Stop us if you have heard this one.

A man walks into a gun store…and attempts to legally purchase a firearm.

He provides a valid state identification. He selects the weapon he wants to buy and goes to the counter to complete the background check and fills it out.

The gun store employee begins to run the background check, but notices that the section for sex identification has been left blank.

The employee returns to the purchaser to seek clarification. The purchaser states he left it blank because he does not identify as male or female.

What do you do as the employee?

In a recent Q & A, the National Shooting Sport Foundation (NSSF) asked the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) some very direct questions about that very subject as it pertains to Department of Justice (DOJ) Form 4473, Firearms Transfer Record and block 6, Sex identification.

With several states now issuing gender neutral or gender binary identification cards, what should a handgun purchaser check for block 6?

There are also acceptable forms of identification that do not identify the cardholder’s gender, such as a military ID, making the identification verification that much more difficult when the firearms purchaser refuses to select either of the provided option.

The relevance of the questions posed by the NSSF only come into play in regard to DOJ Form 4473. Regardless of what is shown on the purchaser’s ID card, they must select either male or female.

By the regulations governing that form and the National Instant Criminal Background Check System (NICS), the purchaser may not check both boxes, leave both boxes blank or write in an alternate selection. By law, if the transferee “refuses to properly complete question 6, then the FFL may not transfer the firearm”.

Subsequently, question 31 allows the licensee (seller) to record any information that he/she finds necessary to conduct business.  The instructions do not imply that this section is to be used to address issues with any items that may conflict between the purchaser’s identification and question 6 or the licensee’s own perception.

The licensee may use this section to address an issue such as: purchaser’s identification lists male, the licensee perceives that the purchaser is male, yet the purchaser intentionally checks the box for female.

Incidentally, this form was changed in 2017 to reflect the usage of the word sex, rather than gender, in hopes of alleviating this type of scenario.

Should this type of identifier be a disqualification for the legal purchase of a firearm? As the current Gun Control Act stands, it is. Short of repeal or revision of the currently Act, identification of sex is a must to complete the federal background check that is necessary to legally purchase a firearm.

Below are the specific questions from NSSF and the answers from ATF, for those interested in the more technical explanation.

Question: If a transferee (consumer) presents a current, valid “non-binary” driver’s license as a form of government issued identification to establish their identity and proof of residency and then declines to select either “male” or “female” when answering Question 6, how is an FFL to proceed?

ATF’s Response: FFLs may accept non-binary identification documents The Gun Control Act (GCA) at 18 U.S.C. § 922(t)(1)(C) requires licensees to verify the identity of each transferee by examining a valid identification document of the transferee containing a photograph of the transferee. An identification document is defined by 18 U.S.C. § 1028(d) in relevant part as:

. . .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.

Question: What if in a state that does not issue non-binary driver’s licenses the transferee declines to select either “male” or “female,” how is the FFL to proceed? Or, if the transferee presents a current, valid driver’s license that indicates one sex but selects a different sex in answering Question 6? Or, if the photograph on the government issued identification, e.g. driver’s license, appears to depict one gender sex but the transferee selects a different sex in answering Question 6? What is the correct course of action in these scenarios for the FFL?

ATF’s Response: The regulations at 27 CFR 478.11 further defines Identification Document in relevant part as:

A document containing the name, residence address, date of birth, and photograph of the holder and which was made or issued by or under the authority of the United States Government, a State, political subdivision of a State. . .is of a type intended or commonly accepted for the purpose of identification of individuals.

Question: Is an otherwise properly completed Form 4473 valid if the consumer declines to answer Question 6?

ATF’s Response: Completing the ATF Form 4473 when non-binary identification documents presented The Regulations at 27 CFR 478.124 state in relevant part:

(c)(1) . . . shall obtain a Form 4473 from the transferee showing the transferee’s name, sex, residence address (including county or similar political subdivision), date and place of birth; height, weight and race of the transferee. (c)(3)(i) Shall verify the identity of the transferee by examining the identification document (as defined in §478.11) presented, and shall note on the Form 4473 the type of identification used;

Mitch McKinley is a man of faith, a patriot, a U.S. Army veteran, a member of The Federal Task Force on School and Workplace Shootings – Operation Innocence –, a husband and father of four. He owns his own technology and security consulting firm and is a proud to be a native Texan.