The First Circuit Court of Appeals is denying accurate gender markers for nonbinary people born in Puerto Rico, with new reasoning that has not been seen in other trans rights cases. The ruling claims to protect the privacy of nonbinary people by denying them accurate gender markers on birth certificates. Critics say the ruling might do the opposite and lead to the erasure of nonbinary people instead. 

The case was sent back to the U.S. District Court for Puerto Rico for further debate.

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“This case is about the fact that every person should have access to government-issued identity documents that reflect their true identity, including nonbinary people,” said Omar Gonzalez-Pagan, Senior Counsel and Health Care Strategist for Lambda Legal. “We are disappointed by the First Circuit’s decision, but this is not the end of the line or this case. The court reversed the district court’s ruling, recognizing that Puerto Rico’s policy prohibiting nonbinary people from having birth certificates that accurately reflect their identity violates our Constitution under even the lowest level of scrutiny.

In 2018, a federal court in Puerto Rico ruled that trans people could change their gender markers on their birth certificate and choose between “M” or “F.” Part of the reasoning in that case was that trans people faced a risk to the right to privacy if they were forced to provide documentation that included an incorrect gender marker and outed them as trans.

However, that didn’t help nonbinary people who want an “X” for their gender marker. In 2023, six nonbinary Puerto Ricans filed a lawsuit against Puerto Rico’s government, requesting that they be able to update their gender markers to accurately reflect their gender identity.

In June 2025, the U.S. District Court for Puerto Rico ruled in their favor, holding that the Puerto Rican government’s refusal to update birth certificates with an “X” gender marker violated the Equal Protection Clause of the U.S. Constitution because it denied them a right available to others.

“Their request is simple: to be permitted to have a gender marker on their birth certificate that reflects their true gender identity, like everyone else,” the court wrote at the time. “Puerto Rico’s current Birth Certificate Policy is not supported by a rational basis, and therefore violates the Equal Protection Clause of the Fourteenth Amendment.”

However, in January 2025, Puerto Rico elected a Republican governor, Jenniffer González-Colón. Although she had previously supported LGBTQ+ rights and initially avoided commenting on the nonbinary recognition court case, the Puerto Rican government filed an appeal in July. González-Colón then instituted the most drastic gender-affirming care ban in the country, banning all forms of gender-affirming care for any trans person under the age of 21.

In a surprising ruling earlier this month, the 1^st Circuit Court of Appeals ruled that the Puerto Rican government’s policy against “X” gender markers on birth certificates did in fact meet the standards for rational basis.

The primary motivation for this came from a strange logic applied to how incorrect birth certificates might affect the privacy of binary trans people versus nonbinary people. For the 2018 case, incorrect gender markers were seen as a privacy issue for trans people, as using a birth certificate as a form of identification, including to obtain other ID, had a high probability of outing the person as trans.

In comparison, the 1^st Circuit found that an “X” gender marker would by necessity out the individual as nonbinary. Their rationale overlooked that many nonbinary people would rather not out their sex assigned at birth, and the choice of whether to have an ID that acknowledges them as nonbinary should be theirs. The lack of the gender marker also denies them self-identification.

This ruling does not provide a final decision on the original case. The matter will now return to the court in Puerto Rico, where the justices will decide which standard of review applies. Rational basis review is the lowest standard, which effectively allows the government to take actions that might discriminate against some people and be given the benefit of the doubt that it wasn’t malicious. If the District Court applies a higher standard, nonbinary Puerto Ricans can still get a favorable outcome.

Unfortunately, the continuation of the case does not mean that nonbinary people and the wider trans community are safe from harm. Aleksandra Vaca of Transistics reports that two days after the ruling, the governor celebrated the decision and the government website removed all information about updating gender records, including binary ones.