“Gender is not a binary” is a common scold in 2016, for the moments when some cisgendered acquaintance makes the wrong kind of comment at a party. But never in the U.S. has this truism borne the stamp of law.
In a case with far-reaching implications, a 52-year-old retired Army tank mechanic has upended our formalized definition of gender in America. Jamie Shupe of Oregon is now legally nonbinary—neither male nor female.
Shupe was born male and married a woman 29 years ago. Together they raised a child. Three years ago Shupe left the military and began a partial transition, according to NPR. They (the preferred pronoun) started taking hormone replacements and grew breasts, but never intended a full transition to a woman’s body. Thus, nonbinary.
A handful of countries around the world, including India and Germany, officially allow for a third option (Indonesia has five). The state of Oregon now joins the ranks.
Hayley Gorenberg, deputy legal director at Lambda Legal, says we’ve known that people didn’t always fit into tidy categories “since ancient times.” Still, government recognition is only just catching up. “They are starting to have dawning recognition that male and female is not the whole ball of wax,” says Gorenberg.
Lambda Legal is currently assisting a nonbinary person named Dana Zzyym, who is fighting for similar accommodations. Zzym, a Navy veteran, was born intersex; their birth certificate was left blank. They are looking for an appropriate listing on their passport.
Shupe’s legal process started when they applied for a nonbinary drivers license and got rejected. Shupe took the matter to the Multnomah County court, and won. The state of Oregon has declined to fight the ruling.
Instead, the matter now enters the minutia of bureaucracy; questions arise of what wording to use on license applications, how many gender boxes to offer. Gorenberg says many other countries offer an “x” option beyond male and female, something of a catchall category—or a way of saying n/a.
Chances are we’ll see many similar court cases in years to come, where everything from passport applications to hospital paperwork bears scrutiny. Gorenberg hopes this raises an important question: Do many of our forms need a gender classification to begin with?
“It’s possible gender fields have been gratuitous for a long time,” she says. “But if we are going to include them, they should at least be accurate.”
