While you can count on one hand the number of times it has happened, Utah has joined the ranks of states issuing gender-neutral markers on their driver’s licenses and state IDs, but for transgender, nonbinary, and intersex people, they’re still hard to get.
Since September of last year, Utah has been quietly issuing “X” markers on the identification cards, and it has been available on birth certificates since 2017. Only two licenses have been issued with the “X” marker since September, according to the public affairs director for the state Department of Public Safety, Marissa Cote.
The “X” marker is used for those who identify as neither male nor female.
The state issued its first nonbinary driver license to Mel Van De Graaff in September 2018, making Utah one of eight states, along with Washington, D.C., to offer a third option on driver’s licenses and state-issued ID cards. The other states include Arkansas, California, Colorado, Indiana, Maine, Minnesota, and Oregon. Vermont recently announced plans to roll out a third gender option sometime this summer.
Gender-neutral birth certificates are now permitted in New York City and several states, including California, New Jersey, Oregon, Washington, and Nevada (where Van De Graaff was issued theirs). The National Center for Transgender Equality includes Idaho and Montana on this list, though NBC News has not yet independently confirmed it.
The milestone in Utah went largely unnoticed by the national media. Even the Movement Advancement Project, an LGBTQ think tank that tracks changes in policy and legislation for sexual and gender minorities across the U.S., does not include Utah among its list of states with nonbinary ID options.
That may be, in part, because the policy in the state remains murky, according to Van De Graaff.
“Because it’s up to the judge, a lot of nonbinary people just don’t try and get their markers changed,” De Graaff said. “A lot of them don’t have the monetary means to do so. I really believe the only reason I got mine granted was because I got an attorney, and attorneys are not cheap.”
The Utah Division of Motor Vehicles determines the gender marker listed on an applicant’s identification either by their birth certificate or a valid U.S. passport. As Cote explained, the Utah DMV’s policy “has always been to base the gender notation off of an acceptable primary identification document which includes a gender notation.”
Utah has granted just two nonbinary birth certificates since 2017, said Terry Lucherini, acting bureau director of the Utah Vital Records and Statistics. He also said these documents are granted by “court order only.”
“That’s the only way we change the gender on a birth certificate,” Lucherini told NBC News.
To date, the U.S. has never issued a nonbinary passport. Because of that, trans and nonbinary people need to rely on birth certificates to update their IDs in Utah; but even getting those updated can be exceedingly difficult, advocates say.
When Van de Graaff started pursuing a new gender marker in November 2017, they claimed no one they knew had “heard of anybody in Utah having a gender “X” license on documentation of any kind.” Van de Graaff continued that the common thinking was, “This can’t be done, because it hasn’t been done.”
Because Utah lacks a clear statewide policy on changing one’s name and gender on vital records, like birth certificates, whether an individual successfully obtains a court order is largely up to the determination of local judges – who often widely vary in their decisions. This applies not only to those looking for a gender-neutral “X” marker, but also to those looking to update their documents from “F” to “M” or vice versa.
Two years ago, Judge Bruce C. Lubeck of Utah’s 3rd Judicial District Court reportedly told 17-year-old transgender male Lex Rigby that Lubeck could not “in good conscience” allow the gender marker on Rigby’s birth certificate to be updated from “F” to “M”.
Lubeck told Rigby, “I seriously hope this won’t offend you.”