Words Try to Keep Up With Law of Gender Identity
by Ken Bresler
A version of this article appeared in
Massachusetts Lawyers Weekly, Rhode Island
Lawyers Weekly, and Detroit Legal News, March 3, 2017
The culture of gender identity is changing rapidly, the law of gender identity is struggling to keep up, and with new law come new legal terms, neologisms.
Intersex. For the first time, New York City issued a birth certificate reading neither “male” nor “female,” but “intersex.” It did so on December 15, 2016. The city’s Department of Health and Mental Hygiene issued a corrected birth certificate for Sara Kelly Keenan, who was born 55 years ago in Brooklyn.
In Keenan’s mind, Keenan is neither male nor female. Keenan is genetically male, but was born with female genitalia and mixed internal reproductive organs. Years ago, Keenan would have been called a “hermaphrodite.” See DiMarco v. Wyoming Department of Corrections, 300 F. Supp. 2d 1183, 1186 (D. Wyo. 2004)(“Plaintiff was born intersexual (or as a hermaphrodite).”) (footnote omitted). As a general language term, not just a legal one, “hermaphrodite” seems on the way to being abandoned.
X. When Dana Zzyym applied for a U.S. passport in 2104, Zzyym didn’t check the box labeled “M” for male or the box labeled “F” for female. Instead, Zzyym wrote “intersex” below the “sex” field and submitted a letter explaining that Zzyym was neither male nor female. The letter requested a passport with “X” in the sex field.
Why “X”? A passport holder’s sex is designated by “the capital letter F for female, M for male, or X for unspecified,” according to the International Civil Aviation Organization’s standards for machine-readable travel documents. Australia began allowing passport holders to choose an X in 2011. New Zealand and other countries allow an X too.
After the U.S. State Department refused to issue a passport, Zzyym sued. Zzyym alleged violations of the Administrative Procedures Act and the Fifth Amendment’s Due Process Clause and Equal Protection Clause. On November 22, 2016, a federal judge in Colorado remanded the matter to the State Department for reconsideration.
The judge found that the administrative record did not show that the process behind the policy of issuing passports with only M or F was rational. The judge wrote that the State Department could possibly convince him that the policy was not arbitrary and capricious. Hence, the remand. The judge said that he would not decide the constitutional issues unless and until he needed to. That’s the case status as of this writing.
As long as we’re talking about language, both the complaint and the order referred to the State Department’s “binary-only policy” – which is redundant. The prefix “bi” of course means “two,” as in “bicycle,” “bilingual,” and “bisexual.” “Binary” means having two categories, no more, no less. Someone objecting to a binary option is objecting to having only two choices. “Binary” implies “only,” so “binary-only policy” is redundant. The term “binary policy” will do just fine.
Non-binary, nonbinary. Jamie Shupe became the first legally non-binary person in the U.S. on June 10, 2016. It happened under an Oregon statute authorizing a court with jurisdiction to change a person’s name to “order a legal change of sex and enter a judgment indicating the change of sex of a person if the court determines that the individual has undergone surgical, hormonal or other treatment appropriate for that individual for the purpose of gender transition and that sexual reassignment has been completed.” ORS [Oregon Revised Statutes] 33.460(1). The statute doesn’t require that the change of sex be from male to female, or vice versa.
On April 26, 2016, Shupe’s lawyer, Lake J. Perriguey of Portland, Oregon, filed a simple one-page “Petition for Sex Change.” The substance read:
“I request a General Judgment changing my sex from female to non-binary.
“I have undergone surgical, hormonal, or other treatment appropriate for me for the purpose of gender transition. Sexual assignment has been completed.”
In a telephone interview, Perriguey told me that a person born intersexual does not need to undergo surgery or hormonal treatment, and that one therapy session could qualify as appropriate treatment. Courts have not interpreted what it means that “sexual reassignment has been completed,” and applicants merely affirm it.
There was no brief, no written or oral legal argument, although there was a hearing.
Six weeks after the petition was filed, Circuit Judge Amy Holmes Hehn signed a simple one-page “General Judgment of Sex Change,” which Perriguey had prepared. It read in full:
“Based on the Petition, and the Court finding that proper notice to interested parties has been given; that the above-named person has undergone surgical, hormonal, or other treatment appropriate for this person for the purpose of gender transition; that sexual assignment has been completed; and that no person has shown cause why the General Judgment shall not be granted,
“IT IS HEREBY ORDERED AND ADJUDGED:
“The sex of Jamie Shupe is changed from female to non-binary. Notice of this legal change shall be posted in a public place in Multimonah County as required by law.”
After signing the order, the judge told Perriguey, Shupe’s lawyer, that he had pushed the envelope, but he didn’t interpret that as a criticism. He responded that the envelope needed to get bigger. Perriguey didn’t know at the time that his client Shupe had become the first legally non-binary person in the U.S.
Perriguey expects Oregon’s Department of Motor Vehicles to eventually issue Shupe a driver’s license with a designation of “non-binary” or “other.” The DMV’s major challenge is technological, he said; its computer system is decades old.
Cisgender. Here’s my definition on Bresler’s Law Dictionary: noun. A person whose gender identity corresponds with the legal gender he or she was assigned at birth. adjective. Pertaining to a cisgender.
“Cis” is the Latin prefix for “on this side of,” so “cisgender” is the opposite of a “transgender.” The term originated in academic papers about sex in the 1990s.
