Oregon Nonbinary Advances

When Jamie Shupe’s attorney, Lake Perriguey of Law Works LLC, was told by Oregon judge Amy Holmes Hehn of the Multnomah County Circuit Court that Mr. Perriguey was “pushing the envelope” with a petition for his client to change his legal classification to nonbinary. Mr. Perriguey insisted that it their petition to allow Jamie’s legal records to reflect their gender was not really a push, but rather a sign that “the envelope just needs to get bigger.”

On June 10, 2016, Jamie’s petition was granted. This allowed them to change their legal sex/gender marker from “female” to “nonbinary” and is believed to be the first order from a state court to legally recognize the identity.

It’s helpful that Oregon law does not limit gender choices to “male” and “female” from the outset, but rather lets a judge order a legal change of sex. The process is, overall, similar to one for a name change; in fact, the two can be done at once. The petitioner simply submits the paperwork and pays a filing fee. Afterwards, a notice of their proposed change is posted for fourteen days. If the court determines that the person has undergone the appropriate surgical, hormonal or other treatment for the purpose of gender transition and that gender confirmation (referred to in the statute as “sexual reassignment”) is complete, a judgment indicating the change may be entered.

The law states, “A court . . . may order a legal change of sex and enter a judgment indicating the change of sex of a person if the court determines that the individual has undergone surgical, hormonal or other treatment appropriate for that individual for the purpose of gender transition and that sexual reassignment has been completed.”

The law in Oregon has been this way since 2013, and does not require that a person first undergo surgery specifically nor submit a doctor’s letter in order to change their sex/gender marker. However, it previously only recognized the words “male” and “female” as identifying words, even though it did not specifically limit gender designations to these two. Since Judge Hehn granted Jamie’s petitions, the forms provided by the count have been altered to include the non-binary designation. This is a fantastic example of how courts can influence the legislature to become more inclusive.

Jamie’s attorney hopes to continue working with them in order to get the state’s driver’s licenses and state-issued ID cards to include nonbinary options. Not having these sorts of documents and accurate records become barriers in so many ways. Yet, the DMV is also unprepared to change their system. In standard changes that go through legislatures, they study the case and prepare for what will change if a law passes. Without advance warning, they must now look into how this would not only affect their agency but other agencies that they work with and share data with.

The Oregon DMV asked that the state Department of Justic research how they needed to change to comply with the court’s decision, but they have not received much guidance and don’t have not have many jurisdictions to look at for examples. Only a few other cities and states have options where ID cards do not require gender designations but an actual non-binary designation is currently unheard of. They estimate that it will be months or more than a year before Jamie has an accurate license. Hopefully, when it does happen, more trans, gender nonconforming, and intersex people who identify as non-binary will have more options.

Jamie’s case is a prime example of how marginalized communities are consistently resilient until time catches up with their needs. Like binary transgender individuals, there is not binding federal protection for non-binary individuals. Although gender identity and sexual orientation have been interpreted to be included in the definition of sex, nothing will guarantee anti-discrimination recognition like being explicitly included as a protected class. That is why laws like the Employment Non-Discrimination Act (“ENDA”) are so vital. Protecting transgender—non-binary people included—people from discriminatory hiring and employment practices will not become the norm unless it is mandated. There must be a federal law announcing that discrimination against transgender people violates the Constitution. The Equality Act (“TEA”)would be even more powerful than ENDA, and was just reintroduced to Congress on May 2, 2017. TEA expands upon what is considered a public accommodation allowing for LGBTQ people to be protected in more places.

There are cases like Glenn v. Brumby that seek to establish that transgender people are protected from discriminatory practices done by the federal government. However, too frequently these cases are still tied to the gender binary. We must leave the notion of perfect plaintiffs behind to better represent the spectrum of gender that transcends those binary notions. Non-binary people still have more battles ahead of them than binary transgender people, but hopefully, with each legal win transgender people get, the fight for non-binary people will be just a tad easier.

(One Californian has received a non-binary gender marker since Jamie’s gender marker change was granted.)


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