New guidance from the BATFE

[Aguila Blanca]

I just received the following by e-mail from the NSSF:

Good morning,

NSSF requested information from the ATF related to the proper completion of a firearm transaction when a non-binary driver’s license or conflicting information regarding sex or gender is provided by the transferee. Below are our questions, and the response from the 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.

With regard to the third question: "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'.":

What's the legal distinction between "sex" and "gender"?

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<<<TFL STAFF>>>
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[Aguila Blanca]

Originally Posted by zukiphile

I think that form asks other odd questions too. I have to spell out my county name in an unconventional manner, ...

How many names and spellings does your county have? My county has always been called the same thing since the American Revolution, and as far as I know there has never been an alternate (or "unconventional") spelling.

[zukiphile]

How many names and spellings does your county have?

One. The departure from address convention is the requirement that one spell out city, county and state without abbreviation.

[spacemanspiff]

I looked up antonyms for 'binary', and one that came up on www.powerthesaurus.org is 'gender ninja'. That's cool!

But I digress. Seems to me that there are potentially two issues at the heart of completing a sale by a FFL. First, you have the completion of the 4473, and the ATFs guidance seems clear if the purchaser does not provide an answer to question 6. This is not discriminatory.
What is not at issue here, nor relevant even though the ATF mentions is, is section 31. Who really cares if the purchaser indicated on the form a gender/sex that did not appear to match the visual presentation?

The second issue, as I see it, has to do with calling in the NICS on the transfer. As I recall, the gender/sex is inquired about at this point. If a purchasers name, date of birth, resolved and is good, but the gender/sex indicated fails to match the information that may be in the NICS database, would that result in a denial or cancellation by NICS? And again, this would not be discriminatory. Its a matter of matching up backgrounds to a purchaser.

[Aguila Blanca]

Originally Posted by zukiphile

One. The departure from address convention is the requirement that one spell out city, county and state without abbreviation.

Oh. That's not "unconventional" -- that's just asking for the proper name rather than a USPS abbreviation. When newspaper articles refer to your county, do they use the USPS abbreviation? Around here, county names in newspaper articles are always spelled out in full.

[Glenn E. Meyer]

Following the staff warning, I have deleted several posts that went off topic or were attempts to be funny.

Stay on topic. Social commentary on the issue or nonlegal issues are not needed.

[dogtown tom]

zukiphile …….. is the requirement that one spell out city, county and state without abbreviation.

What requirement?
Commonly used abbreviations are perfectly fine on the Form 4473 and ATF even uses one as an example.
Further, they give this advice to FFL's regarding abbreviations:

ABBREVIATIONS
ATF has received a number of inquiries regarding the use of abbreviations on ATF Form 4473 (Firearms Transaction Record) and in the acquisition and disposition (A&D) book entries. As a general rule, abbreviations should be avoided on Form 4473 or in entries in the A&D book. This is to avoid confusion or prevent providing an incomplete record. However, there are a number of abbreviations that are allowed.

The use of standard postal State abbreviations (i.e. AK, DE, VA, TX, etc.) or an easily and readily recognized abbreviation such as Mass. for Massachusetts is permitted. Additionally, the use of D.L. to denote “driver’s license” and O.P. to denote “operator’s permit” are also permitted. In general, if an abbreviation is legible and readily understood it would be acceptable. However, if the abbreviation is not understood, you will be told not to utilize it and continued use will result in either the issuance of a report of violation for the appropriate recordkeeping provision or other appropriate action.

As a rule of thumb, if you are unsure as to whether or not an abbreviation is readily understood, the abbreviation should not be used. Please keep in mind the importance of these records to law enforcement and the need to understand the abbreviations if you go out of business. It is important that the entries are written legibly and completely so everyone can understand them. ATF thanks you for your efforts.

[Frank Ettin]

Closed pending further staff discussion