This term first made it into a reported decision in 2014. Norsworthy v. Beard, 74 F. Supp. 3d 1100, 1116 (N.D. Cal. 2014). It has appeared in a handful of decisions since then.
Mx. This is not strictly legal lingo, but lawyers will need to know this soon. “Mx.” is the sex-neutral alternative to “Ms.,” “Mrs.,” “Miss,” and “Mr.” It’s pronounced “mix” or “mucks.” Several British government entities allow the title when conducting business with them. The House of Commons allows Members of Parliament to go by “Mx.” No word on how many MPs do. The Oxford English Dictionary included “Mx.” in 2015; the Merriam-Webster Dictionary did so in 2016.
They, them, their. This is also not strictly legal, but “they,” “them,” and “their” are a set of sex-neutral singular pronouns that may emerge in the language. What am I talking about? Dana Zzyym, in the passport case, uses “they” as a pronoun. So here’s the PBS Newshour reporting on the case: “In 2014, they applied for a U.S. passport…but were denied because they did not select ‘male’ or ‘female’ on their application.”
That’s one person applying, one person not selecting “male” or “female,” and one person getting rejected. Yet the article used “they,” “were,” and “their.” Pretty confusing, if you ask me.
Mx. Zzyym is not the only one who uses “they” as a singular pronoun. Mx. Shupe does too. The American Dialect Society termed “they,” as a sex-neutral singular pronoun, the 2015 Word of the Year.
(Here’s a related but different issue, illustrated by the written answer of Betsy DeVos to a written question from a Democratic senator during the nomination process of DeVos to be Education Secretary: “Every child deserves to attend school in a safe, supportive environment where they can learn, thrive, and grow.” “Child” is singular, but DeVos used the plural “they” rather than something like “he or she.” Put aside the possibility that DeVos plagiarized the sentiment. The language issue in DeVos’s answer is related to the issue of Zzyym using “they,” because “they” is being used as a sex-neutral singular pronoun. But the language issue is different because the reason that DeVos used “they” was not that she was discussing people who are neither male nor female. The language issue in DeVos’s statement is whether mixing the singular and plural is grammatically correct. I’m not delving into this issue here. People mix the singular and plural frequently while speaking and regularly while writing. It might be or become acceptable.)
Several other sets of sex-neutral pronouns are out there and might gain acceptance. What do I mean by “sets”? “Ze,” “zir,” and “zir” have been proposed as alternatives to “he” and “she,” “him” and “her,” and “his” and “her.” So if the ze/zir/zir set caught on, a lawyer could end up writing in a brief: “Ze filed zir applications for a sex-neutral passport and driver’s license, but the passport was denied to zir.”
We have people who don’t identify with the male or female sexes. That’s a legal reality. Jamie Shupe was the first, but more people have become legally non-binary. So we need sex-neutral singular pronouns. I’m hoping that invented ones – like ze, zir, zir – catch on, rather than existing sex-neutral pronouns – they, them, their – that are used both in the singular and plural.
But here’s another reality. People may choose their gender identities, just like they may choose their names. Dana Zzyym was not born with that name. When people keep or pick their names, we respect their choice. When a woman chooses “Ms.” over “Mrs.,” or vice versa, we don’t argue with her choice; we respect and accept it. The reality is that – as with names, titles, and gender identities – people may pick their pronouns. I may find “they” as a singular sex-neutral pronoun to be confusing, but at a certain point, my confusion, anyone else’s confusion, is irrelevant. They have picked “they.” And we must respectfully accept it.
One of Zzyym’s lawyers, Paul D. Castillo, works for Lambda Legal, a civil rights organization for lesbians, gay men, bisexuals, transgender people, and people with HIV. When he sends an email, it has this signature block:
Paul D. Castillo
Senior Attorney
pronouns: he/him/his
Lambda LegalSouth Central Regional Office
[address]
[phone]
[fax]
[email]
[website]
Lawyers can expect to see signature blocks with pronouns in them. Lawyers, other than those working on gender identity cases, may start using signature blocks with pronouns. And who knows? Pronouns might start appearing on clients’ and lawyers’ business cards.
Heeding a person’s pronouns is not only a matter of being respectful as a person and lawyer. In some circumstances, it’s a legal requirement.
On March 28, 2017, the U.S. Supreme Court is scheduled to hear the case of a high school student who was born a girl, is now legally and medically a man, and wants to use the men’s restroom under Title IX. The caption – and this is important – is Gloucester County School Board v. G.G., by his Next Friend and Mother, Deirdre Grimm.
In January 2017, three groups, Liberty Counsel, the National Organization for Marriage, and the Center for Constitutional Jurisprudence, filed amicus curiae briefs opposing G.G. with captions that read in part: “by her Next Friend and Mother.” The three groups intentionally altered the caption because of their position that G.G. is female. (G.G.’s name and photo are very public. His initials appear in the caption because he is a minor.)
On February 24, 2017, the Clerk of the Supreme Court admonished the lawyers in a letter: “Under Rule 34 [of the Supreme Court Rules], your cover is to reflect the caption of the case. Please ensure careful compliance with this requirement in this and other cases in the future.”
Ken Bresler is a lawyer, editor, and legal writing coach. He maintains Bresler’s Law Dictionary at www.ClearWriting.com. Pronouns: he/him/his.