Why can’t the nation’s first legally nonbinary person get an ID?

passport with gender symbols

Photo via Ryan Maple / Flickr (Fair Use) Remix by Max Fleishman

In late April, retired military vet Jamie Shupe casually filled out a form at the Multnomah County courthouse in Portland, Oregon. Shupe was petitioning for a gender change: a relatively commonplace task undertaken by many of the nation’s estimated 1.4 million transgender residents.

But Shupe, unlike most transgender people, doesn’t identify as male or female—they identify as neither. And on June 10, they quietly, unexpectedly made history. 

The Oregon court granted Shupe’s change, making them the first U.S. citizen to be legally classified with a nonbinary gender. 

Shupe called the experience “incredibly humbling.” “I was literally tearful,” Jamie Shupe said, when the Daily Dot broke the news of their case in June. “I hope the impact will be that it opened the legal doorway for all who choose to do so to follow me through. We don’t deserve to be classified improperly against our will.”

Photo courtesy of Jamie Shupe

But while the court’s approval of the gender change made international headlines, Shupe hasn’t been able to integrate being legally nonbinary into all of life’s little bureaucracies. Court order in hand, Shupe applied for a new driver’s license—only to be told that the Oregon Department of Motor Vehicles didn’t have the ability to comply.

Then on July 5, Shupe applied for a U.S. passport in the hopes that the State Department would be able to accommodate what the Oregon DMV could not. This time, they brought the court order along with their military ID that did not state a gender at all. The passport clerk accepted Shupe’s documents, various payments totaling $256 for expedited service, and confiscated Shupe’s 2011 passport that was marked “male.” 

But nearly a month later, Shupe has been denied the passport—along with a new driver’s license and military ID card. While all of those documents would have been available to Shupe after a gender transition to either male or female, being classified as nonbinary has apparently complicated matters. 

Not a single state or federal agency has been able to issue Shupe an ID that says nonbinary, despite the court order that says that’s what Shupe is—and some of those agencies appear to be flat-out opposed to the idea altogether.

If Jamie Shupe’s gender is legal according to the court, then why can’t any U.S. agency issue identification documents that reflect that?

Gender is a funny thing. By definition, it’s not the same as biological sex—that determination made at birth based on genitalia, chromosomes, and other physical variations. Gender is a function of identity and self-awareness: It’s the way that a person feels inside, and the way they want to carry themselves throughout the world. A person can be born with a penis or a uterus or both (in the case of intersex people, many are born with some assortment of male and female physical characteristics), but their gender identity is a mutable factor that can’t be predicted. 

For 36 years, being transgender has been classified as a form of mental illness. Introduced in 1980 in the American Psychiatric Association’s Diagnostic and Statistical Manual (DSM), Gender Identity Disorder (GID) was said to manifest in adults and children as “evidence of a strong and persistent cross-gender identification, which is the desire to be, or the insistence that one is, of the other sex.” The “disorder” was added to the DSM just six years after homosexuality was removed. Today, being trans remains classified as a mental health condition in the DSM, though it was rewritten as “Gender Dysphoria” in 2013.

In order to change the gender marker on identity documents, start hormone therapy, or have sex-reassignment surgery procedures, most transgender people have to first be diagnosed with Gender Dysphoria under the care of a qualifying doctor. As the APA explained in the 2013 update, adjustments were made in an attempt to erode the mental health stigma, but removing Gender Dysphoria from the DSM completely could make it impossible for transgender people to access things like gender-confirming medical treatment or to qualify for name and gender changes on documents. 

Typically, this process results in a change from male to female (MTF) or female to male (FTM), but increasing numbers of nonbinary and genderqueer-identifying people—both catch-all terms for those outside of the gender binary—are opting out of those categories in favor of a broader, looser, or more accurate sense of self-definition.

“49 years of living as a male didn’t make me male, and three years living as a female didn’t make me female,” Shupe told the Daily Dot. “I have always been nonbinary.”

Photo courtesy of Jamie Shupe

Born on August 10, 1963, Shupe grew up the way many trans and nonbinary people do: knowing that something was different, knowing that their gender wasn’t right, being told to keep quiet about it, and not seeing much of an option to live authentically. And that wasn’t the only problem.

