This legislative session, West Virginia lawmakers have advanced legislation to restrict what medical care transgender youth can receive and whether people can legally identify as transgender or non-binary. Another bill could lock up librarians for displaying books deemed “obscene,” a definition often used against books with LGBTQ+ themes or characters.
And on Wednesday, the Senate is set to send Gov. Jim Justice a bill for his signature that would require non-binary people to use inaccurate identity documents — specifically birth certificates, which would be a constant reminder that West Virginia’s government doesn’t believe their identity is valid.
HB 4233, sponsored by Del. Chris Pritt, R-Kanawha, states that birth certificates in West Virginia must list the person’s sex as male or female and will not allow non-binary.
Non-binary people are those who aren’t male or female; they may have characteristics of both or reject the idea that everyone fits neatly into two categories.
About one in 20 middle and high school students in rural Appalachia are non-binary, and they’re more likely to face hardships in life including child abuse and assault in adulthood.
Ash Orr, a non-binary person and community organizer, noted that people use identification documents like birth certificates to help them open a bank account or apply for social safety net programs. They said allowing for a non-binary designation on birth certificates “lets non-binary and intersex West Virginians know that their government sees them and honors who they are.”
And when non-binary people seek to complete normal acts of daily living like obtaining a driver’s license, if their appearance doesn’t reflect the sex listed on those documents, they could face difficulties, harassment or offensive questioning.
LGBTQ+ advocates and some elected Democrats have said banning non-binary on birth certificates will have little to no impact since West Virginia currently doesn’t allow the option.
But while Pritt agrees that the option doesn’t exist, he said his bill is preemptive. He doesn’t want West Virginia to allow that option in the future, as 16 other states do.
“It’s important for us to have an idea out there as to what individuals are based on their inherent biology,” he said, using counts by employers or the U.S. Census as examples.
LGBTQ+ advocates reject using terms like “inherent biology” or “biological sex” in discussions about non-binary people because they imply only the sex listed on a birth certificate at birth is correct.
Advocacy groups like LGBTQ+ rights group Fairness West Virginia have been more focused on bills that would have immediate consequences, although Jack Jarvis, spokesperson for the group, said it sends a harmful message.
The group told lawmakers they were more concerned about a broader piece of legislation that could result in effects like barring transgender people from using appropriate single-sex public spaces like bathrooms.
In 2021, the ACLU of West Virginia sued the state so that transgender people could change their birth certificates to reflect their gender. That effort was successful following a settlement and at the time, the group said they would work to ensure non-binary people had that option as well.
Eli Baumwell, acting director of the ACLU of WV, said that non-binary people had been in contact with them about wanting the option, but unfortunately, the ACLU can’t lobby on every piece of legislation.
But he also added that if the “heartless messaging bill” passes, a court ruling or new law could reverse it.
