Lambda Legal sues New York state for refusing non-binary gender markers on driver's license

Today Lambda Legal filed a lawsuit on behalf of Sander Saba, a non-binary transgender New York resident who is seeking an accurate New York driver’s license that reflects their non-binary gender identity. The lawsuit challenges New York State’s discriminatory policy that categorically prohibits non-binary people from obtaining an accurate driver’s license that reflects their gender identity, instead forcing them to choose either “male” or “female.” Saba, a 25-year-old New York University Law School graduate, is seeking an accurate driver’s license with an “X” marker. 


“My request is simple – to have a driver’s license that matches my identity,” said Saba, who uses they/them pronouns. “It’s demeaning to be forced to carry identity documentation that is inconsistent with my identity. The State of New York should respect who I am, recognize me as non-binary, and issue me an accurate driver’s license.” 

Saba already has two identity documents with accurate “X” markers – their New York City birth certificate and an earlier driver’s license issued by the Commonwealth of Pennsylvania. They need an accurate New York driver’s license to ensure they are abiding by New York State law requiring its residents to exchange out-of-state license for a New York one and have fully congruent documentation.

“By prohibiting non-binary people from obtaining a driver’s license with an accurate gender marker, the State of New York is depriving them of an essential government identity document and compelling them to carry untruthful documentation about who they are,” said Carl Charles, Staff Attorney at Lambda Legal. “Studies show that having inaccurate identification documents exposes non-binary and transgender people to discrimination, harassment, and violence. By prohibiting non-binary people from having accurate driver’s licenses, one of the most commonly used and accessible forms of identity documents, New York is limiting their opportunities to fully participate in society and causing ongoing harm to their well-being."

“Possessing accurate identification documents is essential to everyone’s health, economic and social well-being, but particularly for marginalized communities such as non-binary and LGBTQ people,” said Omar Gonzalez-Pagan, Senior Attorney at Lambda Legal. “A driver’s license is an especially ubiquitous identification document used to verify an individual’s identity in almost every setting - including access to health care, hospitals, employment, education, housing, banking services, travel, and other government services. Denying non-binary people documentation congruent with their gender identity undermines their ability to fully participate in all aspects of life.”

There has been some progress already within the state to make policies more inclusive for non-binary and transgender people. New York City already changed its law in 2019 to allow non-binary people to correct the gender marker on their birth certificates. Furthermore, New York State also already allows transgender adults to correct the gender marker on their birth certificates, and just this year as a result of an earlier Lambda Legal lawsuit implemented a new policy to allow those changes for transgender minors. Last month, in response to another lawsuit, New York State’s Department of Health began to allow non-binary people to obtain birth certificates with a gender-neutral marker. 

Handling the case on behalf of Lambda Legal are Staff Attorney Carl Charles and Senior Attorney Omar Gonzalez-Pagan and lawyers from the law firm O’Melveny & Myers LLP.

Explore Lambda Legal’s “X” gender marker map:

Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and everyone living with HIV through impact litigation, education and public policy work.

The Gayly. 7/28/2020 @ 3:16 p.m. CST.