Multiple countries legally recognize non-binary or third gender classifications. These classifications are typically based on a person's gender identity. In some countries, such classifications may only be available to intersex people, born with sex characteristics that "do not fit the typical definitions for male or female bodies."

History In recent years, some societies have begun to legally recognize non-binary, genderqueer, or third gender identities. Some non-western societies have long recognized transgender people as a third gender, though this may not (or may only recently) include internationally recognized legal rights for such people. This has much more to do with the nature of the legal system towards gender than the nature of the societies towards it, as referenced by the distinct cultural place and societal recognition privileging members of the third gender in non-Western societies which recognize them—five examples being pre-colonial Inca Qariwarmi, Pali pandakas, androgynes in the Talmud, Hijras as described further below, and the Inuit third gender.

Among western nations, Australia may have been the first to recognize a third classification, with Alex MacFarlane, who is intersex, receiving a passport with sex marked as indeterminate in 2003. Transgender advocate Norrie May-Welby was recognized as having unspecified status in 2014. In 2016, an Oregon circuit court ruled that Elisa Rae Shupe could legally change gender to non-binary.

Transgender people

The Open Society Foundations published a report, License to Be Yourself, in May 2014, documenting "some of the world's most progressive and rights-based laws and policies that enable trans people to change their gender identity on official documents." The report comments on the recognition of third classifications, stating:

The document also quotes Mauro Cabral of Global Action for Trans Equality:

The report concludes that two or three options are insufficient: "A more inclusive approach would be to increase options for people to self-define their sex and gender identity."

Intersex people

Like all individuals, some intersex individuals may be raised as a particular sex (male or female) but then identify with another later in life, while most do not. A 2012 clinical review suggests that between 8.5 and 20% of persons with intersex conditions may experience gender dysphoria, distress or discomfort as a result of the sex and gender they were assigned at birth. Australian sociological research published in 2016 shows that 19% of 272 people born with atypical sex characteristics participating in the study selected an "X" or "other" option, while 52% are women, 23% men and 6% unsure.

According to the Asia Pacific Forum of National Human Rights Institutions, few countries have provided for the legal recognition of intersex people. The Asia Pacific Forum states that the legal recognition of intersex people is firstly about access to the same rights as other men and women, when assigned male or female; secondly it is about access to administrative corrections to legal documents when an original sex assignment is not appropriate; and thirdly, while opt in schemes may help some individuals, legal recognition is not about the creation of a third sex or gender classification for intersex people as a population.

In March 2017, an Australian and New Zealand community statement called for an end to legal classification of sex, stating that legal third classifications, like binary classifications, were based on structural violence and failed to respect diversity and a "right to self-determination". It also called for the criminalization of deferrable intersex medical interventions.

By jurisdiction Many countries have adopted laws recognizing non-binary gender identities.

Africa

Kenya In 2022, Kenya passed the Children Act 2022, requiring an "I" gender marker for intersex people.

Asia

India

The Hijra of India are probably the most well known and populous third sex type in the modern world – Mumbai-based community health organization The Humsafar Trust estimates there are between 5 and 6 million hijras in India. In different areas they are known as Aravani/Aruvani or Jogappa. Often (somewhat misleadingly) called eunuchs in English, they may be born intersex or apparently male, dress in feminine clothes and generally see themselves as neither men nor women. Only eight percent of hijras visiting Humsafar clinics are nirwaan (castrated). Indian photographer Dayanita Singh writes about her friendship with a Hijra, Mona Ahmed, and their two different societies' beliefs about gender: "When I once asked her if she would like to go to Singapore for a sex change operation, she told me, 'You really do not understand. I am the third sex, not a man trying to be a woman. It is your society's problem that you only recognize two sexes.'"Myself Mona Ahmed. by Dayanita Singh (Photographer) and Mona Ahmed. Scalo Publishers (September 15, 2001). Hijra social movements have campaigned for recognition as a third sex, and in 2005, Indian passport application forms were updated with three gender options: M, F, and E (for male, female, and eunuch, respectively).'Third sex' finds a place on Indian passport forms, The Telegraph, March 10, 2005. Some Indian languages such as Sanskrit have three gender 'options'— specifically masculine, feminine and neuter forms of nouns.

