Oregon Appeals Case Could Set New Precedent for Nonbinary Rights

A case currently working its way through the Oregon legal system could set a new precedent for transgender and nonbinary rights in the state.

Jones David Hollister is a nonbinary person who lives in Lane County, Oregon. Earlier this year, they attempted to have their legal gender designation changed from female to nonbinary—meaning they would be seen as a nonbinary person in the eyes of the law—but their request was denied by Lane County Circuit Court Judge Charles D. Carlson.

Now, Hollister is appealing Carlson’s decision. If the Oregon Appeals Court rules in their favor, it would guarantee that other nonbinary Oregonians wouldn’t face the same legal challenges Hollister’s had in changing their legal gender designation.

“The judge told me that he wouldn’t let me be nonbinary,” Hollister said in a press release from the ACLU of Oregon. “I have spent my life marking an ‘F’ on forms, and it isn’t representative of who I am. I am not a female, and I am not a male. I am nonbinary.”

Hollister is being represented by lawyer Lorena Reynolds, and the ACLU of Oregon and Basic Rights Oregon have filed a joint legal brief supporting their case. The case they make for Hollister—and the reasons Carlson originally gave for denying Hollister’s request—both hinge on a 2017 law passed by the Oregon State Legislature. Known as House Bill 2673 before being signed into law, it streamlined the process for circuit courts to grant trans people legal gender designation changes, and removed the requirement that people go through a medical transition before legally transitioning.

The problem with HB 2673, according to Carlson, is that it does not specifically mention nonbinary people, and uses the term “sex” rather than “gender.” (Traditionally, “sex” is thought to correspond to a person’s physical makeup, while “gender” refers to a person’s identity.) In Carlson’s view, that means that while the law clearly mandates him to grant legal gender changes for trans men and trans women, he still does not have the authority to change the legal status of a person whose gender falls outside the binary of man or woman.

“I would have liked to have the legislators make it real clear that this is a gender decision and not a sex change,” Carlson said at a June hearing for Hollister’s request, according to court transcripts. “That’s the problem I’m having.”

Carlson also said Hollister was free to appeal the decision, and that he was “happy to be the sacrificial lamb that would give guidance to the trial courts with regard to this dilemma.”

But while Carlson is unsure about whether HB 2673 is inclusive of nonbinary people, not all of his fellow circuit court judges feel that same confusion. Judges in at least four Oregon counties, including Multnomah County, have approved legal gender changes for nonbinary people since 2017.

Those other judges were in the right, Hollister’s team is arguing, because the intent of the state lawmakers who passed HB 2673 was clearly to include nonbinary people. In fact, Reynolds calls Carlson’s logic a “fallacy” in an opening brief filed with the Oregon Appeals Court earlier this month. From that brief:

“During a public hearing in the House Committee on Health Care on February 27, 2017, several community members and legislators used terminology that indicates their intention that the bill include people who identify as nonbinary. For example, Rep. [Jennifer] Williamson, House District 36, stated that the purpose is to make sure that a person’s legal identity matches ‘who they really are’ and uses the term ‘gender identity’ throughout. At no time does Rep. Williamson use the term ‘sex,’ nor does she use the terms ‘male’ or ‘female’ when speaking. Neola Young, a transgender advocate and consultant, uses the term ‘gender non-conforming’ throughout their testimony. …

While the exact term ‘nonbinary’ is not used, the majority of the statements and language indicate that the true intention of the bill was to include everyone whose legal documentation does not accurately reflect their gender identity. The language used by legislators and the public during discussions of the bill indicates that the intended protected persons include those who identify as nonbinary.”

In addition to easing the requirements for a legal gender designation change, HB 2673 also made it easier for trans and nonbinary people to change their administrative gender designations—such as on a driver’s license or birth certificate—without even needing to go through a court process. Nonbinary Oregonians can now go to the DMV and get an “X” gender marker, rather than an “M” or “F,” on their ID cards. (As of September, over 4,000 people had changed their ID markers to “X” in Oregon.) While that option is available to Hollister, getting a legal gender designation change still adds an extra layer of protection, and would ensure that their legal gender would also be recognized by other states and the federal government.

“While the DMV recognizes a third, nonbinary gender designation, it is unclear what impact, if any, this administrative change has on one’s legal status,” the opening brief reads. “There is, for example, no indication that any other state or the federal government will recognize an administrative change.”

Reynolds’ brief also notes that Oregon is already one of 13 states and Washington, D.C. to recognize nonbinary as a gender option on legal documents. National governments in 10 countries, including Canada, Germany, India, and Pakistan, allow a third gender option for passports or birth certificates.

In its legal brief in support of Hollister’s case, the ACLU and Basic Rights Oregon include quotes from many nonbinary Oregonians, explaining the importance of having their legal designations align with their gender identities.

“I’m a nuclear engineer,” Emory Colvin said in the brief. “I fill out a lot of paperwork with like name and gender and everything, and it ends up on a lot of stuff that gets tracked. … Every time I was marking down the wrong gender marker, it’s just a little bit of a reminder that I don’t belong.”

The ACLU expects the Oregon Appeals Court to hear oral arguments in Hollister’s case sometime in the first half of 2020. If the court rules in Hollister’s favor, it will mean that all Oregon circuit court judges will be required to grant nonbinary people a legal gender designation that aligns with their gender identity.

“Most judges already interpret the law the correct way,” Kelly Simon, a staff attorney with the ACLU of Oregon, told the Mercury. “A Court of Appeals decision affirming the correct interpretation would leave no room for rogue judges do what the judge in Lane County did.”