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A Recap on Non-binary Identities and the Law

As a long-time New Jersey resident, I was one of many who, mortified by the mire of Chris Christie’s controversies, breathed the collective sigh of relief when the former governor’s graceless exit gave way to incumbent Phil Murphy’s campaign.

We were happier still a few weeks ago, when Governor Murphy signed three transgender bills into law on the 3rd of July. Appropriately deemed outdated in the burgeoning era of third gender markers, Christie’s insistence on providing evidence of reassignment surgery in exchange for the basic right to gender identity was swept aside by transformative changes to our state’s official documents.

Non-binary people do struggle with the misconception that medical transition is only for “real” transgender people, but Christie’s mandate, in conflating a non-binary individual’s desire to not be a woman with the desire to be a man, only managed to pressure many non-binary individuals into undergoing expensive procedures that they would not have considered otherwise. Under the Babs Siperstein Law, named in honor of the first transgender member of the DNC in 2012, those living beyond the gender binary can now modify the gender markers on their birth certificates instead by signing a form attesting to the unequivocal need for this change. Death certificates were also addressed by S.493, a bill that reflected the preferred gender identity of the deceased. Lauding his partnership with Garden State Equality, the state’s LGBTQ rights group, Murphy declared that New Jersey “will continue to stand with our LGBTQ residents in the continue pursuit of similar rights nationwide.”

Two years prior to this satisfying legislative pivot, retired Army tank mechanic Jamie Shupe was setting another historic precedent for genderqueer people, this time in Portland, Oregon. After their petition to become the first legally non-binary person in America was granted, Shupe was finally able to comfortably exist outside the confines of traditional gender labels. “I didn’t just do this for myself,” they said. Indeed, the aftermath of Shupe’s major civil rights victory continued reverberating through the state in June 2017, when the Oregon Transportation Commission unanimously voted to add a gender-neutral option on state IDs. The “M” and “F” fields that had long excluded more than a few state residents were now accompanied by the non-binary option “X”, allowing individuals like Sara Kelly Keenan to opt out of gender entirely. However, despite these encouraging reforms for driver licenses and state ID cards, it is currently impossible for a non-binary person in Oregon to request for an “X” marker on U.S. passports, and other records such as birth certificates would likely conflict with gender-neutral IDs. Having already fought an uphill battle for Gender “X”, non-binary residents of Oregon face the additional burden of explaining why they have chosen to update their identification as they navigate their mismatched identity documentation.

Legal recognition of non-binary gender has fared better internationally than on the home front; Australia, India and Canada are just a few of the dozen countries that have their passports updated with third classifications. The U.S. State Department, meanwhile, has been denying Dana Zzyym, an intersex Navy veteran, their U.S. passport for the better part of four years because of their refusal to choose the male or female “options” on their passport application form. While legislation to reform this most consequential documentation remains elusive, states like California and Washington have focused their intentions on their next best bet: birth certificates. In Oct. 2017, California Governor Jerry Brown wrote into law the option for non-binary and intersex individuals to request a new birth certificate as well as a state-issued ID and driver’s license with third, non-binary categories. Washington State followed suit on Jan. 27, issuing its respective third gender options for its birth certificates; it also waived the requirement that adults provide a doctor’s letter when changing their gender identity. New York is pushing forward with a similar initiative for birth certificates, while Massachusetts, Maine, and Vermont are in support of gender-neutral designation on driver licenses and identification cards.

Given our current president’s stance against LGBTQ rights, these strides in non-binary legislation are especially encouraging. Equally relevant, however, are the voices that are questioning the ramifications of the Gender “X” movement. Though I had been content with the aforementioned agenda in New Jersey, Robin Dembroff’s argument in The New York Review of Books gave me pause. “Rather than deconstruct gender binarism,” he says, “lawmakers have, in effect, shored it up.” An Assistant Professor of philosophy at Yale University, Dembroff, who identifies as genderqueer, is far from pleased with both liberals’ and conservatives’ assumptions “that the state should be concerned with my gender, whatever that is as they understand that to be.” After all, agender, genderfluid, Two Spirit, bigender, pangender, and transsexual are just a few of the multitudes of other gender identities that many would prefer to legally assume but are currently barred from doing such.

While Washington State’s definition of “Gender X” includes, but is not limited to, the above gender identities, the all-encompassing nature of this marker does not do the more specific preferences of many non-binary people enough justice. According to the professor, even California, the first in the nation to simultaneously offer both birth certificates and other state ID with the third gender marker, has “lumped all identities other than 'male' and 'female' under the ‘non-binary label.’"

Dembroff admits that the developing gender laws are preferable to categorizing individuals under just those “male” and “female” fields. They still emphasize, however, that the best solution would be to eliminate all gender markers on state-issued identification altogether. “Americans should not have to resign themselves to a choice between two legally classified genders based on genitals and three legally classified self-identities,” they firmly state.

However well-intentioned these lawmakers are, neglecting to probe the nuances of the non-binary as an umbrella term would only serve to limit the scope of gender identity. We can celebrate the increasing tide of legal representation for non-binary communities, but let us also remain ever-cognizant of the potential shortcomings of these newly minted bills as we gradually pave the way to a more inclusive tomorrow.


Sofiya Joseph is a Copy Editor at The Rational Creature. Email her if you have any questions.

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