Utahn becomes one of the first in the state to receive nonbinary ‘X’ markers on birth certificate and driver license

The change felt both tiny and monumental: just a different keystroke on a legal document that could help bring Mel Van De Graaff’s life into alignment.

The odds of getting a judge in a conservative state to grant an order allowing an "X" to fill the box that defines gender on Van De Graaff’s driver license and birth certificate instead of an "F" seemed slim at the time. But Van De Graaff, who identifies as neither male nor female and uses the pronouns ‘they’ and ‘them,’ felt it was worth the attempt.

“I was like, you know, it might not happen, but at least I fought for it,” they said. “And that’s really the only comfort that I could take out of it.”

While court orders for gender marker changes from male to female or female to male have grown increasingly common, there is less precedent for an “X,” according to data from Utah’s Office of Vital Records and Statistics.

The vagueness of the portion of Utah law that seems to allow for gender marker changes — it doesn’t define what a sex change is — has meant some judges have begun denying even more standard petitions. Political polarization over what letters should be allowed in a box marked “gender” has complicated one state senator’s effort to clarify the statute.

“Mel wasn’t the first person that had come to me and asked me about this,” said attorney Christopher Wharton, who also serves as a Salt Lake City councilman. “I’d had people come to me before — maybe one or two other people that wanted to seek an ‘X’ designation. And I told them at the time that I didn’t think that it would likely be successful, because there just wasn’t enough precedent.”

Wharton told Van De Graaff that the wrong case at the wrong time could set an unfavorable precedent for other members of the LGBTQ community, but that someone had to press the issue eventually.

It was a risk Van De Graaff was willing to take.

‘I was born into this’

Leah Hogsten | The Salt Lake Tribune Mel Van De Graaff has become one of the first Utahns to receive gender non-binary markers on their government documents, Sept. 26, 2018. Van De Graaff has an "X" on their newly issued driver license and birth certificate rather than an "F" for female or an "M" for male. They spent more than $4,000 and months of time convincing a judge that Utah statute did not prohibit them from receiving gender non-binary markers.

From a young age, Van De Graaff hated the roles associated with the gender assigned at birth — exacerbated by a religious upbringing in The Church of Jesus Christ of Latter-day Saints.

“You know, women in this faith do this,” Van De Graaff said. “Like, they sew, they cook, they have kids, they stay at home and take care of the kids. And none of that was anything that I had ever thought was what I would do. But people kept telling me, ‘Oh, since you’re female, you’re going to do this.’ And I was like, ‘But why? Why do I have to do that?’ Because I was born into this.”

Then, Van De Graaff heard the word “nonbinary” ― a term used to describe someone who identifies outside the boundaries of traditional “binary” male and female gender identity ― as a communication student at Westminster College.

“I was like, ‘that’s it,’ ” they recalled. "That’s what I am.”

After learning that someone in another state had a gender marker designation changed to “X,” Van De Graaff decided to pursue legal changes to their own birth certificate.

“It was like … being honest about who I am,” Van De Graaff said. “In kind of every way.”

Sue Robbins, head of the Utah Pride Center, said having the wrong gender markers on legal documents can feel not only like a rejection of a person’s true identity but can also present a considerable safety issue.

“If we don’t get legal documents that align with how we’ve done our name change and what our gender is," she said, “then that document can out us whenever we use it.”

Robbins, who is transgender, said that using her old driver license with her old name and gender on it would have raised questions and could have opened her up to discrimination or violence.

After consulting with Wharton at the end of 2017, Van De Graaff decided to move forward with the legal case, providing a letter from their doctor, psychiatrist and therapist verifying that they had undergone hormone replacement therapy and had been living publicly as gender nonbinary.

(Steve Griffin | The Salt Lake Tribune) The Utah Supreme Court listens to attorney Chris Wharton as he presents oral arguments about whether an Ogden judge erred when he denied two transgender Utahns gender marker changes, even though he allowed them to change their names. The case is not being challenged by the state. The court heard the arguments in the Matheson Courthouse in Salt Lake City Monday January 8, 2018.

The judge approved a ruling for Van De Graaff’s name change in January but said he wasn’t sure about the gender marker change. He wanted more time to deliberate.

After two long months of waiting, Van De Graaff was back in the courtroom.

And the first thing the judge said was, “I don’t know if I can grant this.” Van De Graaf recalled. “I wanted to fall into the floor. Like, ‘Don’t tell me that. I have just been trying to not devolve into hysterics about this for the past two months. Don’t tell me this can’t happen.’ ”

The judge wasn’t sure if Utah’s vague law allowed him to approve an "X" designation. Wharton argued that he could, because the gender marker change would not adversely affect anyone else and that nothing in the law’s plain language limited the court’s authority to grant the change.

