NY social service company sued for not permitting X gender mark

Non-binary New Yorkers currently required to declare themselves male or female in order to receive Medicaid, grocery stamps, and other public support, say in a lawsuit filed Monday that the state is discriminating against them by not offering an X-gender option .

The lawsuit against state and city agencies running benefit programs targets the type of non-binary gender option already allowed on New York birth certificates and promised for driver’s licenses. The non-binary plaintiffs said the “outdated” government computer system maintained by the Bureau of Temporary Disability Assistance and Assistance forced non-binary individuals to either lie under oath or refuse to perform.

“I was forced to choose between M or F, male or female, as a gender marker, which doesn’t really match how I express myself or how I feel inside. That was particularly traumatic, especially at such a vulnerable time,” said Jules Donahue , one of three plaintiffs in the New York Civil Liberties Union and Legal Services of NYC lawsuit.

Donahue, 30, filed for benefits in July after the coronavirus pandemic made it difficult for the New York law student to find a stable job. Donahue was identified as male for the application, “but it just doesn’t feel as authentic to me as X.”

The lawsuit, which has been filed in Manhattan state court, names the agency, commonly referred to as OTDA, along with state health department and Governor Andrew Cuomo. The lawsuit also cites the New York Department of Social Affairs, although city officials have urged the state to update their system.

An OTDA spokesman said in an email that the gender marker applies only to the agency’s internal computer system, not public documents, and that a multi-million dollar software upgrade allows for the additional gender option. It wasn’t clear how long that would take. The agency said it ensures proper access to services regardless of gender identity or expression.

A spokesman for the city’s Department of Social Services said the state controls the system and they continue to advocate change.

“As we have said repeatedly over time, we continue to believe that the state’s delays, rejections and distractions on this matter are ultimately discriminatory and need to be addressed in a timely manner,” Isaac McGinn said in an email.

New York is one of at least 18 states that according to the lawsuit provide for some legal recognition of non-binary gender characteristics. In addition to birth certificates, the state announced in a November court motion that it would modify the Department of Motor Vehicles computers to offer driver’s licenses with an X-gender marker.

The lawsuit states that the OTDA system discriminates on the basis of gender identity and violates state human and civil rights laws and the state constitution. The lawsuit demands that the government add “X” as a valid option for gender identity to the benefit system, as well as updated instructions and training for social workers on proper behavior when dealing with non-binary people.

Co-plaintiff Jaime Mitchell said the lack of an X option was additional outrage for already vulnerable people who need Medicaid or grocery stamps. Mitchell, 40, was able to get a birth certificate with an X-marker in January but was unable to update his records of achievement.

“Every time I need something as simple as food or make a doctor’s appointment, I am forced to abuse myself in order to be mistreated. And that takes a toll,” said Mitchell, a New York City resident.

NYCLU attorney Bobby Hodgson said the state knew the system had been out of date for years.

“The fact that New York State has broken the only way people can get benefit through a broken system simply cannot justify the discrimination that is occurring,” Hodgson said.

Princess Janae Place, an organization in the Bronx that helps transgender and non-binary people transition from homelessness to independent living, is also a plaintiff in the lawsuit. Managing director Jevon Martin said he saw the financial and emotional burden of discrimination on the people his organization helps.

“That’s the problem,” he said, “you are not seen who you are.”

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