“I was sexually abused by a male relative as a young child, elementary school years,” Shupe told the Daily Dot. “That’s a really important part of my story, because that event confused my gender identity for decades. I literally ran around thinking that I thought of myself as a female because of that abuse, using that as a coping mechanism. It’s time that part of my story gets told.”

It’s a painful element of Shupe’s identity, and one that LGBT people sometimes shy away from due to old stigmas that once suggested sexual abuse can “turn you gay” or trans. Statistics on childhood sexual abuse vary, but according to New York’s Advocacy Center, one in three girls and one in five boys are victimized. It’s senseless to conflate surviving rape or abuse with gender or sexual orientation (or with doing sex work) when the crimes are horrifically commonplace, yet many remain in fear of such taboos. For Shupe—and other trans and genderqueer survivors—there’s the added frustration over the way trans people have been portrayed as perverse by the conservative right.

“No one [in media] wanted to report how I was sexually abused as a young person, but they all want to report about the myth that all trans people are bathroom predators,” Shupe said. “We’re just a mirror of the population like every other group. But the statistics say we suffer even higher rates of abuse.”

Shupe’s candidness about their life is refreshing: They don’t shy away from boasting about their illustrious military career, nor do they blow past the ugly, traumatic experiences they endured while growing up in Southern Maryland.

“I have a distinct memory of my mother slapping me and calling me a sissy as a young teen,” Shupe told me, “because I had taken eggs and mayonnaise and lathered up my hair after reading about it in a women’s fashion magazine.”

Photo courtesy of Jamie Shupe

Photos from Shupe’s youth belie a visible femininity that is slowly, consecutively buried underneath increasing “manliness.” Despite early signs of gender difference, Shupe learned to suppress the feminine side and overcompensate with masculinity. There were girlfriends, sexcapades, wild pranks, and facial hair. Shupe condensed it all into a coping mechanism, saying the “bold and dramatic stuff” they did back then kept them from getting their ass kicked by the boys in town.

The military was a ticket out, especially since “nobody ever said the word college to me.” Shupe scored unusually high on the Armed Services Vocational Aptitude Battery (ASVAB), higher than what it took to become an officer. Courted by the military, the Shupe that strained to fit in as a teen leapt at the chance to be part of something as an adult.

Photo courtesy of Jamie Shupe

Shupe spent 18 years in the U.S. Army, later retiring as a decorated sergeant with a slew of impressive medals. But those years weren’t always easy: Other military men picked up on something different about Shupe, something that led them to treat Shupe “as a gay male.” Shupe watched in discomfort as gay and lesbian soldiers were openly harassed; they once even filed an Inspector General complaint against the unit’s first sergeant for “preaching about Sodom and Gomorrah in morning unit meetings.”

Photo courtesy of Jamie Shupe

“I didn’t understand back then that I was actually a transgender person, but I lived in horrific fear of them discovering whatever it was that I was,” Shupe told me.

Jamie married Sandy Shupe in 1987—and they are still married after 29 years together.

“Sandy always tells everyone that while the packaging has changed on the outside, I’m still the same person that I always was on the inside,” said Jamie.

Despite popular belief, the cisgender female wives and partners of transgender women (or in Shupe’s case, male-to-female-to-nonbinary) don’t always flee. According to Jennifer Finney Boylan, a Columbia University professor, around a third of wives and girlfriends stick by their partners through transitions. Like Boylan, who identifies as a lesbian and has been with her wife since pre-transition, Shupe is still attracted to women—and still very much in love with their life partner.

Photo courtesy of Jamie Shupe

Though Shupe eventually retired from the military feeling fear and disgust, nothing about them screams “rabble-rouser:” There’s no long history of radical activism, no pushing government policies to the left. There’s just Shupe, who was assigned male at birth, transitioned to female in 2013, and then realized that neither category accurately described their identity. So they stopped going by “she” and adopted “they,” formerly identifying as nonbinary—aka neither, nor, and other than male or female.

Now retired—not to mention whip-smart and good at research—Shupe has a ton of free time to spend on the endless, puzzling red tape associated with battling state and federal agencies.

