The History of the X Passport Marker

Six years ago today, on Intersex Awareness Day 2015, our Associate Director Dana Zzyym filed their groundbreaking lawsuit for a US passport with an “X” sex /gender marker.  In the years since, three courts have ruled that it is unconstitutional for the State Department to deny Zzyym a passport with an alternate sex marker as they are neither male nor female (the State Department, however,  has yet to issue the passport). Additionally, twenty-three US states have since enacted legislation offering an X sex/gender option on state IDs. Still, as many are confused about the X and what it represents, we offer this primer on its history and meaning.

The X marker dates back to the 1940’s

As detailed by intersex activist Gina Wilson, founder and former director of OII Australia (now Intersex Human Rights Australia), the X was not created by intersex or trans people.

“Following the Second World War, the International Civil Aviation Organisation (ICAO) was delegated, by the United Nations, the responsibility for overseeing passports. … It was not always possible to issue passports in those circumstances on a face-to-face basis so documents were often drawn up in the absence of the applicant. Because of difficulties with languages, information supplied did not always make it clear if the applicant was male or female and names could not be relied on to clarify the situation. To remedy this, ICAO allowed a designator – X – when sex was “unknown.” 

Intersex people pioneered today’s use of the X almost 20 years ago

The first person to use the passport X marker to be recognized as neither male nor female was intersex Australian Alex MacFarlane, in 2003. After months of MacFarlane requesting to  be accurately identified as intersex (MacFarlane has the chromosomal intersex variation 47xxy), Australian officals decided to amend their M/F sex system.  An X was used because it is the only other sex category allowed under ICAO guidelines for machine-readable passports.

As MacFarlane shared with the press at the time:  “Intersex individuals should not have to break the law, by pretending to be male or female, in order to vote, marry, hold a licence, or own property.”

Intersex activists intentionally avoided an “Intersex” sex marker –for good reason

Early X passports were available only to the few Australians who possessed birth certificates that indicated “sex not specified,” which were only issued by state of Victoria when original birth notification documentation indicated uncertainty about the child’s sex of the child. So in 2011, at the request of intersex and trans activists, Australia passed legislation expanding access by allowing intersex citizens and citizens with non-binary gender identities to obtain passports with an X marker — representing “Indeterminate,” The use of “Indeterminate” instead of “Intersex,” and the inclusion of representation for gender identity, was intentional, for reasons outlined below.

“The creation of any new category to be designated intersex poses several problems. First of all, there is no firm definition of intersex. Definitions are constructed in relation to medical norms that stigmatise particular kinds of bodies. … Secondly, intersex people are already assigned female or male, and most are raised and identify as women or men. To construct a new category called intersex unavoidably calls into question their sex assignments and gender identities, and suggests that they are not valid or correct. This is not acceptable. … We base our legal arguments on the right of every person to determine their own identity, in the hope that eventually there will be no attempt to impose legal sex categories on anyone.” 

Intersex organizations collectively adopted the “non-intersex-specific” approach to third sex/gender markers — almost ten years ago

In 2013, activists from thirty organizations around the world came together in Malta for the 3rd International Intersex Forum, including our founding director Hida Viloria (one of three selected intersex co-organizers of the Forum, including New Zealander Mani Mitchell and Argentinian Mauro Cabral), and representatives from fellow US intersex organizations InterACT and Intersex Justice Project.  We agreed it is the best, most inclusive approach.

“All adults and capable minors should be able to choose between female (F), male (M), non-binary or multiple options. In the future, as with race or religion, sex or gender should not be a category on birth certificates or identification documents for anybody.”

The X marker is found in the “sex” field but… 

The X marker is found in the “Sex” field on passports, making it a “sex marker.” However, since the 1970’s, in the US (and most of the English speaking world), the word “gender” has commonly replaced the word “sex” when referring to physical/biological sex.  So you’ll often see the “X” (as well as “F” and “M”) referred to as “gender markers.” In practice and law however, F and M markers are actually “sex/gender” markers as they represent both sex and gender/gender identity–and have since they first came into use. We refer to the fact that visible “gender,” not  actual biological “sex,” has historically been used to identify many intersex people’s “sex” on birth certificates and other IDs, and contnues to be. Gender/gender identity has also been used more recently to identify “sex” on trans citizens’ IDs. The new X, like F and M markers, represents both sex and gender, as it should.

The US X marker is for anyone who wants to opt out of binary sex or gender markers 

The press is still quite unfamilair, as a whole, with the existence of intersex people, and has sometimes reported that the X marker pertains only to gender identiy. This is false, as discussed. However, the inaccurate press coverage has led some to believe that only intersex people who have non-binary gender identities can be represented by the X, which is also false.

The US passport X marker was sought by and for intersex people, regardless of gender identity, in order to legally establish that male and fenale are not, as often claimed, the only two categories of sex. However, in keeping with previous legal precedent around F and M markers, with international intersex policy goals, and with our mission of inclusion and equality for all,  it also available for people whose gender identity is non-binary. We recognize that gender identity is a central component to sex/gender markers for many. Therefore some intersex people will want an X, and some will continue using F or M markers. We support and celebrate all these choices as intersex people have had far too many of them made for us in the past.

Links:

• https://www.lambdalegal.org/blog/20151026_zzyym-intersex-denied-passport
• https://ihra.org.au/14887/gina-wilson-response-dreger-passports/
• https://qnews.com.au/x-marks-the-spot-for-the-first-intersex-issued-passport-alex-macfarlane/
• https://www.smh.com.au/world/un-welcomes-aust-passport-changes-20110916-1kee2.html
• https://oii.org.au/18064/on-a-third-sex/
• https://en.wikipedia.org/wiki/Malta_declaration_(International_Intersex_Forum)