Gender X on a birth certificate

Traditionally in the Netherlands, a birth certificate only has two options for gender, either male or female. However, not everyone identifies as male or female. Non-binary people may now, under certain circumstances, request for gender ‘X’ to be put on their birth certificate and passport instead of male/ female.

Which steps need to be taken to request gender ‘X’ on your passport?

At this time, the gender as stated on the birth certificate can only be changed by a court order. This means that you need a lawyer to petition the court on your behalf to change your birth certificate.

The petition consists of two parts. In the first part the request will elaborate upon your personal story and the reasons you wish state X as your gender. The second part contains legal arguments to back up your personal story.

The most important aspect of the petition is your personal explanation why you do not identify as either male or female. You do not need an expert statement from a medical professional confirming that you do not identify as male or female in order to apply for an X on your passport.

How long does it take?

The duration of court proceedings can vary. The process can take more than a year in the worst case.

After the court has permitted the change of your birth certificate, an appeal period of three months starts. The municipality where your birth is registered is obliged to wait these three months before they change your birth certificate. Once your birth certificate has been changed, you can apply for a new passport with gender X.

What is the legal basis of the gender change?

There is no specific legal basis for requests regarding the change of gender in your birth certificate to an X. This option has been created by lower courts in case law based on international human rights treaties.

Currently, the law allows for people to change their gender after a sex change. They can simply request the municipality to do so with an expert opinion confirming the sex change.

Moreover, in rare cases children can be born with organs that belong to both sexes. In such cases, the law allows for the birth certificate to state ‘the sex has not been determined’, which leads to the gender being noted as ‘X’ on the birth certificate.

However, most people that do not identify as male or female, but as non-binary, strictly physically speaking can be identified as either being male or female. Hence, none of the above is directly applicable.

The Dutch courts step up for gender X

According to the courts, the current law does not sufficiently reflect our modern society. People should be able to put an ‘X’ as their gender on their birth certificate if they do not identify as male or female. The courts concluded that the current law should be applied in a wider context. Therefore, requests will be granted if:

(i) it is apparent from the request that the applicant has an ambivalent gender and
(ii) the applicant has made it plausible that he/ she feels neither male nor female.

The Dutch Supreme Court has recently refused to sanction the approach of the lower courts. In March 2022 it stated in a test case that it is the task of the government to change the law. This is another signal to the legislator about the very much-needed legislative change. Parliament needs to create a legal basis for the registration of an X as gender. Preferably in combination with an easily accessible procedure that does not require lawyers.

The Supreme Court did not, however, overturn the current practice of the lower courts whereby the court individually tests whether a person’s gender can be changed to X. Therefore, legal proceedings to change gender remain possible in the meantime. There has recently been an increasing number of cases in which courts granted such requests.

A bill to change of law has been proposed, but it is unclear if it has enough support to pass through parliament.

How can we help?

If you would like to officially change your gender to ‘X’ on your birth certificate and passport, please feel free to contact us to discuss the next steps.

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