“I was the top academic graduate at both my basic and advanced noncommissioned officer courses,” Shupe told me in a conversation about fighting the State Department. “If they think I won’t sue them, even if it’s all by myself, they’re not very smart.”

With so much invested on a personal level, they also have an astute level of contextual understanding of their case and its place in history.

“That court order says, ‘The sex of Jamie Shupe is nonbinary.’ Not issuing me a passport is clearly sex discrimination covered under federal law,” Shupe said, referring to trans-friendly federal policies that the Obama administration recently doubled-down on in terms of restrooms, health care, and schools.

Photo courtesy of Jamie Shupe

What is sex? The State Department and government can’t say sex is purely biological,” mused Shupe one day in an email. “Because they’ve already made trans women and men into females and males under the law—despite their biology being female or male.”

Photo courtesy of Jamie Shupe

Another question that greatly plagues Shupe stems from conflicting international policies. They represent just one segment of the many people who would like their passports to have accurate gender markers; apart from nonbinary gendered people, there’s the intersex community, as well as some transgender people, who would prefer a separate category altogether. 

In several countries around the world (including Australia, Bangladesh, Denmark, Germany, India, Nepal, and New Zealand), citizens have been able to get a variety of ID gender markers. In most of those countries, nonbinary and intersex people can have their passports marked “X” instead of male or female. In India, the selections include “T” for transgender and “E” for eunuch. Starting in 2017, driver’s licenses in Ontario, Canada, will offer an X designation—adding to Canada’s new policy of removing gender altogether from the country’s health insurance cards.

So Shupe wonders, if the U.S. allows foreign visitors who have “X” or “T” passports to enter the country, doesn’t that mean our systems are already set to recognize and process third-gender markers? And if the systems are already able to read those passports, why can’t we have them here at home?

No one had heard about Jamie Shupe’s court ruling until the day it happened—because no one was informed ahead of time. (I learned from an attorney who sent me a screengrab of the court documents.) There was no powerhouse LGBT legal group behind it, no team of nonprofit communications associates drafting press releases in preparation for the ruling. There was just Shupe and Lake James Perriguey— a gay Portland lawyer best known for LGBT family law cases like divorce, domestic partnerships, and child support. 

It’s possible that no one at the Oregon court put much thought into the historical, national significance of agreeing with Shupe’s request. The entire thing happened so casually, so quietly, it almost appeared accidental.

But there’s no turning back now. And Shupe isn’t the only one fighting to have their gender recognized by the state as residing outside of the binary of male and female.

Former U.S. Navy machinist Dana Zzyym, of Fort Collins, Colorado, was born intersex, with physical characteristics typically associated with both males and females. Intersex people like Zzyym, 58, often endure painful and fallible surgeries and procedures as children, with an arbitrary choice between male and female usually made by parents at birth. 

But increasingly, intersex people are identifying as exactly who they are.

The intersex community is rife with disagreements on the matter. The Intersex Society of North America states in its policy that children should not be encouraged to identify as intersex—despite the understanding that, unlike transgender and nonbinary people, intersex is a simple fact rather than a factor of identity.

“We advocate assigning a boy or girl gender because intersex is not, and will never be, a discrete biological category any more than male or female is, and because assigning an ‘intersex’ gender would unnecessarily traumatize the child,” says the organization on its website.

But the Organization Intersex International (OII), to which Zzyym belongs, believes that intersex children should be allowed to develop “their own sense of sex and gender identity” rather than having parents intervene and play “a game of speculation with another person’s life.”

Zzyym was raised as a boy and underwent several surgeries as a toddler that attempted to construct full male genitalia. The surgeries were largely a failure, leaving permanent scarring and lack of function. Adding to the physical pain was the emotional equivalent of a blackout: Zzyym’s parents never told them they were born intersex.

Zzyym underwent tests as an adult that confirmed physical intersex status, and in 2011 decided to embrace the term and amend their birth certificate so that it no longer listed a gender at all. They joined forces with OII-USA, and applied for a passport in 2014 after being invited to speak at the intersex group’s Mexico City conference.

On the Department of State’s passport website, the gender transition application appears to be a pretty smooth and simple process; that is, until you get to the line that says the new gender must be “male or female.” The State Department rejected Zzyym’s passport application, stating that they had to choose between genders—even if that choice was inaccurate. 

