The state Office of Temporary and Disability Assistance is being sued because it hasn’t recognized the NYC law allowing individuals to choose the third gender option of X instead of the traditional M or F on its applications and forms.
“We need to get to the bottom of this. We need to find out why they are doing this,” said Jose Abrigo, a lawyer with Legal Services NYC, which represents poor and LGBTQ plaintiffs.
The legal services provider filed an Article 78 petition in Manhattan Supreme Court on Dec. 18 to “get to the bottom” of the agency’s policy, which goes against Gov. Cuomo’s own stated support of transgender rights.
Abrigo said Cuomo “should be ashamed” that OTDA does not allow the “X” designation. “There’s thousands of people living in New York City who are transgender and enrolled in government benefits.”
Last year, Mayor Bill de Blasio and the City Council approved a law adding the non-binary X category to birth certificates. The NYC Health Department said the non-binary X category can be used as an option on death certificates beginning next year.
Abrigo said they’ve had clients who changed their birth certificate to ‘X’ and would take that to a city Human Resources Administration office — which is overseen by OTDA — and request that their public benefits documents be changed to the ‘X’ marker. They were told, “We honor your identity but we cannot change your gender marker to X and they have to choose male or female,” Abrigo said. “In each public benefits case, someone is coded male or female and that literally determines a lot of the benefits you are entitled to and how the agency interacts with you in their letters and communications.”
The governor’s office referred The Post to OTDA, which said in a statement: “The state ensures the right to access to services regardless of gender identity or expression and that is made clear to anyone seeking our assistance. The gender marker selected … has no bearing on service eligibility and is only for our internal computer system which at this time only has a binary option. We are supportive of the local law and OTDA is in the midst of a much-needed multi-million dollar software upgrade which, when completed, will include the third gender option.”
The city’s gender-marker revision builds on policy changes the city has made since 2014 to acknowledge the identity of transgender New Yorkers — by removing the requirements for a legal name change and sex conversion surgery to mark the gender of their choosing.