For the first time, a pair of Vermont parents have secured a nonbinary gender marker on their child’s initial birth certificate.
The South Royalton Legal Clinic at Vermont Law and Graduate School spearheaded an appeal to the Vermont Department of Health, which had denied use of the nonbinary marker on an initial birth certificate, according to Meg York, lead attorney for the clinic’s LGBTQ+ Family Law Project. The clinic serves Vermonters who cannot afford legal counsel and those who need legal assistance.
“We felt that by telling people they have to choose one of the binary genders and then can later amend, it delegitimizes the nonbinary gender marker,” York said. “It implies that ‘M’ or ‘F’ are really the true genders.”
Last year, the passage of Act 88 streamlined the process by which Vermonters could amend their birth certificates to reflect their gender identities, including using a third gender marker, X. The law, championed by Rep. Taylor Small, P/D-Winooski, cut out doctors, judges and extensive documents from the process.
“Identity validation in and of itself saves lives,” Small said on the House floor in February 2022.
At the time, Vermont joined 14 other states and Washington, D.C., in allowing the amended nonbinary marker.
But before the South Royalton legal clinic’s recent appeal in probate court, Vermonters could only amend birth certificates to include an X, not use the X initially.
The change, York said, is in line with the clinic’s goal to make “the most lives livable.”
The nonbinary gender marker on initial birth certificates is important because it “acts as a placeholder until the child can identify with a gender on their own,” York said, and eliminates part of the battle that “transgender, gender nonconforming, gender nonbinary, gender fluid, gender queer, and other agender people go through to override or justify nonconformity with their original gender designation.”
Plus, the X marker may be more accurate and inclusive for intersex children, she added.
In 2021, the American Medical Association recommended removing sex designations from the public portion of birth certificates, suggesting the move would prevent discrimination.
Last year, the Biden administration announced it would give Americans the option of choosing the X gender label on their passports. Many areas of government are moving in the same direction, York said, noting, though, that the Social Security Administration does not yet provide a nonbinary gender option.
More than a dozen other states allow amended nonbinary birth certificates. Maine and New York City allow initial birth certificates to include a nonbinary marker.
York called Vermont’s health department “progressive.” Despite the roadblocks her clients faced in using an X on their child’s birth certificate, she said she believed the department “wanted to be able to do it. They just didn’t feel that they have the authority to do so.”
With the courts ruling in her client’s favor, York believes other Vermonters can now follow suit.
“It’s really an important option to have from day one.”
