It’s been nearly four years since an Illinois law opened the door for nonbinary residents to mark “X” for their gender on driver’s licenses and other state IDs, but the seemingly simple change has yet to take effect in the face of challenges it presents to law enforcement and the health care industry.
The delay was not unexpected — the Illinois secretary of state’s office said at the time the measure took effect that it would need until 2024 to accommodate the additional gender marker on IDs. But while the office now says it’s “ready to launch,” other entities affected by the change have expressed the need for more time, putting in question when it will actually occur.
Supporters of the law expressed frustration over the long rollout period and questioned why agencies such as the Illinois State Police had not been better prepared.
“These agencies who are coming in with ninth-hour complaints were well aware of this bill when it was passed and should’ve been prepared to implement it all along, and so they need to be entering hyper speed and getting prepared if they have not been doing the work all along,” said Rep. Anne Stava-Murray, a Naperville Democrat who sponsored the gender marker legislation in 2019.
For some, the issue is more urgent than ever as many in the LGBTQ+ community feel their rights have come under attack nationally amid an increasingly polarized political environment.
Avi Rudnick, an attorney for the Transformative Justice Law Project of Illinois, believes the lack of preparedness by various entities throughout the state reflects an attitude that policy changes tailored for marginalized populations, such as nonbinary and other LGBTQ+ people, is a low priority.
“This is just another example of structural transphobia,” said Rudnick, who identifies as a trans masculine nonbinary person. “I think people just wear blinders and they don’t want to accept that there’s a lot of people out there who are moving toward a rejection of the gender binary.”
When the gender marker legislation was passed in 2019, then-Secretary of State Jesse White’s administration was about a year into a six-year contract with a card vendor that was helping the office implement its REAL ID program. The office said the change couldn’t be made until the contract expired.
The contract was initially set to expire at the end of 2023 but was extended under White until about 2026, the office said. Secretary of State Alexi Giannoulias, who started in January, heard concerns about the implementation delay from the LGBTQ+ community and his administration said it worked with the vendor to get its systems configured to accept the “X” option on its cards by the end of May of this year. But issues in coordinating the shift with the state police and other entities have left the actual implementation date uncertain.
“We know that changing the gender marker is more complicated than just flipping a switch, and it will have significant impacts on law enforcement, medical professionals and the court systems across the state,” secretary of the state’s office spokesman Henry Haupt said in an email. “That’s why we wanted to give these stakeholders some lead time to prepare and make adjustments.”
State police said in the years since the law was passed it couldn’t make adjustments to its internal systems to accommodate the gender marker change until it had clear direction from the secretary of state’s office, which didn’t happen until recently.
Among other issues, the change will have an impact on the widely used LEADS database — an information sharing system administered by the state police that pulls information on driver’s licenses from the secretary of state, as well as criminal history records. A vendor will have to the LEADS program and databases used by other law enforcement agencies to accept the “X” gender marker.
“This is an oversimplification as these changes will take several months to complete,” state police spokeswoman Melaney Arnold said. “Each state’s system is ‘wired’ differently so this may be easier for some states compared to others.”
“Now that this new (secretary of state) administration intends to move forward with implementation, we are working with SOS to arrive at (a) technical solution,” she said in an email. “However, the hundreds of other police departments affected will have their own implementation to address.”
Arnold said the state police will also need to make changes to its Criminal History Records Information, including its data on criminal court outcomes, and that the Livescan fingerprint machines will also need to be updated to accept the additional gender option.
Court systems in Illinois will also need to allow the “X” option into their record-keeping. Chris Bonjean, a spokesman for the Administrative Office of the Illinois Courts, said there’s an “unknown” gender designation for parties involved in cases but in light of the law change, the “unknown” option would be expanded to include the “X” gender designation.
Bonjean said the AOIC would need 90 days to accommodate these changes on citations and get the word out to other courts about the law’s implementation.
“The secretary of state and Illinois State Police have indicated they are working toward identifying the impact of these updates,” Bonjean said in an email. “The AOIC is assisting with facilitating and coordinating implementation between the courts and the state agencies.”
The “X” gender option also presents challenges to health care. The Illinois Health and Hospital Association, an advocacy group for the health care industry in the state, also acknowledged that some electronic hospital record-keeping systems may not be able to read an “X” gender designation on a person’s ID.
The association acknowledged that incorporating the “X” option could take significant time for hospitals to put in place and the change would impact more than a dozen hospital services ranging from lab functions to billing and insurance. Also, if an existing patient presents a new gender from their driver’s license that could generate a new medical record, that could limit vital medical history information to the health care provider.
“Once fully implemented, some hospitals, as well as other health care stakeholders, may need to execute operational and technical changes to ensure new data is correctly captured and there are no downstream hurdles for patient care,” said Paris Ervin, a spokeswoman for the health and hospital association.
In recent years, a number of public agencies have added the “X” gender marker option to official forms. In 2021, for example, the Illinois Department of Public Health’s vital records division added an “X” option to its system for death certificates. Gender-neutral options are also allowed on passports and birth certificates in Illinois.
The secretary of state’s office said Illinois is among more than 20 states to accommodate an “X” gender marker law for driver’s licenses or other state IDs. California’s law has been on the books since 2019. And as of Dec. 31, there were 13,623 driver’s licenses or other state IDs issued to people in California who identified with an “X” on those cards, according to the California Department of Motor Vehicles.
Rudnick, who uses the pronouns he/him or they/them, said although many nonbinary people welcome the availability of an “X” gender marker on state IDs, others might feel safer sticking with an “M” or “F.”
Silas Leslie, a nonbinary trans person who uses they/them pronouns, said they personally don’t prefer to have an “X” gender on any IDs because “that outs me in situations where it may be unsafe to be outed.” So Leslie resorts to an imperfect option by typically identifying as female on certain legal forms that require a legal gender, such as for insurance.
Nonetheless, Leslie believed that having the option to choose “X” as a gender marker “is a great first step” and lamented the long road to implementation.
“It is really that disconnect between forms and a continued lack of representation of the trans community by governmental entities,” said Leslie, an LGBTQ+ advocate for an organization based in Chicago’s Andersonville neighborhood. “That’s why we are considered a minority of a minority (of the population). It’s because we’re not counted in any meaningful way.”