A Third Option: Understanding and Assessing Non-binary Gender
Policies in the United States
Nicole M. Elias
CUNY John Jay College
San Diego State University
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A Third Option: Understanding and Assessing
Non-binary Gender Policies in the United States
John Jay College of Criminal Justice
San Diego State University
Our fundamental understandings and treatments of gender and gender identity within the United
States are evolving. Recently, a few countries and several U.S. states have moved away from the
binary categories of male and female to include a non-binary gender option for official state
documents. This third, gender-neutral option, is usually represented as â€œXâ€ where â€œMâ€ for male
and â€œFâ€ for female traditionally appeared. The purpose of this study is twofold; first, to utilize
Iris Marion Youngâ€™s theory of oppression to help contextualize the historical oppression of
non-binary gender identity recognition by the State, and second, to analyze recent efforts by U.S.
states to include non-binary gender categories. Using Youngâ€™s theory for normative explanation
along with the Open Society Foundationsâ€™ (OSF) practical recommendations, we present a simple
administrative framework for comparing proposed, adopted, and enacted non-binary gender policies across the United States. Tying each OSF best practice to one of Youngâ€™s faces of oppression, we are able to assess each law or policiesâ€™ effectiveness in dismantling the oppressive
binary constructs of society.
Although our assumptions about gender identity and expression come to us early in life, gender is not a binary construct of only male and female. In recent years, many individuals have
eschewed conventional gender expression, in favor of constructs that better represent their
true identities, including agender, nongendered, and genderless non-binary designations (see
Appendix 1 for a list of commonly used gender identity definitions).1 The â€œXâ€ marker is a
gender-neutral option where â€œMâ€ for male and â€œFâ€ for female traditionally appeared. The
acknowledgment of this category is an improvement from the traditional binary system, but
may still be limiting for people who self-identify outside of the binary parameters. In other
words, the X option can result in â€œotheringâ€ people who fall outside of normative male,
female identities. Since 2000, there has been a nascent, but growing trend of governments to
include non-binary gender constructs for state-issued identity documents such as driversâ€™
licenses and birth certificates. The third, non-binary gender option has implications for many
aspects of society, including private and nonprofit organizations that rely on official state
Address correspondence Roddrick Colvin, Department of Public Administration, San Diego State University,
5500 Campanile Drive, San Diego, CA, USA. E-mail: [email protected]
Administrative Theory & Praxis, 42: 191â€“211, 2020
Copyright # 2019 Public Administration Theory Network
ISSN: 1084-1806 print/1949-0461 online
documents for their policy development, implementation, and enforcement. Arguably, these
changes represent the governmentâ€™s efforts to be more representative and responsive to a
diverse citizenry. To better understand the implications of non-binary gender designations,
we utilize Iris Marion Youngâ€™s (1990) theory of oppression to help contextualize the historical oppression of non-binary gender identity recognition by the State, and second, to analyze
recent efforts by U.S. states to include non-binary gender categories. Using Youngâ€™s theory
for normative explanation, we present a simple administrative framework for comparing proposed, adopted, and enacted non-binary gender policies across the United States. Tying each
framework component to one of Youngâ€™s faces of oppression, we are able to assess each law
or policiesâ€™ effectiveness in dismantling the oppressive binary constructs of society. Finally,
based on Youngâ€™s contextualization and our analysis, we pose remaining questions and provide recommendations for building theory and practice around non-binary gender
YOUNGâ€™S THEORY OF OPPRESSION: THE FIVE FACES
Gender is a pervasive organizational tool that shapes the way contemporary, U.S. society
functions. Iris Marion Youngâ€™s theory of oppression provides a means for understanding and
analyzing the dominant binary gender construct as well as the emergent body of non-binary
policy. According to Young (1990), justice in a group-differentiated society requires social
equality of all groups and a mutual understanding and affirmation of group differences by
actively voicing different social perspectives. Attempts to deny, mask, or eliminate difference
will result in unfair and unrepresentative administrative practices. By this logic, the binary
system exclusive of those who do not fall within the â€œMâ€ or â€œFâ€ categories is oppressive.
For Young, â€œOppression designates the disadvantage and injustice some people suffer not
because a tyrannical power coerces them, but because of the everyday practices of wellintentioned liberal societyâ€ (p. 41). Many forms of oppression are deeply ingrained in structural practices, and â€œare embedded in unquestioned norms, habits, and symbols, in the
assumptions underlying institutional rules and the collective consequences of following those
rulesâ€ (p. 41). In a gendered society, many of our unquestioned practices are rooted in what
Young calls â€œthe normal process of everyday lifeâ€ (p. 41). Considering the commonly held
assumptions surrounding both informal and formal gender definitions, ideals, and practices,
one does not recognize how gendered contemporary U.S. institutions are. For example, public restroom designations have traditionally been â€œmaleâ€ and â€œfemale.â€ It is only within
recent years that â€œunisex,â€ â€œgender-neutral,â€ and â€œall-genderâ€ restrooms have been adopted.
The question becomes one of how gender oppression occurs and becomes so pervasive
Young contends that social group formation is necessary for power differentials, and as a
result, oppression to occur. A social group is a collective of individuals differentiated from at
least one other group of individuals by cultural forms, practice, or way of life (Young, 1990).
Groups are relational, and exist only in the presence of â€œotherâ€ groups (i.e., women-men,
wealthy-poor, heteronormative-LGBT, etc.). Critics, especially those in the liberal tradition,
disagree with groups being the basis for analyzing social equity. Young (1990) takes issue
192 ELIAS & COLVIN
with treating each person â€œas an individualâ€, because she argues that: â€œindividuals should be
free to pursue life plans in their own way, it is foolish to deny the reality of groupsâ€ (p. 47).
To fully understand and address oppression, group identities must remain central to the discussion. Young explains, â€œGroup differentiation is both inevitable and a desirable aspect of
modern social processes. Social justice . . . requires not the melting away of difference, but
institutions that promote reproduction of, and respect for group differences without
oppressionâ€ (p. 47). It would appear from Youngâ€™s relational interpretation of group-based
justice, recognizing a non-binary identity option is a positive step in dismantling the exclusionary, binary system. To understand better the normative arguments against a binary gender
system and how to address oppressive gender practices, we provide an overview of each of
Youngâ€™s five categories or â€œfacesâ€ of oppression.
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