NSSF Seeks Guidance From ATF

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. Neither statute nor regulation require the identification document contain the person’s sex. Therefore, identification documents issued with binary, non-binary, or no sex designation may be used as an identification document. For example, a military identification card is a valid identification document and does not contain a sex or gender; see ATF Ruling 2001-5. Accordingly, as long as licensees verify the identity of the transferee by examining a valid transferee identification document then they will be in compliance with the GCA at 922(t)(1)(C).

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; The regulations pertaining to the National Instant Criminal Background Check System (NICS) at 28 CFR 25.7 require the sex of the transferee in order to conduct a firearms background check. This information is captured on the ATF Form 4473, question #6, which requires the transferee to indicate his/her sex (not gender) by checking or filling in the applicable box adjacent to “Male” or “Female”. Transferees must select either “Male” or “Female”, but cannot choose both or write in “X” regardless of what is recorded on the transferee’s identification document. If the transferee refuses to complete question #6 then the FFL may not transfer the firearm.

FFLs may assist transferees by pointing them to the instructions on the ATF Form 4473 or other ATF provided guidance, but may not advise transferees what to record when completing the form. Each transferee must freely answer each question based on the headings, notices, instructions and definitions contained on the form.

Lastly, section 31 of the Form 4473 is available for the licensee to document information they feel is relevant to a transaction. A licensee may use this section to note if the sex or gender listed on the valid transferee identification document is not consistent with the information provided in section 6 of the Form 4473 or their own perception.

NSSF has requested that ATF issue formal guidance to the industry in the form of an open letter.