Instances of harassment, abuse, and false imprisonment by police are also well documented against such individuals. Discrimination in employment, housing, and education is also common. In the extreme, some countries even penalize individuals who identify or present a sex or gender other than that medically assigned to them and legally recognized with imprisonment, torture, or death.

Many identities that appear on our legal documents are self-reported – height, weight, eye color, hair color – and are presumably of little consequence to the rights we can access and sanctions we can avoid. Others, including our sex, require recognition and conferral by “experts” in most jurisdictions. Those are, also, most often the identities that present both the greatest opportunities and the most significant social barriers to how we can live our lives. While we can easily change our hair and eye color to match our desired identities, including on many legal documents, it is often more difficult to do so with our sex. But why?

One’s hair color is likely to change over the course of their lifetime. Many of us have entirely different hair colors than we did when we were born, and most of our hair will turn increasingly gray in older age. We have no problem changing that status on our driver’s license. So why do we feel so differently about changing our sex on the same document? One might argue that our sex is more fundamental to who we are as human beings, although individuals are arguably far more recognizable by their hair color than they are by their sex (one rarely looks at someone and isn’t sure of their hair color, but many of us have been unsure of someone’s sex/gender, or at least their presented sex/gender). Perhaps the question isn’t so much about essential factors of identity as it is about what identities we consider essential.

The question of official recognition of trans identity is important not just as a question of fundamental human rights and recognition in and of itself, but also as a broader examination of which identities matter, and why, and to whom. Religion, politics, and, most crucially for this article, legal institutions all have an answer to that question, but are they the “right” answers? A truly humanist perspective would argue that everyone should be granted the same rights, and even face the same sanctions, regardless of their individual identity; that how we identify individually, socially, and legally shouldn’t be forced into separate boxes and shouldn’t come with differential consequences.

Granting official recognition to individuals based on their own individual and/or social identities would, arguably, result in little to no consequence to the broader social order. It would be difficult to make the case that our own individual rights are directly impacted by the ability of others to be recognized for who they are. What is of consequence is what happens to such individuals when we do not allow them such rights. In sum, perhaps it is time that we own up to and deliver on our oft-avowed commitment to recognize individuals for who they are as a fundamental human right.

[1] The term “trans” will be used throughout this article as an imperfect umbrella term to refer to individuals whose current sex/gender identity does not match the social expectations of their medically assigned sex at birth. This group could include, but is not limited to, those who identify as transgender, transsexual, genderqueer, third gender, or gender non-binary, among many other possible identities that could be seen as gender non-conforming.

[2] For more on this, see: Ryan, J. Michael. 2018. “Gender Identity Laws: The legal status of global sex/gender identity recognition,” LGBTQ Policy Journal, Vol VIII,  Cambridge, MA: Harvard Kennedy School: 3-16.

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