Nonbinary Option On The Chopping Block

A federal appeals panel said Puerto Rico likely has a lawful, privacy-based reason to keep birth-certificate gender markers limited to male or female.

Story Snapshot

A First Circuit panel signaled support for Puerto Rico’s binary-only birth certificate policy under rational-basis review.
The policy ties changes to privacy and record integrity while preserving the original birth-sex entry.
Advocates for six nonbinary Puerto Ricans seek an “X” option, citing constitutional rights.
Courts and agencies have shifted over years from banning all changes to allowing some, fueling the current fight.

What the Appeals Court Signaled

A United States Court of Appeals for the First Circuit panel suggested Puerto Rico’s two-gender system for birth certificates may pass the low “rational basis” test. Judges raised privacy and administrative reasons the government offered, and they viewed those reasons as enough for now. Reporting on the oral argument said the panel saw a path to uphold the policy, which bars an “X” marker. The case challenges a lower court order that required the “X” option for nonbinary people.

Rational-basis review asks only if a rule relates to a legitimate state interest. The standard is forgiving, and many policies survive it. A legal analyst summarized the panel’s view this way: under that forgiving test, Puerto Rico’s policy can be supported by a rational basis. The panel did not issue a final ruling at argument, but its questions pointed toward accepting the government’s privacy and record-keeping justification for a binary marker system.

The Government’s Stated Interests and Current Process

Puerto Rico law protects the privacy of people who change their gender marker and preserves the original birth record. The code says the registrar can annotate changes but cannot alter the original sex entry on the original act of birth. The statute also directs the registry to issue certifications while safeguarding privacy. These provisions show a balance: allow a corrected certificate for daily use, while keeping a stable historical record in the file.

The current process, shaped after 2018 litigation, lets people change the marker to male or female with a form and supporting proof. Applicants can present a driver’s license, a passport, or a professional certification matching their gender identity. A federal court filing summarized this protocol and noted it focuses on confirming identity rather than requiring surgery or long medical steps. The process, however, does not include a nonbinary “X” option.

What the Plaintiffs Argue

Six nonbinary Puerto Ricans argue the policy denies them accurate birth certificates. They say the rule violates equal protection and privacy under the Fourteenth Amendment and also violates free speech. Their filing asks the court to compel the registry to allow an “X” marker so their documents match their identity, as other records can. Their case builds on earlier rulings that opened the door for gender marker corrections in the first place.

Advocacy groups say once the government lets some people change markers, excluding nonbinary people is unfair. They argue the state’s privacy and record rules can still hold if “X” is allowed. They also cite a district court decision that had ordered Puerto Rico to permit “X.” That order is now on appeal. Supporters frame the fight as about dignity and safety in daily life, such as school, work, travel, and health care forms.

How We Got Here and What Comes Next

Puerto Rico once barred any change to the birth-certificate sex entry. In 2018, a federal court required access to corrections for transgender people, and the registry set up a process. The next dispute became whether the system must include “X.” That pattern tracks other identity-document fights: first allow changes at all, then test how far recognition must go. The First Circuit’s final decision will decide if Puerto Rico must add “X,” or if its binary policy stands.

[Eugene Volokh] Puerto Rico Has Rational Basis for Allowing Only Two Genders for Birth Certificate Gender Changes https://t.co/DpshRIg5fz

— Volokh Conspiracy (@VolokhC) September 3, 2026

The stakes reach beyond one territory. States and territories face rising pressure to align identity documents across agencies and with federal standards. Governments cite fraud control, database limits, and record integrity. Plaintiffs cite accuracy and equal treatment. Many Americans on the left and right worry that systems feel built for bureaucrats, not people. This case will show whether courts defer to record-keeping rules or require broader recognition when technology and society change.