Does New York City legally recognize 31 different genders?

Question

Several news sources (for example, The Odyssey Online and the Toronto Sun in 2016) claim that New York City recognizes 31 distinct genders. On the other hand, an article from the Huffington Post claims that New York City just started offering a third gender on birth certificates in 2019. This seems inconsistent - how could the city just be getting around to upping the number of genders on birth certificates from two to three if they had already been recognizing 31 different genders since at least 2016?

Does New York City actually recognize (or has it ever recognized) 31 distinct genders in law (e.g. via statute, judicial ruling, administrative policy issued pursuant to statutory authority, etc.)?

Are reports that New York City recognizes 31 distinct genders simply incorrect?
Does New York City recognize different sets of genders for different purposes (e.g. one might be able to register their child for school under a specific gender but not place that gender on the child's birth certificate)?
Did New York City recognize 31 distinct genders in 2016, but dropped the number of official genders to three or two by 2019 (explaining why 2019 birth certificates only offer three genders)?

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Comments are not for extended discussion; this conversation has been [moved to chat](https://chat.stackexchange.com/rooms/102971/discussion-on-question-by-robert-columbia-does-new-york-city-legally-recognize-3). — Oddthinking, Jan 07 '20 at 05:53
Just a quick note: there's little point in including other genders on the birth certificate, since the "31" (or whatever) wouldn't be known at the point of birth. The two claims can easily be true at the same time. — Luaan, Jan 07 '20 at 10:14
@Luaan The Huffpost story is about being able to correct the gender marker, which can happen at any age. See the [NYC FAQ about birth certificate corrections](https://www1.nyc.gov/site/doh/services/certificate-corrections.page), specifically "How do I change the gender marker on my birth certificate?" for details. — tim, Jan 07 '20 at 10:43
@tim exactly. That's a big reason that I question the base claim (e.g. mentioned in the Toronto Sun) that NYC recognizes 31 genders. If they really do recognize 31 genders, presumably one could pick any of the 31 when amending one's birth certificate. The reality seems to be that there are only three gender choices. Why not all 31? Are these 31 not *really* recognized as true legal genders under City law, or is this a feud between different City departments who each want to decide how many genders there really are? — Robert Columbia, Jan 07 '20 at 11:54
@RobertColumbia: There's no feud. IMSoP's makes clear what the stance of NYCCHR, and by extension of NYC, is with regard to gender identity. The fact that there is only a third option on birth certificates doesn't contradict this stance at all. NYC citizens may choose the third option if the other two options don't apply. Offering this third option doesn't invalidate the range of different gender identities. They are, however, not listed explicitly – apparently, NYC assumes, as the CHR makes clear in its documents, that there cannot be a conclusive non-discriminating list of gender identities. — Schmuddi, Jan 07 '20 at 12:45
@RobertColumbia and Schmuddi: You're trying too hard to give credence to the claim. It's a misinterpretation of a public information leaflet; probably a _deliberate_ misinterpretation, by people with a political agenda. There's no reason to think about where the 31 options might or might not apply because the 31 options don't exist, and never did. — IMSoP, Jan 07 '20 at 13:12
One thing is how you are *registered* (gender), the other is how you feel and / or express yourself. For the longest time, "official" gender had to be binary, and was decided *for* you ("assigned" gender), with all kinds of (sometimes debasing) hoops to jump through should you turn out to self-identify otherwise. The thing to take away here is, there is now a way to change your registration according to your self-identification, including non-binary. That's what the actual forms say. The list of identifications / expressions is, as IMSoP pointed out, to open people's eyes to their multitude. — DevSolar, Jan 07 '20 at 13:24
2nding @Luaan, I want to highlight that there is no logical contradiction between the two claims. Suppose some hypothetic jurisdiction recognizes FTM and MTF as genders, but neither of the two has any plausible case to be assigned *at birth*. Most if the variation in a person's own sex and or gender perception comes later in life. Not much later, as many transgendered people know they have had been in the "wrong" body since as early as 4–5 years of age. But it's *their own* perception, and a newborn has neither such a self-perception (or even knows what "body" is) nor a way to communicate it. — kkm inactive - support strike, Jan 07 '20 at 19:33

IMSoP · Accepted Answer · 2020-06-09T11:39:45.747

I would like to present the same evidence as DavePhD's answer, but with a different summary of what it indicates.

In summary:

NYC recognises 3 genders on Birth Certificates (M, F, and X)
The number 31 probably comes from a list of gender-related terms which are not "legally recognised genders"
There may be contexts where more than 3 options are recognised for "gender", but there is no evidence for a number as high as 31

A possible source for the "31 genders" claim is a leaflet published by the New York City Commission on Human Rights, dated 2015. One page (perhaps intended as one side of a double-sided card) starts with the text:

In New York City, it’s illegal to discriminate on the basis of gender identity and gender expression in the workplace, in public spaces, and in housing.

It goes on to give definitions of the terms "Gender Identity" and "Gender Expression", as well as listing some specific rights, and tips labelled "Courtesy 101".

The second page (perhaps intended as the other side of the card) consists simply of a list of 31 terms, with no title, and in no apparent order:

BI-GENDERED • CROSS-DRESSER • DRAG KING • DRAG QUEEN
FEMME QUEEN • FEMALE-TO-MALE • FTM • GENDER BENDER
GENDERQUEER • MALE-TO-FEMALE • MTF • NON-OP • HIJRA
PANGENDER • TRANSEXUAL/TRANSSEXUAL • TRANS PERSON
WOMAN • MAN • BUTCH • TWO-SPIRIT • TRANS • AGENDER
THIRD SEX • GENDER FLUID • NON-BINARY TRANSGENDER
ANDROGYNE • GENDER GIFTED • GENDER BLENDER • FEMME
PERSON OF TRANSGENDER EXPERIENCE • ANDROGYNOUS

The card does not state that these are "genders", or that they have any officially recognised meaning. Given the context of the card, we can assume they are intended as related to "Gender Identity" and "Gender Expression" in some way, but there is no other indication of why these particular terms were chosen.

It's also worth noting that the list includes clear synonyms, such as both "female-to-male" and its abbreviation "FTM"; it would be very surprising to find these recognised as distinct "genders".

Similar lists of terms can be found in other publications issued by the same authority, such as New York City Commission on Human Rights Legal Enforcement Guidance on Discrimination on the Basis of Gender Identity or Expression: Local Law No. 3 (2002); N.Y.C. Admin. Code § 8-102(23) which includes a "definitions" section.

An introductory paragraph describes the intent of the definitions:

These definitions are intended to help people understand the following guidance as well as their rights and responsibilities under the NYCHRL.

It includes a definition of "Gender" as an abstract term, rather than a countable one, and definitely doesn't enumerate any possibilities:

"Gender" includes actual or perceived sex, gender identity, and gender expression including a person's actual or perceived gender-related self-image, appearance, behavior, expression, or other gender-related characteristic, regardless of the sex assigned to that person at birth.

Other sections include examples, such as:

Terms associated with gender expression include, but are not limited to, androgynous, butch, female/woman/feminine, femme, gender non-conforming, male/man/masculine, or non-binary.

and

Terms associated with gender identity include, but are not limited to, agender, bigender, butch, female/woman/feminine, female to male (FTM), femme, gender diverse, gender fluid, gender queer, male/man/masculine, male to female (MTF), man of trans experience, pangender, or woman of trans experience.

These lists do not match the idea that "New York City legally recognises 31 different genders" for several reasons:

They appear under multiple different terms in a glossary, so clearly are not all alternative types of the same thing.
They are nowhere described as "different genders" or even "different gender identities"/"different gender expressions", only "terms associated with..." the concepts being defined.
The text repeatedly reminds the reader that these are examples, not exhaustive lists.

This is made even more explicit in the introduction:

Readers should bear in mind that language evolves, and the best practice is to refer to people with the term(s) they use to self-identify.

One claim we could make from this document would therefore be "New York City legally recognises any terms people use to self-identify their gender identity and gender expression". However, it would be wrong to call those terms "different genders", and it would be wrong to give any specific number of possibilities.

There is one sentence in the definition of Gender Identity which could be said to "recognise" four distinct categories:

A person’s gender identity may be male, female, neither or both, i.e., non-binary or genderqueer.

I presume the author used "i.e." where "e.g." would be more appropriate, and "non-binary or genderqueer" are again just examples of things that fit into these categories.

It's not clear that these four categories have any specific definition or power in law; for instance, there is no indication that "neither" and "both" should be separate options on forms or identification documents. Again, the context we have to work in is that this is an explanatory guide to the concepts involved.