“I guess that was what the judge needed to hear,” Van De Graaff said, “because after that he was like, ‘OK, I’m going to grant this.’ ”

‘There’s no policy right now’

At the same time Van De Graaff’s case was making its way through the court system, the Legislature was in session, considering a bill that would set standards for gender sex designations, including limitations on what gender markers a person could have on their legal documents. If passed, the bill would have prevented a court from granting a petition for an "X" designation.

The bill failed. But its sponsor, Sen. Todd Weiler, R-Woods Cross, said he plans to run it again in the 2019 session, though with a tweak that would allow for an “X" designation.

“There’s no policy right now,” he told The Salt Lake Tribune. “I mean, our job, as a Legislature, is to make a law and to set the policy and here we haven’t done that. So now we have if you file here with this judge, you might get a ‘yes.’ If you file here with this judge, you’ll probably get a ‘no.’ I think that’s problematic.”

(Chris Detrick | The Salt Lake Tribune) Sen. Todd Weiler, R-Woods Cross, speaks during a Judiciary Interim Committee Wednesday, November 15, 2017.

The number of gender designation changes has been rising steadily, from nine in 2012 to 61 in 2018 as of Oct. 1, according to data from the Office of Vital Records and Statistics. Of the 248 approved during that time frame, the records show only one “X,” which was granted in 2017. Van De Graaff was born in Nevada, so their change does not appear in the data.

An Ogden judge ruled in 2016 that he did not have the authority to change a person’s gender and denied two petitioners, whose legal documents bear the new names they had chosen to reflect their gender identities but still list the sex assigned to them at birth. Those denials are believed to be the first issued in Utah, said Wharton, who is also representing those petitioners.

(Christopher Cherrington | The Salt Lake Tribune)

In January, the case made its way to the Utah Supreme Court, which has yet to issue a ruling. Pending an outcome in that case, Weiler’s bill has failed to garner support from Republicans and Democrats.

At an interim Senate Judiciary Committee hearing in August, the more liberal members worried that the requirement in the bill for reissued birth certificates to indicate a sex designation amendment would prevent a person from having a “fresh start.” They also questioned the “arbitrary” age set for gender change petitions at 18.

“When we look at our youth in particular, we already have bullying issues at schools that we identify,” Robbins said, noting that Utah’s youth suicide rate has grown at an alarming pace and that LGBTQ youths are thought to be at a higher risk. “So if somebody gets outed as being transgender at a school, that can be an additional reason to be bullied, and it can become a physical safety concern."

At the same time, some conservatives worried that the sex designation changes are evidence of political correctness run amok.

“Sex is an immutable characteristic that is found to the cellular level in every one of us,” Merrilee Boyack, Utah president of Family Watch International, said during public comment on the bill in August. “Our chromosomes dictate what sex we are, and this cannot be changed by firmly held beliefs, by hormonal presentation, by gender presentation surgery or anything of that matter.”

The Judiciary Committee voted at that meeting to continue the debate on the sex designation changes. Weiler said, while he’s willing to allow an "X" designation, he plans to keep the requirement for an amended birth certificate in his bill. But he doesn’t expect his proposal to receive much support at next month’s committee vote — in which case he said he plans to run the legislation on his own.

“This is something that I think a lot of legislators would rather ignore and hope goes away,” he said. “It’s not going away. In fact, it’s going to get way worse. So we need to do something. And we should have done it in the last session.”

‘This isn’t made up’

When the judge ruled in favor of Van De Graaff’s gender designation change on March 1, all they could feel was shock.

“It was almost like ‘This is a dream,’ ” they said. “But then I kept looking at this documentation right here, like, ‘No it’s not. I have it.’ Right afterward we all kind of ran downstairs, like, ‘Quick, let’s get the court case and get the documents before they change their mind.’ ”

Van De Graaff, who was born in Nevada, started to worry about the next hurdle: Getting another state to recognize the Utah court ruling. But their birth certificate change was approved without incident. As was their driver license, after Utah’s Driver License Division updated its computer programs to allow for the change.

Having a legal recognition of their gender identity feels legitimizing, Van De Graaff said.

“I haven’t had anybody have a problem with me being nonbinary,” they said. “But if I did, I could be like, ‘Look. The court recognizes that I am nonbinary. So it’s just a problem that you have.’ Like, this isn’t made up, because I have a certified court document.”

Van De Graaff said their friends, family, religious leaders and partner have been supportive of the gender marker change.

“I came out to my spouse and he’s like, ‘Yeah… I know. I didn’t have words for it, but I basically just knew that the whole time,” they said. “He’s like, ‘I don’t think we would have been married if you were all these other people.’ ”

Still, Van De Graaff said hurdles remain to gaining full acceptance and understanding in the larger community. People often refer to them by the wrong pronoun, which can be painful, they said.

“I don’t really have control over that, which is really frustrating to have gone to all this effort and still have that happen,” Van De Graaff said. “Like, the law recognizes me as this, but people on the street don’t. And I think that’s a fight that’s probably going to continue for years.”