July 10, 2020

Oregon Court of Appeals Recognizes That Sex Is Not Strictly Binary

Decision Holds That Oregon Courts Are Required to Affirm a Valid Petition Requesting Change of Legal Sex, Whether to Male, Female or Nonbinary

The Oregon Court of Appeals, the state's intermediate appellate court, has recognized that the plain language of the word "sex" is not limited to the binary choices of "male" or "female." As the Court stated, based on the science, "binary views of 'sex' do not reflect the reality of well-documented occurrences of individual, biologic variations concerning the 'sex' of individuals." In the Matter of Jones David Hollister, 305 Or. App. 368, 82020 WL 3832931 *4 (2020) (hereinafter Hollister), citing Anne Fausto-Sterling, Sexing the Body: Gender Politics and the Construction of Sexuality 30-39 (2000) and Melanie Blackless, et al, How Sexually Dimorphic Are We? Review and Synthesis, 12 Am. J. Hum. Biol. 151 (2000).

The Court of Appeals reversed a lower court, holding that Oregon's statute governing petitions for a legal change of sex requires that courts granting a "new sex designation must affirm the petitioner's gender identity whether that is male, female, or nonbinary." Hollister at *6.

This is not the first time a court has granted a request to change an applicant's sex to nonbinary. In 2016, an Oregon Circuit Court granted Jamie Shupe's request to have their sex designated as nonbinary. See In the Matter of Jamie Shupe, Multnomah County Circuit Court Case No. 16CV13991 (June 10, 2016). The same year, a California Superior Court granted a petitioner's request to designate their gender as nonbinary. See Decree Changing Name and Gender, Santa Cruz County Superior Court Case No. 16CV02024 (filed Sept. 26, 2016). Both Oregon and California subsequently changed their statutes to permit nonbinary sex designations. See Or. Rev. Stat. § 33.460 (operative Jan. 1, 2018); Gender Recognition Act, 2017 Cal. Legis. Serv. Ch. 853 (S.B. 179) codified at Cal. Civ. Proc. Code § 1277.5. Currently, 17 states and the District of Columbia provide for legal recognition of nonbinary gender.

The lower Oregon circuit court in Hollister had earlier denied the petition, opining that it did not have authority to grant the petition because, in its view, a change of sex to nonbinary was inconsistent with the "present wording of the 'sex' change statute," Hollister at *2. The Oregon Court of Appeals precedent makes clear that all Oregon circuit courts do have such authority, and, in fact, must grant a petition for a "nonbinary" legal sex designation if the petitioner meets the other statutory requirements. Hollister at *6.

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