Oregon Judge Approves First Known “Non-Binary” Gender Classification While Georgia Judge Rejects Name Change For Transgender Male

There were two decisions last week that show the current legal tensions over transgender rights. In Oregon, Jamie Shupe, 52, who identifies as neither a male or female was allowed to change from a “female” to a non-binary classification. This is believed to be the first such order in the country. Across the country, Rowan Feldhaus, 24, (who was born a female but identifies as a male) was denied a name change by a judge. These cases follow a decision last month Haque said her organization increasingly hears from non-binary people. Last month, the Gresham-Barlow School District in Oregon paid an elementary school teacher $60,000 after the non-binary teacher complained of no gender neutral bathrooms and colleagues continuing to refer to “he” or “she” rather than using “they” in reference to the teacher.

Multnomah County Circuit Court Judge Amy Holmes Hehn (right) ruled that Shupe could change gender classification from female to non-binary. Shupe, a retired Army sergeant, who began transitioning in 2013 from male to female. Shupe chose a new name of “Jamie” and says that “My gender identity is definitely feminine. My gender identity has never been male, but I feel like I have to own up to my male biology.” Thus, Shupe wants to be called a “third sex” or non binary gender. Shupe objects to the use of “he” or “she.” Hehn agreed and ordered the gender change.

A very different reception awaited Feldhaus who was refused a petition to change from Rebeccah Elizabeth to Rowan Elijah by Columbia County Superior Court Judge J. David Roper (left). Feldhaus was born a female but identifies as a male and wanted a more neutral sounding name. However, Roper found the name was too masculine and took particular issue with the use of Elijah, saying that

“I don’t know anybody named Elijah who’s female . . . I’m not going to do that. I’ve never heard of that. And I know who Elijah was, one of the greatest men that ever lived.”

If this is an accurate quote, I find the ruling highly questionable since it seems to bring in the judge’s identification or recognition of the religious understanding of Elijah. It is also highly questionable for a court to sit in judgment on the propriety of particular names — forcing citizens to convince the judge on the appropriateness of the name. As have previously discussed how other countries have far more stringent rules on both the adoption and changing of names. We have also discussed a previous Tennessee judge who barred a couple from naming their child Messiah because it is reserved for Jesus Christ. The judge was later charged with an ethics violation over the order.

Feldhaus met the requirements for a name change and included an affidavit from his therapist confirming transgender status and the importance of a name change for the treatment for gender dysphoria. Feldhaus taking hormone replacement therapy with testosterone shots. However, Roper ruled that “I do not approve of changing names from male to female – male names to obvious female names, and vice versa.”

The Georgia ruling in my view is unsupportable. However, the Oregon controversy comes down to a matter of state law on whether the state allows for a new category for gender other than biologically determined genders. The issue raises obviously difficult constitutional and policy questions. A state could argue that there is a rational basis for using biological determinations on gender while allowing names changes to fit whatever gender or non-gender a person prefers.

What do you think?