ATF: No, Queer People Can’t Refuse to Identify as Male or Female When Buying a Gun

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Recently, someone at the NSSF decided to ask the Bureau of Alcohol, Tobacco, Firearms and Explosives about genderqueer firearm purchasing. For example, let’s say an individual walks into a gun store with one of the non-binary drivers’ licenses that are issued in certain jurisdictions.

Legally, on both the driver’s license and birth certificate, that individual’s sex is listed as “X” for non-binary. As the ATF clarified, those driver’s licenses DO count as valid identification documents as defined by 18 U.S. Code § 1028:

…a document made or issued by or under the authority of the United States Government … when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals.

However, when it comes to the NICS background check, a male or female identification is required on ATF form 4473. There’s no non-binary option “X”, and prospective gun buyers may not leave box 6 blank. That’s because all entries in the NICS database are coded as male or female, and that can’t be changed without a system-wide overhaul. So, FFLs may not transfer firearms to individuals who refuse to identify as male or female.

That said, section 31 of form 4473 permits the licensee to document any additional information they believe is relevant, and that would be the place to note a discrepancy between non-binary sex on the driver’s license and binary identification on the transaction form.

So, now you know.

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