The alternative claim, that New York City legally recognizes exactly 3 genders on birth certificates, is true. A press release date 31st December 2018 announced the new policy:

The Health Department today announced that beginning Jan. 1, 2019, New Yorkers can change the gender on their birth certificate to "X" to reflect a non-binary gender identity.

This applies both to new birth registrations, and to amendments to existing certificates:

People born in New York City can submit a notarized affidavit that attests the gender marker change is to affirm their gender identity.

These are processed as "corrections" to the official record using an application form which confirms there are exactly three options:

I, [Applicant/Registrant], hereby attest under the penalty of perjury that the request to change the gender marker on my birth certificate no. [___],from [M/F/X] to [M/F/X], is to reflect my true gender identity and is not for any fraudulent purpose.

There is no mention in the press release of any fourth, fifth, or thirty-first gender options.

The HTML version omits the statement "NOTICE IS HEREBY GIVEN, pursuant to the authority vested in the Commission on Human Rights by section 905(e)(9) of the New York City Charter and in accordance with the requirements of Section 1043 of the Charter, that the New York City Commission on Human Rights (“the Commission”) has amended its rules to establish certain definitions and procedures applying Local Law No. 3 of 2002 (“Local Law 3”) and Local Law No. 38 of 2018 [continued below} — DavePhD, Jan 06 '20 at 13:50
(“Local Law 38”), which amended the Administrative Code of the City of New York (“Administrative Code”) to make explicit that discrimination based on gender identity and expression is a violation of the City’s Human Rights Law. " and Local Law No. 38 of 2018 (“Local Law 38”), which amended the Administrative Code of the City of New York (“Administrative Code”) to make explicit that discrimination based on gender identity and expression is a violation of the City’s Human Rights Law. " https://www1.nyc.gov/assets/cchr/downloads/pdf/CCHR-Final-Gender-Rule-2019-1-4.pdf — DavePhD, Jan 06 '20 at 13:51
@DavePhD Is the orange background color part of the regulation too? If I quote or paraphrase a law in my document, that does not mean my document has the force of law. — barbecue, Jan 06 '20 at 14:45
@DavePhD OK, I've removed that phrase, because it wasn't necessary for my argument anyway. Instead, I have expanded on just how badly the idea of "31 different genders" misrepresents this document. — IMSoP, Jan 06 '20 at 14:59
@DavePhD That's not the new PDF you linked to though, it's just the same text as the HTML page (which I took from your original answer) in a different format. Still, like I say, whether it's a regulation or not doesn't matter, because it in no way supports the claim in the question. — IMSoP, Jan 06 '20 at 15:24
@IMSoP I see. The source is here https://www1.nyc.gov/site/cchr/law/title-47-index.page under "rule making history". Final text: https://www1.nyc.gov/assets/cchr/downloads/pdf/CCHR-Final-Gender-Rule-2019-1-4.pdf , hearing transcript: https://www1.nyc.gov/assets/cchr/downloads/pdf/09.25.18_NYC_Hearing.pdf , and public comments: https://www1.nyc.gov/assets/cchr/downloads/pdf/Gender%20Rule%20Comments.pdf — DavePhD, Jan 06 '20 at 15:33
@DavePhD Feel free to point out anything in those additional documents that backs the assertion that a) these are "different genders"; b) the City is "legally recognising" them as such; and c) that there are 31, or any other specific finite number, of them — IMSoP, Jan 06 '20 at 15:59
@IMSoP I agree with you. They are just descriptors, not genders. There is no finite list of descriptors. The only thing I'm wondering about is whether it is a crime to knowingly call someone the wrong descriptor. — DavePhD, Jan 06 '20 at 16:02
@DavePhD While that's an interesting question, and one fraught with political overtones, it's not the claim we're investigating. — IMSoP, Jan 06 '20 at 16:45
@IMSoP i'm starting to change my mind about the answer, because now I realize the commission defined "gender" to include "gender identity, and gender expression". So about 20 examples of gender are recognized, but there is no finite list. — DavePhD, Jan 06 '20 at 16:55
Aren't we just talking about birth certificates here? The vast majority of alternate genders on that list would be meaningless and impossible to determine for a newborn infant, which is the only time at which the birth certificate should matter. A gender identity is something that develops over time, and may even change multiple times over the course of a person's life. At the time of birth, when this document is created, it would basically just be undefined. — Darrel Hoffman, Jan 06 '20 at 17:00
@DarrelHoffman As I understand it, although the document is called a "birth certificate", it can be amended later in life. I'll add to my answer to address that part of the claim. — IMSoP, Jan 06 '20 at 17:16
@DavePhD I think you're relying there on mixing "gender", as an abstract concept, with "genders" as countable categories. Even if you could come up with "a list of gender identities" and "a list of gender expressions" (which the document does not, it says "terms associated with"), you couldn't simply combine them and call the result "a list of genders". A literal interpretation would require the "gender" list to contain *combinations* of entries from the two other lists, but that is also not what is generally understood when "gender" is used as a countable noun. — IMSoP, Jan 06 '20 at 17:37
@IMSoP aside from the "terms associated" lists in your answer, there is also the more explicit statement in the commission's rule: "A person’s gender identity may be male, female, neither or both, i.e., non-binary or genderqueer." — DavePhD, Jan 06 '20 at 17:48
@DavePhD I hadn't spotted that; at a stretch, you could argue that that gives us "four genders" (I assume the author used "i.e." where "e.g." would be more appropriate, and "non-binary or genderqueer" are again just examples). — IMSoP, Jan 06 '20 at 17:52
Potentially worth noting that even if the terms in the list are construed as genders there still aren't 31 different genders due to repetition/synonyms like `TRANSEXUAL/TRANS/TRANS PERSON/PERSON OF TRANSGENDER EXPERIENCE` and `MALE-TO-FEMALE/MTF` and `FEMALE-TO-MALE/FTM`. So even under the most charitable interpretation possible the claim of "31 different genders" can only be false. — aroth, Jan 07 '20 at 04:40
@aroth true. The same would be true of someone claiming that "female", "girl", "woman", "lady", "F", and "gal" are distinct genders as opposed to distinct *terms* for which some people might have preferences among. — Robert Columbia, Jan 31 '20 at 17:34

