Oregon court ruling is another win for nonbinary people

The Oregon Court of Appeals ruled this week that all circuit court judges must grant an X gender marker for nonbinary people who request it in legal documents as long as they take all of the necessary legal steps to register for the change.

The court wrote in its decision that someone’s new sex designation “must affirm the petitioner’s gender identity whether that is male, female, or nonbinary.”

Multnomah County Circuit Court Judge Amy Holmes Hehn had ruled in 2016 that a resident of Oregon could change their legal gender to nonbinary. It was the first legal ruling affirming the choice of nonbinary as a gender in the United States.

However, the new ruling ensures that all nonbinary residents of Oregon can petition courts without worrying that they will be denied.

“[The 2016] ruling was a big deal. This ruling is even bigger because now it says all circuit court judges in Oregon are required to grant this as a matter of law,” said Carl Charles, staff attorney at Lambda Legal, a civil rights organization focused on LGBTQ equality. “Nonbinary people in Oregon don’t have to wonder and do research and figure out, Oh, did my county circuit court rule on this?”

The case involved a nonbinary Oregonian, Jones Hollister, whose petition to change their legal gender to nonbinary was denied last year by Lane County Circuit Judge Charles Carlson. The ACLU of Oregon, Transgender Law Center, Basic Rights Oregon, Beyond Binary Legal, the Oregon Department of Justice, and a group of Oregon law professors all filed briefs supporting Hollister.

Hollister stated in a statement released by the ACLU, “When I saw that the Court of Appeals had reversed the decision to refuse me a nonbinary marker, I honestly cried. Until this morning I haven’t allowed myself to hope that we would win. This ruling does not make me nonbinary. I was nonbinary long before this case. But this ruling means that I will have court paperwork confirming my identity.”

Lorena Reynolds, managing attorney at the Reynolds Law Firm and Hollister’s attorney, said that in Lane County there have been at least 16 cases in which a request for a nonbinary legal gender marker was not granted. Nonbinary people have also decided to file in other counties or not to file at all to avoid the kind of experience Hollister had with Carlson.

“I would estimate that I am familiar with at least another two dozen people who have made this choice, some of who are excited to now be able to file in their home county,” Reynolds said.

According to the Corvallis Advocate, Hollister told Oregon Public Broadcasting that with the decision, nonbinary people are empowered to go into institutions that don’t have gender options on official documents besides male and female and point to a court case that backs up their request for other choices. “I can be like, ‘Look, this is a court case saying this is the fact, and so how do I make it so I am not lying on this paperwork for you? How are you going to change your paperwork so it has an option?'” Hollister said.

Caspian Nash, who is on the board of Beyond Binary Legal, a nonprofit founded to provide legal resources to nonbinary people, said they are pleased with the decision.

“Many folks whose lives do not fit neatly into ‘female’ or ‘male’ categories encounter a lot of confusion and uncertainty about how they fit into legal or administrative systems, leading to undue stress and frustration when doing something as simple as applying for an ID or filling out a form,” Nash said.

They added, “I see Oregon as part of a wave of change that we’ve been seeing in jurisdictions across the country. It’s exciting to see the progress!”

Oregon has been a leader in advancing legal rights for nonbinary people, but in the past few years, nonbinary people have made gains across the country in securing accurate documentation such as driver’s licenses. Nineteen states now allow nonbinary people to choose an X gender marker on their driver’s license, with Virginia Gov. Ralph Northam (D) in April signing a law that requires the state to provide such a marker.

“There have been some very surprising states to announce they provide X gender markers on state IDs, like driver’s licenses, and that has been where the majority of progress has happened,” Charles said. “We’re trying to find places to secure those kinds of court victories because it can be a long haul to wait for state legislatures to take it up on their next session.”

Published with permission of The American Independent Foundation.