November 17 2018
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Jamie Shupe of Portland Becomes First Legal Non-binary person
by Donna Millsap - The Oregon Herald
  Wednesday May 24, 2017 - 1:53 PM
PORTLAND, Oregon - It had to happen eventually. Now a person has legally become a NO GENDER human. Not a male. Not a female. Jamie Shupe has been given court approval to legally remove the male or female designation.

In writing this story, I found it difficult to refer to ah, her, he, it. This creates a new set of concerns as well as the new designation. The word "it" will certainly not work.

"I have my life back," Shupe said. "I'm not a male. I'm not a female. I am the first official genderless person in the United States.

Shupe seems to be the first person in the United States who has successfully petitioned for a non-binary gender classification, according to Hayley Gorenberg, deputy legal director for Lambda Legal, a New York-based gay rights organization.

"Classic gender markers don't fit everybody," Gorenberg said, calling the petition significant for helping people "exist without labels that don't accurately describe them".

At a recent support group meeting in Portland, where Shupe lives, a young woman tearfully thanked Shupe for broadening the conversation about gender classifications. Shupe, a former army sergeant assigned male at birth and listed as female in discharge papers, told the woman, "I didn't do this just for myself."

Shupe, who prefers the pronoun "they", grew up in southern Maryland, in a family with eight children. Shupe recalls feeling like an outcast, being admonished for acting like a "sissy" and without any role models, struggling to articulate feelings of a gender mismatch. At age 49, retired from the military, married to a woman and raising a daughter, Shupe began to unravel.

"I felt like I was at a breaking point," Shupe said, "like I was trapped."

With a supportive spouse, Shupe moved to a secluded cabin in the woods and began taking hormones.

"I figured I was a transgender woman. My thinking was, well, I'm not a male," Shupe said.

Shupe took the judge's order to Oregon's DMV and requested a new ID, a series of events that felt like it "came out of the blue," DMV spokesman David House told the NewsHour Weekend last August.

The agency began researching, studying state laws and figuring out how to update its electronic record-keeping system, which dates to the 1960s. It also consulted with local law enforcement, insurance companies and other agencies that share data on sex and gender.

With support from LGBTQ advocacy group Basic Rights Oregon, the agency decided its third option would be "X," which already exists on driver's licenses in Ontario, Canada, along with passports issued by New Zealand and Australia. The "X" option for passports is permitted by the International Civil Aviation Organization, an agency of the United Nations.

Shupe's court order encouraged other people to seek legal non-binary status, including Sara Kelly Keenan of Santa Cruz, California, who became the second legally non-binary person last September. The Intersex and Genderqueer Recognition Project, who represented Keenan, helped secure court orders for more than 20 others, many of them in California and Oregon. And in March, the Multnomah County Court in Oregon — the same court that granted Shupe's change — also granted a Portland resident a legal change to agender, another first for the U.S.

READ NEXT: In California, non-binary activists pushing for ID options reach new frontier

The DMV held several public hearings to gather input, where residents have given "overwhelmingly positive" feedback, House said. The Oregon Transportation Commission is expected to vote to approve the change on June 15, the final step in the process.

If they do, the "X" option could be available in Oregon as soon as July 3, House said.

This would make Oregon the first state to offer it, while activists continue to push for other state and national precedents to expand definitions of gender.

In 2015, Army veteran Dana Zzyym — who, like all other non-binary people quoted in this piece, uses the pronoun "they" — sued the State Department after being denied a passport that would reflect that they are non-binary and intersex. A federal judge ruled in Zzyym's favor in November, requiring the State Department to re-examine its policy.

In a hearing for that case last July, attorney Ryan Parker, representing the U.S. Department of Justice, noted that there was no existing precedent in the U.S. but said that if a state made one, it "may be grounds upon which the State Department may want to reconsider its policy."

Since then, state lawmakers in California have also introduced SB 179, which would add an additional category for non-binary residents on driver's licenses.

Douglas Lorenz, media director at the Intersex and Genderqueer Recognition Project, said he anticipated a "ripple effect" following Oregon's change. "The second state to do this will have the benefit of Oregon's work to make this happen," he wrote in an email to the NewsHour Weekend.

Lambda Legal, who represented Zzyym in the national suit, is currently waiting for further updates from the State Department, which declined to comment.

Worries about health care, housing and safety

This new legal status is significant for activists pushing for recognition of a range of gender identities. But it has also raised questions for people, non-binary and otherwise, who are unsure of how hospital systems, housing and other institutions will react to an ID that reads "X."

Julia McKenna, a housing advocate based in Salem, Oregon, submitted a 13-page public comment to the DMV on May 10, requesting that the agency further research how the "X" option would interact with housing, educational institutions, employers, law enforcement and health care.