DavePhD · Answer 2 · 2020-01-06T17:01:30.170

There is an official document on an official New York City website, which is a publication of the New York City Commission on Human Rights:

BILL DE BLASIO, Mayor • CARMELYN P. MALALIS, Commissioner/Chair

The document is titled, according to the URL, "Gender ID Card 2015".

The document lists the following 31 descriptors:

It is not stated that these descriptors are "genders".

A current list that has legal force is in: New York City Commission on Human Rights Legal Enforcement Guidance on Discrimination on the Basis of Gender Identity or Expression: Local Law No. 3 (2002); N.Y.C. Admin. Code § 8-102(23):

NOTICE IS HEREBY GIVEN, pursuant to the authority vested in the Commission on Human Rights by section 905(e)(9) of the New York City Charter and in accordance with the requirements of Section 1043 of the Charter, that the New York City Commission on Human Rights (“the Commission”) has amended its rules to establish certain definitions and procedures applying Local Law No. 3 of 2002 (“Local Law 3”) and Local Law No. 38 of 2018 (“Local Law 38”), which amended the Administrative Code of the City of New York (“Administrative Code”) to make explicit that discrimination based on gender identity and expression is a violation of the City’s Human Rights Law.

The required public hearing was held on September 25, 2018.

...

•Gender. “Gender” includes actual or perceived sex, gender identity, and gender expression including a person’s actual or perceived gender-related self-image, appearance, behavior, expression, or other gender-related characteristic, regardless of the sex assigned to that person at birth.

•Gender Expression. “Gender expression” is the representation of gender as expressed through one’s name, pronouns, clothing, hairstyle, behavior, voice, or similar characteristics. Gender expression may or may not conform to gender stereotypes, norms, and expectations in a given culture or historical period. Gender expression is not the same as sexual orientation or gender identity. Terms associated with gender expression include, but are not limited to, androgynous, butch, female/woman/feminine, femme, gender non-conforming, male/man/masculine, or non-binary.

•Gender Identity. “Gender identity” is the internal deeply-held sense of one’s gender which may be the same as or different from one’s sex assigned at birth. A person’s gender identity may be male, female, neither or both, i.e., non-binary or genderqueer. Gender identity is not the same as sexual orientation or gender expression. Terms associated with gender identity include, but are not limited to, agender, bigender, butch, female/woman/feminine, female to male (FTM), femme, gender diverse, gender fluid, gender queer, male/man/masculine, male to female (MTF), man of trans experience, pangender, or woman of trans experience.

...

