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  • Writer's pictureMilo Primeaux, Esq.

Victory! "X" Markers on NYS Birth Certificates

As of June 12, 2020, all people born in New York State can get a gender neutral "X" gender marker on their birth certificates!

This is a momentous step for all transgender, non-binary, gender-expansive, and intersex New Yorkers for whom a traditional "F" or "M" sex designation is simply not accurate.

Advocates have been working on this policy for well over a decade. The New York City Department of Health changed its policy in 2018, but folks born in any other part of the state were left without a way to obtain accurate vital records from the New York State Department of Health (NYS DOH)  -- until now.

In May 2018, Aisha Cruse -- a non-binary transgender person born on Long Island and who now lives in Massachusetts -- applied for an amended birth certificate with an "X" gender marker. At the time, the NYS DOH policy did not specify that only "F" or "M" were allowed, but nonetheless over a year and a half later, the agency finally and formally denied Mx. Cruse's application.

On March 19, 2020, Milo Primeaux, Esq., a queer trans civil rights attorney in Livingston County, New York, filed an Article 78 petition on behalf of Mx. Cruse asking a court to review the NYS DOH's decision. At almost the very same time, COVID-19 struck hard, and the courts shut down along with everything else. Once things were up and running again, the case was assigned to a judge and notice was served on the NYS DOH and the NYS Attorney General's Office (AG).

.Verified Petition Art 78 3-19-20 w
Download VERIFIED PETITION ART 78 3-19-20 W • 2.01MB

You can read Aisha's redacted Article 78 petition here.

The response was swift and positive. On June 12, 2020, the AG's office informed Mx. Cruse that in response to their petition, the NYS DOH agreed to issue Mx. Cruse an amended birth certificate and modify its policies for both adults and minors to allow gender neutral markers on state birth certificates!

NYS DOH Amended Birth Certificate Policy
Download • 181KB

Check out the NYS DOH policy for adults here.

This comes only a few months after the New York State AG announced that it was revising the state's policy to allow transgender adults and minors to amend birth certificates issued by the New York State Department of Health. Under this new policy, minors 16 years old and younger can amend their birth certificates through their parents, and individuals 17 years and older can amend their birth certificates on their own.

Aisha Cruse, a non-binary transgender person born in New York State, was determined to get a gender-neutral "X" marker on their birth certificate. Now they and all other transgender, non-binary, gender-expansive, and intersex folks born in New York can get one.

Mx. Cruse is thrilled with this result:

"It is a complicated joy to hold freedom in your hand. Even though I always believed that I was legally and morally in the right, I never expected to win this fight. I am deeply gratified that the Department of Vital Records and Statistics and the State of New York have recognized that they are legally required to issue me an accurate birth certificate, which they had no standing to deny me, or anyone, in the first place. Without the tireless, years-long work of millions of trans, intersex, and gender non-conforming activists, this would never have been possible. They have my deepest thanks. This is their victory too."

Milo echoes this sentiment:

"Without intentional effort to the contrary, laws and policies are never created with transgender, non-binary, gender-expansive, and intersex people in mind. We live in a world that prefers we didn't exist at all, and often works toward our erasure. But we do exist -- we're here, and we have a right to accurate government-issued identity documents and vital records just like cisgender and gender-binary people. This policy change is a huge step in the right direction, and I thank the NYS Department of Health and the Attorney General's Office for doing the right thing."

For more information about this policy change, contact Milo at (585) 612-1071 or email at

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