Lambda Legal Sues New York State For Its Refusal To Allow Nonbinary Gender Markers on Driver’s Licenses

Today Lambda Legal filed a lawsuit on behalf of Sander Saba, a nonbinary transgender New York resident who is seeking an accurate New York driver’s license that reflects their nonbinary gender identity. The lawsuit challenges New York State’s discriminatory policy that categorically prohibits nonbinary 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 nonbinary, 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 nonbinary 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 nonbinary and transgender people to discrimination, harassment, and violence. By prohibiting nonbinary 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 nonbinary 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 nonbinary 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 nonbinary and transgender people. New York City already changed its law in 2019 to allow nonbinary 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 nonbinary 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: https://www.lambdalegal.org/map/x-markers

Read more about Lambda Legal’s Saba v. Cuomo lawsuit here: https://www.lambdalegal.org/in-court/cases/saba-v-cuomo

Read the complaint of Saba v. Cuomo lawsuit here: https://www.lambdalegal.org/in-court/legal-docs/saba_ny_20200728_complaint