REPORT AND RECOMMENDATION

OF THE

NEW YORK COUNTY LAWYERS’ ASSOCIATION

COMMITTEE ON LESBIAN, GAY, BISEXUAL AND TRANSGENDER ISSUES REGARDING

REVISION OF POLICIES WITH RESPECT TO A CHANGE OF SEX DESIGNATION ON NEW YORK STATE AND NEW YORK CITY BIRTH CERTIFICATES FOR TRANSGENDER INDIVIDUALS*

 

This report was approved by the Executive Committee of the Board of the New York County Lawyers’ Association on February 23, 2012.

 

The Committee on Lesbian, Gay, Bisexual and Transgender Issues (the “Committee”) of the New York County Lawyers’ Association (“NYCLA”) supports the adoption by New York State and New York City of policies that permit individuals seeking to change the sex designation on their birth certificate to provide a letter from a medical doctor stating that appropriate medical treatment, as medically determined for the individual patient, has been undertaken to ensure that the transition is permanent, and to eliminate any requirement that the individual undergo sex reassignment surgery or hormone therapy as a prerequisite for such change. If a sex marker is required on an identity document, that marker should recognize the person’s lived gender, regardless of reproductive capacity or genetic makeup.

 

Birth Certificate Sex Designation

 

A birth certificate is an important document used to prove one’s identity and citizenship. It is a vital document needed to obtain identification such as a driver’s license or passport, to prove eligibility for employment, and to apply for many types of social services. The ability to change one’s sex designation on birth certificates is an important issue for many transgender people. Transgender persons face serious obstacles in accessing these necessary identity documents without a birth certificate that accurately reflects their current gender. Incorrect gender identification may lead to bias, harassment, or discrimination, and makes it more difficult for government officials or agencies to accurately identify transgender people.

 

The requirements and process to change the sex designation on a birth certificate, and whether that is even possible, vary from state to state. Many states model their policies for amending birth certificates on the Model Vital Statistics Act and Regulations (the “Model Law”). The Model Law, developed by consultation between the state and federal governments, was last updated in 1992. It is intended to be a guide for states, so that states can model their own vital statistics laws and regulations after its suggestions. The Model Law states that persons wanting to change their sex on their birth certificate should present a court order certifying that their sex has been changed by surgical procedure.

 

New York Policies

 

The New York State Department of Health, Vital Records Division has a policy providing for the change of sex designation on birth certificates upon the receipt of a completed application; a letter from the surgeon specifying date, place, and type of sex reassignment surgery performed; an operative report from the sex reassignment surgery; and additional medical documentation.

 

New York City has a separate vital records division from the state. New York City’s current policy, which resulted from a 1965 report and was adopted in 1971, provides that a new birth certificate will be filed when the name of the person has been changed pursuant to court order and proof satisfactory to the New York City Department of Health and Mental Hygiene has been submitted that such person has undergone “convertive” surgery.

 

Current Medical Treatment

 

The requirement of the Model Law and the policies of New York State and New York City that transgender persons provide proof of sexual reassignment or convertive surgery fail to meet modern standards of medical care for the treatment of transgender individuals. This requirement is based on the misconception that sex reassignment surgery is part of every transgender person’s transition. This misconception that gender reassignment consists of a single “sex-change operation” has resulted in legal policies that have little basis in the current treatment procedures for transgender individuals. In fact, there are many different kinds of treatment that people seeking gender reassignment pursue, including bilateral mastectomy, orchiectomy, phalloplasty, hysterectomy, vaginoplasty, hormone therapy treatment, brow reduction, facial implants, vaginal closure, voice surgery, metaodioplasty, augmentation mamaplasty, tracheal shave, liposuction, hormone therapy, group or individual counseling, and psychotherapy. Medical professionals determine what treatment is medically appropriate for each transgender patient, taking into account pre-existing medical conditions, mental health status, and lived gender experience.

 

The World Professional Association for Transgender Health (“WPATH”), recognized by the American Medical Association as the authority in this field, notes that different patients will have different medical needs. The WPATH Standards of Care provide that surgery – particularly genital surgery – is often the last and the most considered step in the treatment process for gender dysphoria. It notes that many transsexual, transgender, and gender nonconforming individuals find comfort with their gender identity, role, and expression without surgery. In fact, surgery is not a part of the transition process for most people. The Model Law ignores the differing health needs of transgender individuals.

 

Policies of Other Jurisdictions

 

Although at least three states forbid the amendment of birth certificates based on sex changes (Idaho, Ohio, and Tennessee), many states have statutory provisions based on the Model Law permitting birth certificates to be amended upon completion of sex reassignment surgery. However, there is a growing trend in state and federal policies to permit changes of gender markers based on certification by a medical professional that an individual has undergone appropriate medical treatment for gender transition, without the requirement for sex reassignment surgery.

