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Nevada Law Journal




Although many official documents and forms of identification contain a sex or gender identifier, gender, as a category on these documents, is not very helpful in confirming a person's identity. If the purpose of the inclusion of gender on official documents is to accurately identify an individual, technological advances have given us more accurate methods of ensuring a person's identity. Technologies such as fingerprinting, facial recognition and retinal scans are far superior methods of determining whether a person is who they claim to be. The use of gender or sex on identification cards does little to positively identify individuals, and instead, creates problems for people who do not fall neatly into either of the two currently accepted categories of sex or gender.

As a weak identifier, gender should not appear as a category on a state issued driver's license or official identification card, yet states no longer have the authority to decide whether to require its inclusion. The REAL ID Act of 2005 recently went into effect, establishing requirements for state issued identification cards and driver's licenses. The REAL ID Act requires states to issue driver's licenses and identification cards that meet certain requirements to ensure more accurate identification in the post 9/11 world. The nine minimum requirements for information that states must provide on these cards include a person's gender.

Although critics have attacked the REAL ID Act on many grounds as an affront to civil liberties, as an unwelcome federal intrusion to a state's police powers, or as the dreaded creation of a national identification card, I argue that the government should remove gender as a required identifier for two additional reasons. First, by barring any state from removing gender or sex from identification cards, the REAL ID Act prevents any state from removing these categories in an effort to reduce the complications of inclusion that a gender identifier inflicts on its gender variant citizens. Second, including a description of gender or sex is not an accurate method of identification, in no small part because gender and sex are not fixed and may later change, so should not be required under a federal law that ostensibly seeks to improve the accuracy of identity cards.

This Article first examines the limits of legal classifications that view human traits as dichotomous. Next, it reviews the medical, scientific, and legal problems created by imposing a binary of sex or gender and the resulting problems this creates for many sexual minorities. Finally, this Article examines the REAL ID Act's requirement to include gender, critiquing its inclusion as a poor identifier in light of current identification technology, and a problematic or discriminatory identifier for certain sexual minorities.

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University of Nevada Las Vegas

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