In November 2009, India agreed to list eunuchs and transgender people as "others", distinct from males and females, in voting rolls and voter identity cards. On April 15, 2014, the Supreme Court of India recognized a third gender that is neither male nor female, and as a class entitled to reservation in education and jobs, stating "Recognition of transgenders as a third gender is not a social or medical issue but a human rights issue." This verdict made India one of the few countries to give this landmark judgment.

In addition to the feminine role of hijras, which is widespread across the subcontinent, a few occurrences of institutionalized "female masculinity" have been noted in modern India. Among the Gaddhi in the foothills of the Himalayas, some girls adopt a role as a sadhin, renouncing marriage, and dressing and working as men, but retaining female names and pronouns. A late-nineteenth century anthropologist noted the existence of a similar role in Madras, that of the basivi.Fawcett, Fred (1891). On Basivis: Women Who, through Dedication to a Deity, Assume Masculine Privileges. Journal of the Anthropological Society of Bombay (July). Bombay: Education Society's Press; London: Treubner. However, historian Walter Penrose concludes that in both cases "their status is perhaps more 'transgendered' than 'third-gendered.'"

In April 2014, Justice KS Radhakrishnan, of Supreme Court of India declared transgender to be the third gender in Indian law, in a case brought by the National Legal Services Authority (Nalsa) against Union of India and others. The ruling said:

Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex. Our society often ridicules and abuses the Transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society's unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change.

Justice Radhakrishnan said that transgender people should be treated consistently with other minorities under the law, enabling them to access jobs, healthcare and education. He framed the issue as one of human rights, saying that, "These TGs, even though insignificant in numbers, are still human beings and therefore they have every right to enjoy their human rights", concluding by declaring that:

Hijras, Eunuchs, apart from binary gender, be treated as "third gender" for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature. Transgender persons' right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.

Japan Non-binary gender is not legally recognized in Japan. Official documents, such as birth certificates and identification cards, require individuals to have binary entries.

A foreign resident holding a foreign passport with "X" in the gender field will have this reflected on their residence card. In this case, the gender field on the residence card will be left blank, with "Gender X" indicated on the back of the card.

Nepal

On 27 December 2007, the Supreme Court of Nepal issued a decision mandating that the government scrap all laws that discriminated based on sexual orientation and/or gender identity and establish a committee to study same-sex marriage policy. The court also established a third-gender category. Nepalese official documents afford citizens three gender options: male, female, and "others". This may include people who present or perform as a gender that is different from the one that was assigned to them at birth. Nepal's 2011 census was the first national census in the world to allow people to register as a gender other than male or female. However, it was reported that "logistical problems, discrimination on the part of census-takers, and fear among some third genders" were interfering with the process, and eventually the census was published only listing male and female, leaving non-binary people outside or forcing them in a gender that was not their own. The 2007 supreme court decision ordered the government to issue citizenship ID cards that allowed "third-gender" or "other" to be listed. The court also ordered that the only requirements to identify as third-gender would be the person's own self-identification. "Legal provisions should be made to provide for gender identity to the people of transgender or third gender, under which female third gender, male third gender and intersexual are grouped, as per the concerned person's self-feeling"

More recent material indicates that this third option is not available to intersex persons.

Pakistan

In Pakistan, the polite term is khwaja sara or "khwaja sira" (Urdu: خواجه سرا), as hijra and khusra are considered derogatory by the khawaja sara community and human rights activists in Pakistan."Khwaja Sira Activism: The Politics of Gender Ambiguity in Pakistan" by Faris A. Khan (2016) in TSQ 3 (1–2): 158–164. As most of Pakistan's official government and business documents are in English, the term "third gender" has been chosen to represent individuals (either male or female, neither, and/or both) that identify themselves as, transsexual, transgender person, cross-dresser (zenana in Urdu), transvestite, and eunuchs (narnbans in Urdu).

In June 2009, the Supreme Court of Pakistan ordered a census of khawaja sara, who number between 80,000 and 300,000 in Pakistan. In December 2009, Iftikhar Muhammad Chaudhry, the Chief Justice of Pakistan, ordered that the National Database and Registration Authority issue national identity cards to members of the community showing their distinct gender. "It's the first time in the 62-year history of Pakistan that such steps are being taken for our welfare", Almas Bobby, a khawaja sara association's president, said to Reuters, "It's a major step towards giving us respect and identity in society. We are slowly getting respect in society. Now people recognize that we are also human beings."