(Reuters) - New York must face a lawsuit by a non-binary state resident who alleges the state has made it impossible to obtain an accurate driver's license by failing to provide an option for gender other than male or female.

U.S. District Judge Lewis Liman said the state's promise to introduce an "X" gender marker in a planned update to its computer system was not enough to moot the lawsuit by Sander Saba, a recent law school graduate who does not identify as male or female and uses the pronoun "they."

"We hope the state lives up to its commitment to equal treatment for non-binary New Yorkers; the court acknowledged that the State's promise to maybe fix the problem in the future is not enough to end this constitutional challenge," said Hannah Chanoine, a lawyer for Saba.

The New York Department of Motor Vehicles did not immediately respond to a request for comment.

Saba sued Governor Andrew Cuomo and the Commissioner of the DMV last July for violation of New York's Human Rights Law. They alleged that they wished to exchange a Pennsylvania driver's license for a New York one after moving to the state, as required by law, but were unable to do so because the state required them to inaccurately choose "M" or "F" as a gender marker.

The state moved to dismiss, arguing that the case was moot because it had already begun to overhaul its computer system to allow an "X" gender marker for non-binary people. It also said that it had offered a temporary solution of having a license with the X mark made manually, although the DMV's internal system would still have to record M or F.

Saba countered that was not adequate, since the inaccurate M or F marker in the system could still be accessible to, and used by, third parties like insurance companies and banks.

Liman rejected that challenge to the offered short-term compromise, finding that the problem of the DMV's internal records was raised only in the briefs and not in the complaint and thus could not be considered.

However, the judge said, neither the short-term solution nor the pledge for a long-term fix rendered the case moot, because the state had not established that the proposed modification "eradicates any harm allegedly caused by the gender marker policy in the present – even if it may eradicate such harm in the future."

The defendants, he said, "have not established that there is no reasonable expectation that the alleged violation will recur."

Liman did dismiss Saba's claims for monetary damages, finding they were barred by 11th Amendment's limitation of federal courts' jurisdiction over claims against states, but found that did not bar their injunctive relief claims.

"Lambda Legal is pleased to see that Mx. Sander Saba will get their day in court and that New York State's representations about what they might do in the future are not sufficient to dismiss this case," said Carl Charles of Lambda Legal, who also represents Saba.

The case is Saba v. Cuomo, U.S. District Court, Southern District of New York, No. 20-cv-05859.

For Saba: Omar Gonzalez-Pagan and Carl Charles of Lambda Legal; Hannah Chanoine of O'Melveny & Myers

For the state: Andrew Amer of the New York State Department of Law