The Oregon Court of Appeals today ruled in favor of Eugene resident Jones Hollister’s right to a nonbinary gender marker. Hollister’s gender is nonbinary, but their petition for a nonbinary gender marker was denied by Lane County Circuit Court Judge Charles D. Carlson in 2019.
An Important Victory
“I am so thrilled. I’m thrilled for not just myself but for all nonbinary Oregonians.” Hollister said. “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. They can’t just change the administrative rules and take away my legal status as nonbinary. It is legally affirmed.”
Nonbinary is an umbrella term for people whose gender identity falls outside the binary gender categories of male and female. A nonbinary person may define their gender as falling somewhere in between male and female, or they may define it as wholly different from these terms. A nonbinary person may or may not describe themselves using the word transgender.
In January of 2019, Hollister went to the Lane County Courthouse to get the state forms for changing their name and legal gender marker.
“We can choose to do better”
Hollister’s attorney, Lorena Reynolds, Managing Attorney at The Reynolds Law Firm in Corvallis, said that the ruling is an example of how Oregon is leading the way in supporting nonbinary communities. “This state has been a leader in recognizing and supporting transgender and nonbinary Oregonians and this case is an affirmation of our collective commitment to changing the historic ways in which nonbinary people have been marginalized in our communities. While legal protections are being stripped away at the national level, I am proud we are taking a different approach here, an approach where we recognize that real lives are impacted in real ways by bureaucratic decisions such as this one and that we don’t have to continue to do things the way they have always been done once we know that those systems are harming people. At any point in time, we can choose to do better.”
Kieran Chase, transgender justice program manager with Basic Rights Oregon, said the statewide LGBTQ advocacy group partnered with the ACLU of Oregon to ensure Oregon’s courts considered the voices of and impact on other nonbinary Oregonians. “This is an enormous step forward toward a world where nonbinary people are fully recognized by our government. To be clear, the law does not determine whether we exist—but when the law is just, it reflects what we know to be true and right. Nonbinary people are here, we know who we are, we have existed since the dawn of humanity, and we deserve to be acknowledged by the government that represents us, no matter where in Oregon we live.”
Kennedy Sparrow a nonbinary Lane County resident who shared their story in a friend-of-the-court brief with the ACLU of Oregon and Basic Rights Oregon celebrated the ruling this morning. “I’m grateful the judge in Lane County is now duly ordered to abide by state laws he was willfully refusing to adhere to, and deeply grateful for all those who provided emotional, physical, and mental energy towards this case. While our genders and lived experiences are presently bound and defined by legal strictures created to document us and create barriers and are assigned before we can consent, our reclaiming of ourselves matters—we know our truths.”
The ID documents people need
Transgender Law Center, the largest national trans-led organization, partnered on a friend-of-the-court brief in support of Hollister’s appeal with two other organizations–interACT, a nonprofit that advocates for the rights of intersex youth, and Beyond Binary Legal, an organization that supports nonbinary people by using law as a tool for survival and restorative change.
“It is so exciting to see Oregon courts carefully considering the complexity of sex and gender in their interpretation of the law,” said Caspian Nash, co-founder of Beyond Binary Legal. “This decision will make it easier for people who are not female or male to get the ID documents they need in their everyday lives.”
Attorney General Ellen Rosenblum said, “I’m pleased that the Court of Appeals agreed that a court-ordered change of sex should reflect an applicant’s gender identity—male, female, or nonbinary—just as Oregon birth certificates and driver licenses now do, and I am proud of the brief my office submitted arguing for this result. This decision ensures that all transgender, gender-diverse, and gender non-conforming Oregonians—including those who identify as nonbinary—can obtain documentation that accurately reflects their gender identity.”
Sara Kobak, attorney for Schwabe Williamson & Wyatt PC who represented the ACLU of Oregon and Basic Rights Oregon in the case, said, “The Court of Appeals decision today recognizes the fundamental civil right of all Oregonians to have legal recognition of an accurate gender marker. That right is provided by statute, but some Oregon courts previously have refused to recognize nonbinary as a legal sex designation. With this decision, all Oregonians now will have equal access to recognition of a legal sex designation that correctly reflects and affirms their gender identity regardless of where they live in the state.”
“The Court of Appeals ruled this morning that the 2017 amendment of the state’s legal sex designation law did what the legislature intended it to do: provide Oregonians with the right to public and legal sex designations that match who they are,” said Sarah Adams-Schoen, assistant professor at University of Oregon School of Law.
The Oregon Department of Justice, Basic Rights Oregon, the ACLU of Oregon, Transgender Law Center, InterACT, Beyond Binary Legal, and a group of Oregon law professors filed briefs in support of Hollister’s appeal. Attorneys for the ACLU of Oregon and Basic Rights Oregon include Sara Kobak and Jessica Schuh of Schwabe Williamson & Wyatt PC and Kelly Simon of the ACLU of Oregon. Attorneys for the Transgender Law Center, Beyond Binary Legal, and InterACT include John Clarke and Bruce Campbell of Miller Nash Graham & Dunn LLP. Caitlin v. Mitchell and Sarah Adams-Schoen, assistant professor at the University of Oregon School of Law, submitted a brief on behalf of 26 law professors from Oregon’s three law schools.
The Court of Appeals decision is online at https://aclu-or.org/sites/default/files/hollister_-_court_of_appeals.pdf
Friend-of-the-court briefs are online at https://aclu-or.org/en/cases/jones-hollister-appeal