ACLU Foundation and ACLU of Puerto Rico file amicus brief in the First Circuit to defend the right of nonbinary people to accurate identity documents

San Juan, P.R. – The American Civil Liberties Union (ACLU) and the ACLU of Puerto Rico filed an amicus curiae brief before the U.S. Court of Appeals for the First Circuit in the case Ínaru Nadia de la Fuente Díaz v. Jenniffer A. González Colón, in support of the plaintiffs challenging the Commonwealth’s policy that prevents them from obtaining birth certificates that reflect an “X” gender marker for nonbinary people.

Currently, the Government of Puerto Rico restricts the gender marker on birth certificates to “M” or “F,” referring to the male/female binary, but refuses to offer the “X” option, even when a person has other documents or medical certifications recognizing their nonbinary gender identity.

The U.S. District Court for the District of Puerto Rico has already determined that this policy violates the right to equal protection of the laws, although it applied the more deferential rational-basis standard of review. The amicus filed by the ACLU and its Puerto Rico affiliate asks the First Circuit to affirm the decision, while making clear that this policy must be reviewed under a more rigorous standard because it is based on the transgender identity of those affected.

“In Puerto Rico, everyone has the right to have the government respect who they are and to live without fear of discrimination. Refusing to recognize nonbinary people’s gender identity on birth certificates is not a mere administrative detail—it is a way of erasing their existence and exposing them to more violence and exclusion,” said Fermín Arraiza Navas, legal director of the ACLU of Puerto Rico.

The brief explains that nonbinary people are a subgroup of transgender people because their gender identity does not align with the sex assigned to them at birth. By specifically excluding those with a nonbinary identity from the ability to obtain accurate documents, the Government subjects them to unequal treatment with real consequences in everyday life—from school or work to access to basic services and daily interactions with government agencies.

“When the State discriminates against trans and nonbinary people, the Constitution requires heightened scrutiny and robust protection of their rights,” Arraiza Navas argued.
The ACLU and the ACLU of Puerto Rico maintain that the Government’s policy triggers at least intermediate scrutiny because it discriminates against a historically marginalized group—trans people, including nonbinary people—that has endured decades of laws and policies that criminalize them, deny them employment and housing, limit their right to family life, and exclude them from public spaces.

The amicus details how this history of discrimination—together with the fact that being trans bears no relation to a person’s ability to contribute to society, and that trans people are a minority with little political power—meets all the criteria the Supreme Court has used to recognize quasi-suspect classifications under the Equal Protection Clause.

The brief also underscores that offering an “X” marker is not a special privilege, but the only real way for nonbinary people to have truthful identity documents, in the same way that allowing same-sex couples to marry was the only real path to equal access to marriage. The ACLU and the ACLU of Puerto Rico argued that preventing nonbinary people from correcting their birth certificates perpetuates an official documentation system that recognizes only certain identities as valid, while excluding and stigmatizing those who do not fit within binary categories.