*Co-written with Madison Castle (Rising 3L at George Washington Law School)
Non-binary individuals often fall through the cracks of our health care system. A common scenario involves forcing non-binary individuals to choose a gender in order to receive necessary medical care. When a health plan conducts outreach to their members with an “F” gender marker for mammograms and Pap smears, their non-binary members who need those services are left out, widening health disparities in their reproductive and sexual care. When a medical provider misgenders their non-binary patient, they may be discouraged from returning, causing delays in their care. These are just a few examples highlighting the importance of gender markers in the relationship between non-binary individuals and the health care system.
In 2017 Governor Gavin Newsom signed into law the California Gender Recognition Act (S.B. 179) requiring official recognition of non-binary gender markers in state programs starting in 2019. This was milestone legislation for the LGBTQ+ community in California, and especially for non-binary people. It has since been implemented as to important identity documents, such as driver’s licenses, state IDs, and birth certificates.
However, implementation is inconsistent and lagging in California’s Health and Human Services programs. Currently, a non-binary resident of California can identify as non-binary on their birth certificate, passport, and driver’s license, but must choose between male or female when applying for Medi-Cal.
What is non-binary?
There are many identity umbrellas within the LGBTQ+ community, such as sexuality umbrellas, e.g., bisexual, lesbian, and gay, and gender umbrellas, e.g., non-binary or transgender. Sexual orientation defines the way one is attracted to others around them, while gender identity involves the way a person perceives themselves and what they call themselves. Non-binary individuals do not identify within the binary representations of gender, i.e., male and female gender, in scientific and popular literature. They neither identify as solely a woman or a man, they might identify as both, neither, a gender somewhere in between, or outside. Some examples of what falls under the broad definition of non-binary includes those who are genderfluid, androgynous, gender non-conforming, genderqueer, or Two-Spirit.
Non-binary is an umbrella term for individuals whose gender identity doesn’t reflect the binary genders, while transgender is used to define individuals whose gender identity differs from the gender they were assigned at birth. While many non-binary individuals identify as transgender, some do not. Furthermore, some transgender individuals do not identify as binary transgender.
According to a study by the California Department of Public Health, an estimated 1.4 million, or 5.5 percent of California’s adults identify as lesbian, gay, bisexual, or another sexual orientation, or transgender. Among the LGBT population, 5.2 percent of adults identify as having a lesbian, gay, bisexual, or another sexual orientation, while 0.3 percent self-identify as transgender. Notably, for those who identify as nonbinary but not transgender, there is far less research.
Why do non-binary gender markers matter?
Currently, we know at a national level that non-binary adults in the US are more likely to be uninsured, of poor or fair health, and have serious mental health illnesses compared to their straight cisgender counterparts. Sixty eight percent of the population reports not having enough money to make ends meet, and 43% fall into the “low-income” household category, meaning their household income is less than 200% of the Federal Poverty Level. Furthermore, a study conducted in 2019 found that gender queer or non-binary respondents reported significantly worse general well-being and health outcomes compared to binary transgender respondents. Non-binary respondents also had additional negative impacts of lower education level and more economic stress than transgender respondents.
What we don’t know, however, is of greater importance. Due to the inconsistency in gender markers amongst the state’s HHS forms, we do not have adequate data on the state level of health disparities of non-binary individuals. California does not consistently collect demographic data related to sexual orientation, gender identity, and sex characteristics. Without this data, the state and advocacy organizations are unable to assess the needs of this population and provide adequate solutions and resources. The systemic exclusion of data collection of LGBTQ+ health data prolongs significant disparities in the health and welfare of the population. Nonbinary individuals specifically have remained notably invisible in health research.
The impact of allowing individuals who are nonbinary to have their gender-related appearance match their identification documents bleeds into their everyday lives, from using credit cards for purchases to avoiding harassment and violence. A study by the Trevor Project, a suicide prevention and crisis intervention organization for LGBTQ youth, found that allowing transgender and non-binary youth to change legal documents to reflect their pronouns was associated with lower rates of attempted suicide. The vast impact of providing adequate gender markers on state administrative forms, thus, could change the lives of non-binary identifying individuals as well as the lives of those around them.
What changes are needed?
California legislature has made clear their intention to address these goals, and now it is time for agencies to do their part in this path to health equity for the non-binary community. While it is understandable that implementation of the California Gender Recognition Act was somewhat delayed due to the COVID-19 pandemic’s disruption starting in 2020, state health and human services programs have now gone more than three years past their deadline to implement the non-binary gender marker. The California Health & Human Services Department reportedly convened a task force in 2021 to determine how to implement a non-binary gender marker across the programs and agencies under its umbrella. However, to-date, the agency has not implemented a non-binary gender marker.
According to the bill text of the LGBT Disparities Act of 2015, California declared it is in the best interest of the state to “respect, embrace, and fully understand the full diversity of its residents and to collect accurate data to effectively implement and deliver critical state services and programs.” Prior to the passing of the Act, the state did not collect adequate data on the LGBTQ+ population.
The promises and goals of the LGBT Disparities Reduction Act, which aims at addressing health disparities and systemic exclusion of data collection in the LGBTQ+ community by collecting SOGI data, cannot be met if state programs are lagging in implementation of S.B. 179. If the state’s HHS programs are blind to residents’ gender markers, then they will not provide effective care to LGBTQ+ Californians consistent with the goals of the LGBT Disparities Act. The state needs to take action now to fully implement this Act so that the next generation of Californians, 27% of which identify as non-binary, will have their gender markers acknowledged across all state systems and have their rights fully recognized.