“This is who I am,” Zzyym told the Los Angeles Times. “This is how I was born. Many people are able to get their passports with their biological sex, and I should be allowed to do the same thing.”

The powerhouse LGBT law firm Lambda Legal filed suit on Zzyym’s behalf, and on July 20 they secured a minor victory in the case. Denver U.S. District Court Judge R. Brooke Jackson told the State Department at an initial hearing that they should issue the correct passport or face a court order that would mandate them to do so.

“But if you can only check the boxes for male or female on a passport application, and your gender has been legally determined to be neither (in the case of Jamie Shupe) or medically falls outside of those categories (in the case of Dana Zzyym), then marking one of those boxes constitutes perjury.” 

Zzyym’s attorney, Paul Castillo, told the Daily Dot that passport applications for nonbinary and intersex people were the ultimate catch-22.

“The State Department is alleging that they need to maintain the accuracy and integrity of the passport,” Castillo said. “But they’re asking Dana and other individuals to lie in order to obtain the passport, and be subject to criminal sanctions for lying about their gender.”

But if you can only check the boxes for male or female, and your gender has been legally determined to be neither (Jamie Shupe) or medically falls outside of those categories (Dana Zzyym), then marking one of those boxes constitutes perjury. According to U.S. law, “willfully and knowingly making any false statement in an application for passport” is a crime punishable by up to 25 years in prison. 

For Shupe and for Zzyym, there are only two available options: break the law by lying on a passport application and denying how they identify, or never get a passport—thus ruling out the possibility of ever leaving the country.

Zzyym hasn’t been able to get a passport or leave the country for two years—not even to cross the border into Canada.

But Castillo was optimistic after the July 20th hearing, when he said “the judge wasn’t buying” the State Department’s justifications for denying Zzyym an accurate passport.

“Government bureaucracy shouldn’t be that hard to update,” Castillo told the Daily Dot the day after the hearing. “’Sex’ is complex, and times are changing.”

There’s a number of ways the Zzyym case—which is the first major court case to challenge passport gender restrictions—can go forward. Ideally, the State Department would issue a policy change and add an “X” marker or something similar to passports. If it refuses, the judge will likely issue an order—which the State Department would likely fight in the 10th Circuit Court, possibly up to the Supreme Court. Between the Supreme Court’s currently liberal-leaning bench, its marriage equality ruling, and the Obama administration’s transgender-friendly policies at the federal agency level, the department would have a fierce battle on its hands.

Even if the State Department were to continue to fight the Zzyym lawsuit, the agency would risk an onslaught of similar lawsuits from people like Shupe.

Castillo said that if the State Department does decide to comply with Zzyym’s application and issue a passport, it’s unlikely that it would be a singular exception—noting that U.S. Attorney Ryan Parker alluded to the case’s sweeping significance during the Denver hearing.

“Parker did mention that the State Department is reluctant to make any sort of ad-hoc decisions,” Castillo told the Daily Dot. “It wouldn’t make any sense for them to allow a passport to one individual and not consider their overall policy as a matter of knowing there are other individuals out there who would like accurate passports.”

In its initial response to a Daily Dot request, State Department spokesperson Drew Bailey said that he could not comment on individual passport applications due to privacy law. A second email was sent that outlined Shupe’s case as a hypothetical: “Say, for example, a court had determined a U.S. citizen to legally have a gender other than male or female. Wouldn’t they be breaking the law if they were to apply for a passport as male or female when their gender is legally defined otherwise?”

To that, Bailey emailed back a non-answer: “The Department’s policy, like that other federal, state, and local government agencies, requires the use of binary (M or F) sex identifiers.” A third email was sent asking for clarification on what would happen if a person whose gender is legally neither male nor female were to apply for a passport and be flatly denied. Are intersex and nonbinary people just not allowed to travel internationally?

That’s where emails back from the department ended with a formulaic “can’t comment on pending litigation” response.

What is sex? The State Department and government can’t say sex is purely biological,” says  Shupe. “Because it’s already made trans women and men into females and males under the law—despite their biology being female or male.”

