New York City’s Death Certificates Now Have a Nonbinary Option

Now you can die non-binary, just as you lived.

In the years since 2016, when an Oregon court granted the first gender change to something other than male or female in U.S. history, at least 16 states and a handful of cities have made it possible to legally identify as non-binary. But Americans who mark their gender as ‘X’ on driver’s licenses and birth certificates often face confusing roadblocks elsewhere; it’s not possible to acquire a non-binary passport, for example, and most of the time it’s not even possible to accurately enter your gender when booking a flight or renting a car. But New York City announced this week that it would close at least one of those gaps starting January 2, when the city will begin issuing death certificates with the non-binary option.

“Reforming our institutions to reflect the identities of the people we serve is essential to being an inclusive, equity-driven agency and city,” NYC Health Commissioner Oxiris Barbot said in a press release Tuesday. “We can honor how non-binary individuals lived by ensuring their death records accurately reflect their identities.”

New York City passed a law in 2018 adding an ‘X’ gender marker to birth certificates, and the city had issued the nation’s first intersex birth certificate in 2016. But as in other states, it took New York some time to catch up to the fact that non-binary people also die. Oregon issued the nation’s first gender change to non-binary in 2016, but it wasn’t until April 2018 that the state added the third gender ‘X’ marker to death records as well. And while an increasing number of Americans can now carry state ID cards and driver’s licenses with the ‘X’ marker, they still have to choose between “male” and “female” on a passport. Carrying identity documents with genders that don’t match can cause a slew of problems. Trans advocate Gillian Branstetter (formerly of the National Center for Trans Equality) told VICE on Thursday that people should think of identity documents as a form of free speech — and that being forced to carry inaccurate or mismatched documents is a kind of “compelled speech” on the behalf of the government.

“It's demeaning and insulting to force someone to carry papers inconsistent with who they are that could also open them up to harassment,” Branstetter said. “While updated policies like this are a critical step for a variety of reasons, they are also an important recognition of the liberty every person should have to speak for their own life and experience.”

Shortly after the first wave of state policies made legally identifying one’s gender as ‘other’ a possibility, non-binary Americans began to realize that most everyday systems still aren’t set up to include third gender options either. After non-binary reporter Kate Sosin discovered in November 2018 that major airlines failed to offer anything other than binary gender markers in flight booking menus, five airlines announced in February 2019 that they would add “unspecified” and “undisclosed” gender options. Similar corporate initiatives have focused on trans and non-binary inclusion through added gender categories (Facebook launched the trend with 51 gender options in 2014) or by making it possible to use a chosen name without a legal name change (Mastercard introduced the True Name credit card in June 2019).

But gender is a category included on countless forms, from car rentals to chiropractic offices, and newly legal non-binary people can find themselves in a quandary — forced to choose an often-mandatory gender that doesn’t match the one on their ID.

“Everything from employment to health to national, state, and government forms of identification to travel all require someone checking a box for gender/sex,” Nina Kossoff, creator of the non-binary health and wellness resource project Thems Health, told VICE on Wednesday. “A lack of consistency creates more gaps for someone to need to justify their gender in a current system that is still majority binary in its understanding of individuals.”

Branstetter said that while “businesses and federal agencies would be wise to follow the productive model set by the states in offering more options,” there’s also a question of why so many documents and systems require a gender entry at all.

When asked whether the new death certificate policy was brought in response to an event such as a legal challenge brought by the estate of a deceased non-binary person, Michael Lanza of the NYC Department of Health and Mental Hygiene told VICE the policy was just an effort to align death certificates with the city’s other non-binary identity documents. Brad Hoylman, the only out, LGBTQ member of the New York state senate, called the death certificate policy “an important way to preserve the dignity of our non-binary siblings after their deaths” in a statement Tuesday. Hoylman estimated that the policy could impact roughly 50,000 transgender and non-binary New York City residents, a portion of what the Williams Institute estimated is a statewide trans population of around 78,600.

Kossoff acknowledged that all of the state and corporate efforts to be inclusive of non-binary people are victories for the community, but said more is still needed to ensure equality.

“What we need is not only a consistent non-binary option on forms or documents that require a gender, we also need to build into that much broader understanding, acceptance, and respect of non-binary identities,” said Kossoff. “And the long-term commitment to get there, I think, provides longer-term room for improvement of the health and well-being of the non-binary community.”