 

The U.S. Department of State updated its policy on passports in 2010. When a passport applicant presents a certification from an attending medical physician that the applicant has undergone appropriate clinical treatment for gender transition, the passport will reflect the new gender. No additional medical records are required and sex reassignment surgery is no longer a prerequisite for passport issuance. The policy for “Consular Reports of Birth Abroad,” which are federal birth certificates for U.S. citizens born outside of the U.S., also no longer requires proof of surgery. The new policy and procedures are based on standards and recommendations of the WPATH.

 

The Department of Homeland Security adopted a policy permitting states to determine gender for purposes of identification documents. Regulations released in 2008 under the REAL ID Act of 2005 state: “REAL ID driver’s licenses and identification cards must include . . . [g]ender, as determined by the State.” Concerns about transgender individuals were specifically taken into account by this state-deference policy: “DHS will leave the determination of gender up to the States since different States have different requirements concerning when, and under what circumstances, a transgendered individual should be identified as another gender.”

 

A number of other states have successfully changed their birth certificate policies in a fashion similar to the Department of State, and could serve as models for a revised New York policy. For example, California law, which reflects the current medical understanding of transgender identity, provides that whenever a person has “undergone clinically appropriate treatment for the purpose of gender transition, the person may file a petition with the superior court in any county seeking a judgment recognizing the change of gender.” Iowa has a statute that allows the state registrar to issue a new certificate of birth for a person born in the state, when the state registrar receives a notarized affidavit by a licensed physician and surgeon or osteopathic physician and surgeon stating that by reason of surgery or other treatment by the licensee, the sex designation of the person has been changed. Vermont law provides that “an affidavit by a licensed physician who has treated or evaluated the individual stating that the individual has undergone surgical, hormonal, or other treatment appropriate for that individual for the purpose of gender transition shall constitute sufficient evidence for the court to issue an order that sexual reassignment has been completed.” Washington State’s statutes and administrative code, like New York State’s, are silent about amending vital records and individuals in Washington may only rely on policy by the Washington State Department of Health. Unlike New York State, however, Washington’s policy is to issue an amended certificate upon submission of a letter, on letterhead, from the requestor’s medical or osteopathic physician stating that the requestor has had appropriate clinical treatment, which may not include sex reassignment surgery or hormone therapy.

 

Public Policy Considerations

 

Medical Considerations

 

There is no medical rationale for linking legal recognition of a transgender individual’s identified gender to genital reconstructive surgery or any other specific treatment that is not medically appropriate or possible for all transgender persons. In fact, a strong majority of transgender individuals have not had the type of genital surgeries required by the New York policies. A recent survey of transgender individuals in the United States found that as of 2009 fewer than 20% of transgender women had genital surgery and fewer than 5% of transgender men had genital surgery, due to the severe limitations and medical risks associated with this surgery at this time. For female-to-male transgender individuals, the most common sex reassignment surgery is chest surgery. Similarly, hormone treatment options are much like surgery in that they are not always viable or desirable for each individual. Hormone therapy is not always accessible (due to lack of providers or cost), wanted by the individual, or medically possible for all transgender individuals.

 

Sex reassignment surgeries are not medically appropriate or possible for all transgender persons. Many transgender individuals do not want genital surgery at all, and many simply cannot afford it. Furthermore, many of the surgical procedures required by New York’s policies result in permanent sterilization. Therefore, those individuals who wish to have children may be particularly unwilling to undergo genital surgeries.

 

Given the contemporary medical understanding that gender identity disorder is a legitimate medical condition and that sex reassignment surgery is not the only effective treatment, it is cruel and senseless not to afford legal recognition of an individual’s gender identity when such individual has successfully been treated in accordance with current standards of treatment. The impact on transgender individuals who are not able to obtain legal recognition of their identified gender is devastating. From a practical perspective, this inability exposes the person to the constant threat of exposure and invasion of privacy, frequently prevents the person from obtaining employment or advancing in his or her career, and creates innumerable other problems ranging from the inability to travel safely outside the country to the inability to purchase health or life insurance in the person’s identified gender. From a psychological perspective, the impact is even more devastating and may effectively negate the therapeutic benefits of undergoing a medically recognized gender reassignment treatment, resulting in profound depression and dysfunction.

 

Legal/Practical Considerations

 

Similarly, there is little legal or practical reason for linking legal recognition of a transgender individual’s identified gender to sex reassignment surgery or any other specific treatment that is not medically appropriate or possible for all transgender persons. Common justifications for requiring sex reassignment surgery in order to change the gender on a birth certificate include the prevention of fraud and the need of institutions to segregate persons by sex.