The Oregon Department of Motor Vehicles was more forthcoming. In an email to the Daily Dot that laid out “where we are today,” it was clear that the DMV was still scrambling to adjust to being blindsided by the newly legal gender identity. But it was also clear that the agency doesn’t oppose it—it just needs some time to figure out what the hell it’s supposed to do about it.

“As far as we know, this is a first in the nation, so Oregon is engaged in original research,” said Oregon DMV spokesperson David House in a statement emailed to the Daily Dot. “Someday, other states and organizations may be asking us for help in their research on this issue.”

According to the statement, the agency has a slew of complex questions to answer before it can even begin to make adjustments to its internal systems and policies.

“The DMV has asked the Oregon Department of Justice to study whether there are any law changes required to comply,” said House. Among other concerns, the DMV wants time to talk with other agencies that issue identification (“So far, no other state we’ve talked to has dealt with a nonbinary gender designation”) and to research preferred gender marker designations with advocacy groups and affected communities.

“Is just one ‘nonbinary’ designation,” House wondered, “adequate for all situations?”

While the Oregon DMV showed what appeared to be an earnest, and detailed, interest in continuing the progression towards expanded gender options, the State Department’s ultimate response to Shupe was the bureaucratic equivalent of a brick wall.

But even the encouraging statements from the Oregon DMV were confusing at times. House told the Daily Dot that the agency “cannot comply immediately because its computer systems cannot produce a driver’s license or identification card without M or F.” Is it really that hard to add one letter to a computer system? House also raised questions about whether the state legislature would need to be involved in statutory changes—something that wouldn’t even be discussed until 2017.

It was easy to see how Oregon was taken by surprise by Shupe’s court decision. Still, it was starting to feel like both agencies—state and federal—were just dragging out an inevitable change, avoiding a need that wasn’t going to disappear any time soon.

On July 11, Jamie Shupe messaged me with exciting news: “The State Department cashed my $256 check!” Writing back and forth and mulling over the implications of such a seemingly small-yet-significant detail, we both wondered whether that meant the application was being processed all the way through. But two days later, a letter arrived that suppressed Shupe’s excitement into a groan.

The July 13 State Department letter, stamped with the letterhead of its Sterling, Virginia, headquarters, appeared to be the same boilerplate text sent to everyone undergoing a gender transition and applying for a new passport. It added insult to injury by referring to Shupe—who had officially transitioned from male to female in 2013—as “mister.”

Document via Jamie Shupe

But Shupe had sent a letter—one written by their doctor at the Veterans Administration, which I read and which appeared to fulfill all of the State Department’s requirements. The one requirement it did not fulfill, however, was the one requirement it couldn’t conceivably fulfill—stating that Shupe was transitioning to male or female.

The new gender, male or female, must be stated.

Male or female. The words appeared in the letter with the same stubborn refusal to budge as they had on the U.S. Passport website and in the State Department’s briefs in the Zzyym case. And then, maddeningly, was another demand that was impossible to comply with if Shupe were to choose a gender for the sake of obtaining a passport: “I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct.”

Shupe’s doctor, or any doctor anywhere, can’t really go on record stating that Shupe is male or female; not only because that’s not what Shupe is, but also because a United States court declared them to be neither. Was the State Department asking doctors to perjure themselves, too?

At the time of this publishing, Shupe is still waiting for the State Department to respond to a revised doctor’s letter. The Army ID card office in Vancouver, Washington, also had yet to respond to a July 1 application for an updated card reading “nonbinary,” despite a clerk’s assurance that someone from the office would call and discuss the issue over the phone.

Meanwhile, Castillo and Zzyym await a ruling on the case that would have a direct effect on Shupe’s ability to get accurate identity documents. Castillo told the Daily Dot that he really had no clue as to the State Department’s next move, or when the judge would issue the expected order that could force the agency’s hand—or move the case up the chain, perhaps to the Supreme Court.

Despite U.S. Attorney Ryan Parker’s claims in the Denver courtroom that a third gender option on passports would throw states into chaos, the Associated Press reported that Judge R. Brooke Jackson appeared “exasperated” by the excuses.

“A lot of things are changing in our world,” said Jackson.

Indeed they are. Things are changing, it seems, faster than the U.S. government can keep up with them.

Mary Emily O'Hara

Mary Emily O'Hara