"Unfortunately, the systems that overlap are not up-to-date in being able to serve non-binary people or ensure equal access to services," McKenna, who is non-binary, wrote. "This becomes an alarming legal issue if non-binary people are further marginalized and unable to access systems and services that they are entitled to under civil rights laws covering non-discrimination in government services."

To give people the "X" option before doing this research, McKenna said, "would be unconscionable, lazy, and sloppy."

McKenna added to the NewsHour Weekend, "You're essentially asking non-binary people, who are already experiencing disproportionate amounts of discrimination and violence, you're asking them to be your guinea pig."

McKenna said they worry that a person with an "X" on their ID could be denied access at a men's or a women's shelter. Other housing, such as re-entry housing and housing for drug and alcohol treatment, is sometimes segregated by gender.

READ NEXT: The complications of ID for non-binary people — and how it could change soon

Allan Lazo, executive director of the Fair Housing Council of Oregon, said the council is planning to reach out to shelters to educate them on the change if it becomes reality. "System-wide, this is such an evolving area. Folks really need to pay attention to what their policies and practices are," Lazo said.

Meanwhile, health providers may not be set up to accommodate this change, said Amy Penkin, Transgender Health Program supervisor at Oregon Health & Science University.

An increasing number of hospitals around the country have added options for gender in the electronic systems where they track patient data, including Oregon Health & Science University, but not all of them.

And some insurance providers might not be set up to accommodate "X" IDs, which "could generate mismatches" between hospital and insurance data and potentially delay coverage, she said.

Keuroghlian of Fenway Health said that state employees and health workers who will be encountering these IDs will need training on non-binary gender identities. "This approach is only going to be as effective as the cultural competence of the staff that's implementing it," Keuroghlian said.

Nina Nolen, a 25-year-old non-binary Portland resident, received their first driver's license this month. Nolen said it felt "weird" to choose between M and F and that they would be interested in the "X" option.

The third option could be more accurate for non-binary or some trans people, but could also draw unwelcome attention to their identity in potentially unsafe situations, Nolen said. "All of this is based on the idea that people would feel safe enough in their community marking the "X', essentially coming out to the DMV employee, and coming out to every cop every time if they get stopped for whatever reason," Nolen said.

These concerns are outside of the purview of what the DMV set out to do, which was provide a third option with public input, said House.

NEXT: Nation's first known "intersex' birth certificate issued in New York City

And Heather Betz, the supervising attorney for the LGBT Law Project at the New York Legal Assistance Group, pointed out that trans and non-binary people have always faced challenges in health care and housing. Without dismissing issues that have been raised, she said having a more accurate ID is a good first step toward equality.

"People have always existed outside of gender norms and outside of the binary but we have rendered them invisible for so long," Betz said. "Now, people are standing up and saying, "This doesn't represent me.'"

Wednesday morning, Piers Morgan engaged in a debate with two nonbinary people on Good Morning Britain, at times appearing combative and defensive in asserting his ideas of gender.

Rather than focus on the reality of the couple's gender, Morgan posed a series of slippery-slope hypotheticals to his guests, Fox and Owl. Morgan wondered whether, because Fox and Owl identify as nonbinary, he was then free to identify as a black woman or an elephant.

"You've got to respect what people want to be called," Fox said to Morgan.

"Why do I have to?" Morgan responded, to which Owl reminded Morgan that it's about respect.

"If I turned around right now and I said to you, 'I am a black woman,'" Morgan began, "If I just decided to identify myself as a completely different skin color to the one that I am, that would clearly be ridiculous, right?"

Morgan's guests pointed out that Morgan didn't identify as a black woman, as opposed to his two guests who actually did identify as nonbinary.

Morgan contended that he was taking their "logic to its logical conclusion." Morgan, who claimed to be using logic, later asked if he could identify as an elephant just because he wanted to.

"Can I be an elephant?" he asks. "Literally say I'm now an elephant and do I get afforded elephant rights?"

Throughout the interview, Morgan made several insensitive remarks, claiming that trans identity was a "contagion" among school children. He also asked the two several invasive questions about their bodies and inquired about whether they had gender affirming procedures or sexual reassignment surgery.

In 2014, Janet Mock challenged journalists who fall into this line of invasive questioning during a Fusion segment. In the interview, Mock showed how uncomfortable a cisgender person might become having to answer questions most trans people field regularly.

Rather than ask questions, Morgan appeared combative and often made incorrect assumptions about the trans experience.

Morgan told his guests he was "happy to be persuaded if it makes logical sense."

He asked questions about gender markers on passports and assumed information about his guests' bodies. He asked why he had to use the singular "they" pronoun instead of "he" or "she."

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