Attorney General Herring urges FBI to recognize non-binary individuals in uniform crime reporting

On June 29, 2021, Attorney General Mark R. Herring has joined a coalition of attorneys general in urging the FBI to add a new, non-binary gender designation to its Uniform Crime Reporting (UCR) system to protect non-binary individuals’ interests by affirming their gender identity and improve the accuracy of federal and state crime data collection.

“The rate of violence or harassment against non-binary individuals is already high, but too often, they may choose not to report an incident for fear of being misgendered throughout the process,” said Attorney General Herring. “We must make sure that non-binary individuals feel comfortable coming forward if they have been the victim of a crime, which is why I am joining my colleagues in calling on the FBI to immediately make this change, sending a strong message to non-binary Virginians and Americans that they are recognized and protected.”

The FBI generates national crime statistics by asking law enforcement agencies across the country to submit crime data to the UCR Program, which currently allows only male or female gender designations. As a result, law enforcement agencies encounter errors if they attempt to submit crime incident data in which individuals have been identified as non-binary.

In the letter to FBI Director Christopher W. Wray, Attorney General Herring joined 20 other attorneys general in asking that the FBI act swiftly to add an “X” gender code, which indicates that an individual is non-binary, to the UCR system to allow the states to affirm non-binary individuals’ gender identities when collecting and sharing crime data.

The letter observes that the lack of a non-binary gender designation in the UCR is “more than a ministerial inconvenience,” as refusing to recognize non-binary individuals’ gender identity in crime reporting is an affront to their dignity and may cause harm to their mental health and well-being. Adding a non-binary gender option would affirm the rights of non-binary individuals, who are frequently marginalized and made to feel invisible.

The current lack of a non-binary gender code in the UCR discourages law enforcement agencies from collecting data that accurately reflects the gender of non-binary individuals, as the UCR system rejects data containing gender codes other than male and female. Those agencies that do not recognize non-binary individuals’ gender in their crime data systems must either incur the cost of revising their data before submitting it to the UCR or underreport crime incidents when the UCR rejects some of their data.

Moreover, 22 states and the District of Columbia have now added an “X” gender option to the available gender options on driver’s licenses. The lack of a non-binary gender option in the UCR creates complications for law enforcement in these states, as they have no way to input an “X” gender marker into the UCR.

In addition to eliminating these logistical complications, changing the UCR system would also improve the accuracy of the FBI’s crime statistics overall by making available information about the criminal victimization of the non-binary population.

The letter acknowledges that the FBI has already begun to consider the addition of adding a non-binary gender designation to the UCR and calls on the FBI to promptly make this change.

Joining Attorney General Herring in sending the letter are the attorneys general of California, Colorado, District of Columbia, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington.