America has slowly begun to acknowledge that for many people, gender is much more complicated than simply being a man or a woman. And a growing number of Americans are seeking recognition of a third gender, neither exclusively male or female, under the label non-binary.
People typically think of transgender as meaning gender reversal, where someone identifies as the opposite sex from their birth sex. But transgender is an umbrella term used to cover a wide spectrum of people whose gender identity is different from the one they were assigned at birth.
More than one-third of transgender people describe themselves as non-binary, which the National Center for Transgender defines as "people whose gender is not exclusively male or female, including those who identify with a gender other than male or female, as more than one gender, or as no gender, identifying as a combination of genders or not identifying with either gender at all."
Non-binary people have always been part of the population. But for the first time, state governments in the U.S.. are beginning to recognize their identity. Oregon approved a third gender option on driver's licenses last week; California's Senate passed a law with the same aim, and similar legislation was introduced in both New York and the District of Columbia this week.
Non-binary people are now represented in popular culture as well. Actor Asia Kate Dillon, who is credited with being the "first non-binary actor ever to be portrayed on TV," plays a gender non-binary character on the Showtime series Billions.
"Hello, I’m Taylor. My pronouns are they, theirs and them,” Dillon's Billions character declares when introduced to one of the show's two protagonists. The scene likely also introduced the concept of non-binary people and non-gender specific pronouns to many viewers.
Why the gender on IDs matters
The issue of gender on official documentation is not merely a semantic one. Nearly one-third of transgender people said they were harassed, assaulted or denied service because their ID did not match their "gender presentation," according to the 2015 U.S. Transgender Survey from the National Center for Transgender Equality.
"Presenting an identification document that does not accurately reflect one’s sex and is inconsistent with one’s gender identity can trigger invasions of privacy, prejudice, stigma, violence and discrimination and harassment in a wide variety of settings, including in employment, education, public accommodations, health care, housing and interactions with the government, including with law enforcement," the LGBT civil rights group Lambda Legal wrote to the Oregon Department of Transportation arguing for the rule change to allow a third gender option.
Oregon became the first state to give residents the option to identify as neither male or female on their driver's licenses and state identification cards Thursday after a ruling by the Oregon Transportation Commission. Beginning July 1, those IDs will offer an "X" as a third option in addition to the traditional "F" and "M."
A bill passed the California Senate to allow the state's residents to change their gender identity on their birth certificates and state IDs, including driver's licenses, to "female, male, or non-binary." The bill is currently awaiting a vote in the state Assembly. Similar legislation has been introduced in New York and the District of Columbia.
Randy Thomasson, the president of SaveCalifornia.com and the Campaign for Children and Families, has derided what he sees as the spread of "sexual anarchy."
Thomasson argued against the legislation in California on the grounds that allowing people to change gender invites identity fraud.
"If one's sex can be officially 'changed' by simply — even repeatedly — filing an $11 form with the state government, it's going to be a lot harder to accurately identify 'non-binary' accused criminals in open court," Thomasson said in a statement. "The gender identity fraud that this radical bill would usher in is the antithesis of law and order."
According to Lambda Legal, there are at least eight countries that recognize more than two genders on passports or national ID cards: Australia, Bangladesh, Germany, India, Malta, Nepal, New Zealand and Pakistan. Thailand recognizes a third gender in its constitution but hasn't yet made that an option on government documents.
A struggle with identity
One of the first Americans to fight in the courts for recognition as non-binary is Jamie Shupe. Shupe made history last year after a ruling made the Army veteran the first person in the U.S. to be legally allowed to identify as neither male or female.
Shupe — who prefers the pronouns they, them and their — spent their childhood, adolescence and most of adulthood as a male. Shupe served 18 years in the U.S. Army, got married and had a daughter.
Through all that time, Shupe wrestled with their sexual identity, never comfortable living life as a male. The stress of hiding took a heavy toll.
"I’m actually on disability because of PTSD," Shupe said. "I’m not a combat veteran. I had deployed to Kuwait. I served in the Bosnia theater, I spent a year in Korea, but quite honestly, most of my military trauma came from being picked on for being thought of as being gay, or living in fear of getting thrown out of the military."
Shupe made the decision to transition to living as a female and began hormone replacement therapy in 2013. But even as Shupe began the process, they had doubts about becoming a woman.
"I only became a female because I had no other choice," Shupe said. "All of the systems channeled me in that direction, both medical and government, until I took a stand against that. It wasn't until I got to Portland and got exposure to the queer community that I then understood how wrong all of what had been done to me was."
For Shupe, the three years of living like a woman were nearly as painful as those spent as a man.
"Turning a male body, especially an older male body into a female, I think it really sets the stage for people committing suicide," Shupe said. "I mean you had to maintain a hyper-feminine appearance 24-7 or you were back to getting called sir."
Shupe believed their gender identity was more feminine than masculine, but was not interested in changing physically into a female through surgery. Shupe couldn't identify with the transgender women who felt they were "born in the wrong body."
"To me, they're basically viewing themselves as defective and thinking that they need to be fixed," Shupe said. "Instead, I view myself as just a unique variation of nature that's just fine like it is."
Non-binary: By the numbers
Statistics back up Shupe's concerns about suicide.
Forty percent of respondents to the 2015 U.S. Transgender Survey from the National Center for Transgender Equality said they had attempted suicide at some point, which is more than nine times the national average.
In addition, 10% reported a family member was violent toward them because they were transgender, 17% left school because of mistreatment, 47% said they were sexually assaulted, 29% lived in poverty, and 30% were homeless at some point in their lives.
Shupe's struggle is a common one among transgender people. The National Center for Transgender Equality found that 35% of the nearly 28,000 transgender respondents to its anonymous online survey identified as non-binary.
The Census does not keep data on transgender Americans, and estimates of the size of the overall transgender population vary. One recent study published in the American Journal of Public Health estimates that there are almost 1 million transgender adults in the U.S. Other studies have put the number lower, such as a 2011 study from the William Institute at UCLA, which puts the number at just under 700,000.
If 35% of people within that range are non-binary, that would make the number of non-binary people in the U.S. between 245,000 and 350,000.
When Shupe decided to fight to be legally recognized as non-binary, they expected a big legal battle, Shupe said.
"But in the end, the huge legal and non-binary civil rights battle that I expected to unfold going into this never came to pass; simply because this was always the right thing to do all along," Shupe said in a statement after the Oregon Transportation Commission's decision to include an X option.
"From a government perspective, there's no rational basis to deny it," said Lake Perriguey, the Portland-based lawyer who represented Shupe. Perriguey noted the lack of opposition to the change.
"A year is an incredibly quick shift in policy for the state," said Perriguey, who will be handing out X-marked doughnut holes when the Oregon DMV begins issuing IDs with a third gender option. "It's great when government works that way."
Shupe's argument to the DMV was so effective because Shupe had already been legally recognized as non-binary, Perriguey said. "And that's the same kind of argument Jamie will use to try to get a passport," the attorney added.
The next battle
The fight to get a third gender option on federal documents like passports is the next major hurdle in non-binary Americans' struggle for legal recognition.
Dana Zzyym, a Navy veteran from Colorado, has already taken a request for a third gender option to the State Department. Zzyym is intersex, meaning they were born with sexual anatomy that does not fit the typical definition of male or female.
The State Department cited fraud concerns when arguing against Zzyym's request in federal court. But the department's lawyer Ryan Parker said that "if states were to change their policy and were to issue driver's licenses that identified the driver's sex as 'X,' maybe that would be something that the State Department would need to take into account as it's reexamining its policy."
A federal judge ruled that the State Department's refusal to meet Zyym's request was "arbitrary and capricious." The judge ordered the government to come up with more convincing arguments against providing a third gender option or to change the policy.
The judge did not give a deadline for the State Department to satisfy the ruling, but Lambda Legal Senior Attorney Paul Castillo promised the non-profit would take action "relatively soon" if the government "continues to refuse to modify its policy."
"Not only is it a matter of safety and privacy, it's' a matter of human dignity," Castillo said.
Unlike Shupe's lawsuit in Oregon, there is opposition to the idea of a third gender option in California and on the federal level. And Shupe fears for their safety after some of the comments Shupe has read since becoming a focal point in the non-binary debate.
"All the Bible-thumpers believe that there’s only males and females according to the Bible," Shupe said when explaining the cause of their fears. "I’m the person that destroyed that in the United States."
Shupe said that once the federal government recognizes non-binary as a gender the battle will be won and Shupe hopes they can then stop being such a public figure.
"Once the State Department battle is over, I think I’ll just be back to being a normal person again living in relative obscurity," Shupe said. "I’m really proud that I did this, but the fame of it is a big burden. And I didn’t do it to get famous I did it because it had to be done."