 

In 1965, the New York City Commissioner of Health requested the New York Academy of Medicine’s Committee on Public Health to convene a group of medical specialists to consider the psychological, legal, and biological implications of granting petitions to change the gender indicated on a birth certificate. The committee concluded in its 1965 report that “the desire of concealment of a change of sex by the transsexual is outweighed by the public interest for protection against fraud.” The official minutes of the meetings indicate that the issue of marriage was often raised during discussions of fraud. The first draft of the committee’s report listed as one public interest “the protection of a prospective spouse against fraud.” The committee was also told that new birth certificates could also be used to get benefits reserved for one gender, or escape obligations for the other. The issue of fraud, however, rests on the notion that an individual can never truly change his or her sex and that the permanence of a transgender individual’s gender identity could be guaranteed only by sex reassignment surgery. Current medical knowledge refutes this proposition. For proponents of the current policy requiring sex reassignment surgery, sex is determined by the body and particular surgical body modifications guarantee permanence. The medical community’s view is that gender is determined by one’s gender identity; thus, one’s legal sex designation should be based on gender identity.

 

More recently, the concern about fraud has been raised in the context of deterring identity fraud and preventing individuals intent on attacking the United States from obtaining identity documents that mask their true identity. However, this proposition seems unrealistic given the proposed procedural process to change one’s gender would still mandate treatment and review by medical professionals, appearances in court to change one’s name, and submission of supporting evidence, including current identity documents, for the review of a governmental authority. Indeed, in adopting a policy permitting states to determine gender for purposes of identification documents for transgender persons, the Department of Homeland Security has implicitly recognized that any hypothetical threat to national security caused by an amended birth certificate is not sufficient enough to override a state’s policy that permits a transgender individual to change the sex marker on his or her birth certificate.

 

Another common argument is that institutions that need to segregate persons by sex may be adversely affected by permitting transgender individuals to change the sex marker on their birth certificates. In 2006, the Board of Health, which regulates the registration of births in New York City for the Department of Health and Mental Hygiene, convened an external committee to develop updated policies and procedures that would govern corrections of the sex designation on the birth certificates of transgender persons. The committee proposed amendments to the New York City Health Code that would have eliminated the requirement of surgery for the issuance of a corrected birth certificate. In rejecting the committee’s recommended amendments, the Board concluded that “the proposal would have broader societal ramifications than anticipated. Besides being a key element of identity, gender has important implications for many societal institutions that need to segregate people by sex. These include hospitals, schools and jails, as well as some workplaces.” Specifically, the New York City Department of Correction (“DOC”) and New York City Police Department (“NYPD”) voiced concerns regarding the effect of removing the convertive surgery requirement on public safety, including the custody and housing of inmates, arrests, criminal investigations, identity theft, counterterrorism concerns, and the detention of prisoners.

 

Any need to segregate persons by sex in hospitals, prisons, or other facilities does not justify adhering to a surgical requirement that medical authorities have concluded is unjustifiable on medical or scientific grounds. Institutions may promulgate their own rules for determining the proper assignment of individuals, transgender or otherwise, in sex-segregated facilities. Indeed, because New York has control only over birth certificates of persons born in New York, New York institutions already must address situations in which transgender persons who have not undergone sex reassignment surgery have birth certificates from other jurisdictions that match their lived sex.

 

Moreover, transgender persons in New York can already obtain government-issued identification with a changed sex designation on a driver’s license, state ID card, or passport with a letter from a doctor stating that the person has transitioned to a sex other than that currently indicated on the document; surgery is not required. The New York State Department of Motor Vehicles will issue a driver’s license with a corrected sex designation to an individual who provides a letter from a medical or mental health professional that confirms the individual’s “predominant gender” without a surgical requirement. There is no rational reason to permit a change of gender on such identification documents and not to permit a similar change on a birth certificate.

 

Conclusion

 

Thus, based on the foregoing discussion, refusing to legally recognize transgender persons’ identified gender serves no purpose.25 It impedes their ability to live and work in their new gender, in accordance with their medically prescribed treatment. Being able to obtain correct identity documentation is the key to equal participation in employment and educational opportunities for a transgender person. Rather than erecting unnecessary barriers in the path of transgender individuals, the law should encourage and support their successful adjustment by providing them with the legal recognition necessary to be productive members of society.

 

Recommendation

 

At the time New York’s policies regarding birth certificate amendments or corrections of gender were adopted, they were consistent with contemporary knowledge. However, since that time, medical and legal approaches to gender identity and expression have changed significantly, and it makes sense to update the policies to reflect this revised body of knowledge. Refusing to legally recognize a person’s identified gender identity serves no rational purpose. No person should have to undergo surgery or accept sterilization as a condition of identity recognition. It also is appropriate from a medical point of view to allow a physician to tailor treatment to the needs of the individual transgender patient.

 

The Committee recommends that NYCLA support the adoption by New York State and New York City of a policy that requires individuals seeking change of sex designation to provide a letter from a medical doctor stating that appropriate medical treatment, as medically determined for the individual patient, has been undertaken to ensure that the transition is permanent, and to remove any prerequisite of sex reassignment surgery or hormone therapy as a condition for such change. If a sex marker is required on an identity document, that marker should recognize the person’s lived gender, regardless of reproductive capacity or genetic makeup.