ACLU Foundation and the ACLU of Puerto Rico Back the Right of Nonbinary People to Accurate Identity Documents Before the First Circuit

Boston, Mass. - The American Civil Liberties Union (ACLU) and the ACLU of Puerto Rico appeared this Thursday before the U.S. Court of Appeals for the First Circuit in Boston to support the plaintiffs in the case of Ínaru Nadia de la Fuente Díaz et al. v. Jenniffer A. González Colón and to defend the right of nonbinary people to obtain birth certificates that accurately reflect their gender identity.

The participation of both organizations took place through an amicus curiae brief filed before the appellate court, as the government of Puerto Rico seeks to reverse the decision of the U.S. District Court for the District of Puerto Rico, which concluded that the Commonwealth’s current policy violates the right to equal protection of the laws by preventing nonbinary people from obtaining an “X” gender marker on their birth certificates.

During oral argument held Thursday, the ACLU of Puerto Rico was present to support that claim and to reiterate that this policy cannot be analyzed as a simple neutral administrative decision, but rather as a form of discrimination based on the identity of the affected individuals, which requires more rigorous constitutional scrutiny.

Currently, the government of Puerto Rico restricts the gender marker on birth certificates to “M” or “F,” referring to the male/female binary, and refuses to offer the “X” option, even when a person has other documents or certifications recognizing their nonbinary gender identity. For the ACLU Foundation and the ACLU of Puerto Rico, that exclusion imposes unequal treatment with concrete, everyday consequences.

“Denying a nonbinary person an accurate birth certificate is not a mere bureaucratic technicality. It is a policy that exposes that person to discrimination, forces them to live with inaccurate documents, and tells them that, in the eyes of the State, their identity does not deserve recognition,” said Fermín L. Arraiza Navas, legal director of the ACLU of Puerto Rico. “That is why we firmly support the plaintiffs’ demand for equality and dignity,” he added.

In their brief, the ACLU Foundation and the ACLU of Puerto Rico explained that nonbinary people are a subgroup within the transgender community, because their gender identity does not align with the sex assigned to them at birth. In the view of both organizations, specifically excluding nonbinary people from the possibility of obtaining accurate documents constitutes discrimination and should trigger, at a minimum, heightened intermediate scrutiny under the Equal Protection Clause.

The amicus brief also explains that transgender people, including nonbinary people, have faced a long history of marginalization, exclusion, and discrimination in fundamental areas of life, including employment, housing, access to services, family recognition, and full participation in public life. That history, they argued, confirms that this is a group entitled to more robust constitutional protection against government-imposed classifications.

“When the State insists on recognizing only certain identities as valid in its official documents, what it does is perpetuate exclusion. The Constitution requires far more when a public policy falls in that way on a historically marginalized group,” added Annette Martínez Orabona, executive director of the ACLU of Puerto Rico.

The ACLU Foundation and the ACLU of Puerto Rico also emphasized that offering an “X” gender marker does not create a special privilege, but rather provides the only real way for nonbinary people to have accurate identity documents. Preventing that correction, they argued, perpetuates an official system that recognizes only certain identities as legitimate, while excluding and stigmatizing those who do not fit within binary categories.