The possible future of legal gender recognition, by Megan Talbot, PhD Candidate
Most people never really have to give their legal genders any thought. After all, it is usually assigned at birth before we are able to form memories, and, in most cases, matches a persons gender as they grow up. However, because the legal gender assigned at birth is based on sex there can, for some people, be an issue where their legal gender does not match their actual gender.
As much as most people tend not to think about their legal gender, there is actually a fair amount of law on it. Not only is there the obvious issue of the law allowing people to change their gender on various documents, such as drivers licenses and birth certificates, but a lot of law interacts with gender, so any change in the documentation of gender must be reflected and dealt with in other areas. Someone wishing to change their legal gender can often, depending on their jurisdiction, face a legal web, where every area of the law requires a different standard of evidence and has different requirements to have ones gender recognised.
Part of the reason for the complexity of this area of law is that certain areas which it interacts with heavily, such as with birth certificates, are regulated by statute. Because statutes require the legislature to change, these pieces of legislation can often be outdated, due to lack of political will to update them. They can also often have fairly strict requirements in terms of what is required of a person to have their gender recognised, and usually only recognise two binary genders, male and female. This can be seen as a product of the fears and views which were more common at the time when the requirements were written.
Case law has also had a major impact on gender recognition law. From the earliest cases determining the legal gender of intersex people in the 1620’s1 to the highly influential case of Corbett v Corbett2, which, while being a UK case influenced how many jurisdictions thought about legal gender for quite some time3. Cases have also played a major role in moving the law forward and prompting legislative action, for example Goodwin v the United Kingdom4, which led to the gender recognition act in the UK, or the Norrie case in Australia5, which granted an intersex person the right to be recorded as such on their birth certificate.
One case, which may well prove to be similarly influential and important is the June 2016 case of Jamie Shupe6. Jamie Shupe has become the first, and at the time of writing, only, person to be recognised under law in the USA to have a gender other than male or female. This was accomplished through an otherwise unremarkable application under §33.460 of the Oregon revised statutes, which allows a change of sex to be recognised by a judge “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”7. But, rather than the judgement itself being the first of its kind in the United States, this may not be its most interesting feature. Instead, it is of particular interest because of the reasoning used to reach the judgement. In this case it was decided that, because nowhere in the statute did it specify that gender could only be recognised as male or female, it could be any gender, provided it could meet the other criteria. In this case Jamie Shupe was able to present statements from two medical professionals stating that their gender should be recognised as non-binary, and was deemed to have met the relevant criteria, and as such, had their gender recognised.
This reasoning, that if the relevant statute does not mention that gender must be binary, then it need not be considered to be required to be so, is what makes this case potentially important. This is because, while gender is, in most countries, recognised solely as binary, many countries have legislation that allows a person to change their gender on various pieces of documentation8, and none that I have come across specifically state that gender may only be recognised as binary. As such, if other jurisdictions apply the reasoning used in this case, it is entirely possible for any jurisdiction which currently allows for change of sex on official documents to recognise non-binary genders on those documents. Whether or not this will happen remains to be seen, and it may be that this reasoning may not find favour with judges who place more weight on the intent of the legislature at the time when the relevant legislation was passed, as they may well read in an assumption that gender may only be binary. However, the possibility is intriguing, and, as I will hopefully cover in a future post, not impossible, given the history of judicial treatment of gender in some other jurisdictions.
References or further reading:
- For example see Hall’s case, 1629
- Corbett v Corbett  2 All ER 33
- See International commission of jurists, SOGI casebook introduction, chapter nine: transgender marriage, located at http://www.icj.org/sogi-casebook-introduction/chapter-nine-transgender-marriage/ for more information in the international influence of that case.
- NSW Registrar of Births, Deaths and Marriages v Norrie, Case No. S273/2013
- Goodwin v United Kingdom (1996) 22 EHRR 123
- Multnomah country circuit court, probate. department, In the matter of the sex change of Jamie Shupe, case No 16CV133991
- Chapter 33, §33.460 of the Oregon revised statutes
- See the UK Gender Recognition Act 2004 for an example of legislation of this type.