The following requirements apply with respect to Title 8 of the Administrative Code’s prohibition on unlawful discriminatory practices based on gender:

(a) Deliberate Refusal to Use an Individual’s Self-Identified Name, Pronoun or Title. A covered entity’s deliberate refusal to use an individual’s self-identified name, pronoun and gendered title constitutes a violation of §8-107 of the Administrative Code where the refusal is motivated by the individual’s gender. This is the case regardless of the individual’s sex assigned at birth, anatomy, gender, medical history, appearance, or the sex indicated on the individual’s identification except in the limited circumstance where federal, state, or local law requires otherwise (e.g., for purposes of employment eligibility verification with the federal government). Asking someone in good faith their name or which pronoun they use is not a violation of the Human Rights Law.

a. Examples of violations.

i. Deliberately calling a transgender woman “Mr.” after she has made clear that she uses female titles. Deliberately using the pronoun “he” for a non-binary person who is perceived as male but has indicated that they identify as nonbinary and use the pronouns “they,” “them,” and “theirs.”

...

Fewer than 31 descriptors are listed, but it says "are not limited to". The descriptors are not directly stated to be "genders", but instead examples of "gender expression" and/or "gender identity". On the other hand, "gender" is defined to include "gender identity, and gender expression".

The list isn't accompanied by any explanation. Is there reason to think this list is used for any particular purpose in law? — Nate Eldredge, Jan 05 '20 at 23:28
Ok, but in the latter list, I don't count 31. And it would be helpful to have an explanation of how and where these concepts do and don't apply in New York law. — Nate Eldredge, Jan 05 '20 at 23:58
@NateEldredge I don't count 31 either and it says "are not limited to" twice. The NYC Commission on Human Rights has rule making authority, so the second list does have some legal weight. There is more information about the legal authority here: https://www1.nyc.gov/assets/cchr/downloads/pdf/CCHR-Final-Gender-Rule-2019-1-4.pdf — DavePhD, Jan 06 '20 at 00:22
Briefly scanning through the linked reference I don't see anywhere where it says that the list of definitions is "official" or somehow to be considered as a list to choose from. Rather, the list appears to be just a set of examples of how someone may define their "gender", while the law essentially prohibits any bias based on such gender identification. — Daniel R Hicks, Jan 06 '20 at 01:09
Given that the list of 31 items is exactly the same as the list from the question, it's fair to assume that this is the source for it. But framing the items as officially recognized genders - as the transphobic Sun article does - seems incorrect, because 1) the card is about gender identity *and expression* (many of the items fall into the second category) and 2) a pride flyer by the NYCCHR is hardly a sign that these are "officially recognized" by the city of New York. — tim, Jan 06 '20 at 09:11
The format of this list is really terrible. It looks like it uses ⬤ to separate the genders, but only when on one line. It took me some time to find `WOMAN` because I thought that it actually was `TRANS PERSON WOMAN`. One would hope that on such subjects with words which may not be understandable to everyone, some care about the formatting would be applied. — WoJ, Jan 06 '20 at 13:33
The same website has a picture of a purple slide in a playground. Using this reasoning, New York is "legally recognizing" purple slides. Just because something is posted on an official web site doesn't make it a legal document. — barbecue, Jan 06 '20 at 14:43
How are woman and man genders? I thought they were considered sexes. Is that just supposed to imply heterosexual? — MCMastery, Jan 06 '20 at 19:10
@MCMastery I wouldn't necessarily make a big distinction between gender and sex, but if we are to make the distinction, "man"/"woman" would be gender identities, and "male"/"female" would be sexes. People with the gender "man" and sex "male" would eg be cis men. Heterosexuality isn't related to any of it, because it's a sexual orientation, not a gender. — tim, Jan 06 '20 at 19:16
@tim ohh i reread the image and thought i saw bisexual and my comment was mainly written just because of that lol. that makes sense, thanks — MCMastery, Jan 06 '20 at 19:29
'Fewer than 31 descriptors are listed, but it says "are not limited to"' - _Far_ fewer, you mean. The quoted source says quite plainly "A person’s gender identity may be male, female, neither or both". So there are _exactly_ four recognized gender identities; **male**, **female**, **neither**, and **both**. Every other term is just an example of how someone might express their maleness/femaleness/neitherness/bothness, not an addition to the cardinal set. — aroth, Jan 07 '20 at 04:54

Does New York City legally recognize 31 different genders?

2 Answers2