New York sued for not offering ‘X’ gender option in public assistance, food stamp registration

Times Square, New York, coronavirus
Times Square in New York City |

New York is facing a lawsuit filed by people who identify as nonbinary and argue that they face discrimination because the state requires them to indicate that they are either male or female to receive public welfare benefits. 

The fact that the Empire State does not provide an “X” gender option is discriminatory based on gender identity, the claimants argued in the complaint filed Monday against state and local agencies that run public assistance programs.

In 2019, New York began allowing the “X” gender option on birth certificates, and the same has been promised for driver’s licenses. But the plaintiffs assert that the state computer system used by the Office of Temporary and Disability Assistance is “outdated” because it compels people who say their gender is nonbinary to lie when applying for certain services such as food stamps, Medicaid and other forms of public assistance.

“I have been unable to find stable work since the pandemic began and turned to public assistance for help,” said Jules Donahue, one of three plaintiffs in the lawsuit. “I encountered more barriers to accessing help than others solely because I am nonbinary, and I was forced to choose between forgoing emergency support with medical coverage, cash assistance, and EBT benefits, and the emotional harm of being misgendered at such a vulnerable time. No New Yorker should have to make this choice.”

The plaintiffs are represented by the New York Civil Liberties Union and Legal Services of New York City. The plaintiffs argue that the requirement to choose either male or female to apply for welfare assistance conflicts with state and municipal policies that recognize gender “X” on identification documentation. They also argue that having no "X" gender option violates the state constitution and anti-discrimination laws. 

Another plaintiff, who is 40 years old, obtained a birth certificate with an "X" marker in January but could not revise his benefits records. 

“Jaime has known that they were transgender since they were two years old—when they first understood the concept of gender,” the lawsuit explains. “They have been diagnosed with gender dysphoria and receive regular gender-affirming treatment for gender dysphoria at their health care provider, covered by Medicaid. Part of their treatment for gender dysphoria includes living consistently as a nonbinary person and having their gender identity acknowledged and respected in everyday life.”

The lawsuit demands that the state add “X” as a gender identity option in the OTDA system and provide updated guidance and training for social services staff. 

Thus far, neither the Cuomo administration nor the OTDA has commented on the lawsuit. 

Bobby Hodgson, an attorney with NYCLU, said the state has been aware of the issues outlined in the lawsuit for years.  

“New York State recognizes its obligation to respect the rights of nonbinary people in some contexts, but refuses to do so when New Yorkers are in need,” Hodgson said. “A broken system of the state’s own making cannot justify discrimination. This case may be one of the first of its kind, but neither history nor the law is on OTDA’s side.”

The term “nonbinary” is spoken of in public discourse as referring to people who do not identify as either sex or some of both.

In a November court filing, the state of New York said it plans to alter its computing system within the Department of Motor Vehicles to allow for an "X" gender marker to be offered on driver’s licenses. The move came after the state was slapped with a federal lawsuit for only offering "male" and "female" gender options on driver's licenses. 

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