Real ID Act and Intersex Families

Classification: News

It’s not uncommon for the law to assume that everyone is born into two neat sex categories (male and female) and that everyone stays in the category in which s/he was first placed. Not so! It is inevitable that some people born intersex will tell us that the sex/gender category to which they were assigned was incorrect.

Unfortunately, it looks like U.S. legislatures are making it harder and harder for people with intersex to assume the legal sex/gender category that they personally identify with. For one example of legislation that can cause hardship to people with intersex, and to their families, read what our friend and ally Lisa Lees reports on “The Real ID Act of 2005”:

The “Real ID Act of 2005” enacted on May 10, 2005, as part of Public Law 109-13, gives states three years to implement what amounts to a uniform national machine-readable ID card (drivers license or personal ID) and a corresponding ID database.

The strict requirements of this act for verifying aspects of a person’s identity, and the requirement that copies of source documents be kept for an extended time, may cause problems for people whose papers are not “all in order” when it comes to sex or gender.

As usual when talking legally about sex, the language of the act is imprecise. The act states that the ID card is to indicate a person’s ‘gender’. Though it specifies in detail how other aspects of a person’s identity (e.g., name, date of birth, citizenship) are to be verified, the act does not specify how a person’s gender is to be verified. (The word ‘gender’ appears once and the word ‘sex’ does not appear at all in P.L. 109-13.)

To verify legal name, date of birth and citizenship, most people will need to present a birth certificate. One can assume that the birth certificate will also be used to verify gender, though the act does not outline a procedure for doing so.

The act specifies that paper and electronic copies of the documents used to verify the ID card are to be retained for a period of 7 (paper) or 10 (digital) years. States are further required to participate in linking their ID databases with those of other states to form a national database.

Some people (intersex, transgender, transsexual) who have achieved comfortable gender IDs that differ from the ones assigned to them at birth, and who have not had to present a birth certificate for many years, may have problems renewing ID because of this act. Many states have in the past had rather loose requirements for establishing the gender marker on ID cards. Issues relating to court-ordered or common law name changes that may not be reflected on birth certificates are also not addressed by the act.

Until states begin implementing the requirements of this act it will not be clear what action will be taken when a birth certificate sex marker does not match a current ID card gender marker. It is not hard to imagine that, at least in the states which have enacted some form of ‘defense of marriage act’ that the discrepancy will not be allowed to persist.

People who have a personal interest in these issues would be well-advised to pay attention to what happens as states work on changing their procedures to comply with the Real ID Act of 2005.

Lisa Lees