Follow-up Letter About Legal Issues (Birth Certificate Policy)

Follow-up letter sent after meeting with the Bureau of Vital Statistics (February 2003) to discuss the need to change NYC's birth certificate gender change policy.


February 25, 2003

Dr. Steven Schwartz, PhD.
The City of New York Dept. of Health
125 Worth Street Room 144
New York, NY 10013-4090

Dear Dr. Schwartz:

I am writing to follow up on our February 7, 2003 meeting at the Bureau of Vital Statistics. Once again, I would like to thank you for your willingness to meet with legal and medical experts who specialize in transgender law and medicine and to hear our thoughts on what an improved Bureau of Vital Statistics policy regarding sex designation change might look like. We learned a great deal at the meeting about the concerns you face as a policy maker and we hope that you found the information we presented helpful.

I wanted to provide you with some information on current trends in transgender law that support our recommendation that the new birth certificate policy should not be based on proof that an applicant has undergone sex reassignment surgery, which has been the policy since 1969. As we discussed, requiring an individual to undergo any particular surgical procedure before his or her birth certificate sex designation can be changed does not conform to current medical practice for the treatment of transgender people. A wide variety of medical treatments exist, and different procedures are suitable for different transgender patients, depending on numerous factors. Following internationally recognized standards of care for the treatment of transgender people, physicians and mental health providers work closely with their patients to determine which treatments are necessary and appropriate for each individual's transition to be complete. We believe that it is best to leave those medical decisions in the hands of expert providers and to revise the Bureau's current policy to reflect contemporary medical knowledge and practice in this area. Specifically, we believe the Bureau should permit individuals to obtain new birth certificates when they have completed the necessary treatment for their transition to the new gender to be permanent, as verified by their medical providers.

Current trends in the law reflect this approach. Increasingly, legal trends favor an individually-tailored approach that allows medical providers to determine when an individual has completed their transition. Policy makers and judges are moving away from using reconstructive genital surgery as an indicator of gender identity, recognizing that many transgender people pursue a broad variety of surgical procedures and hormone therapy regimes that are individually tailored for them, given their medical histories, and that do not necessarily include genital reconstruction. As a result, the rights and privileges of transgender people are now much less dependent upon a person's surgical history. As I pointed out during the meeting, 90% of female-to-male transsexuals do not undergo phallosplasty: it is prohibitively expensive and medically risky, and results are often disappointing. To institute a birth certificate policy that required genital reconstructive surgery would deny the vast majority of transgender men the ability to get a new birth certificate.

Significantly, in recent years, other states have addressed the same issue that New York City is currently facing with regard to birth certificate sex designation change. Iowa changed its birth certificate statute to allow the state registrar to issue a new birth certificate when the state registrar receives a "notarized affidavit by a licensed physician . . . stating that by reason of surgery or other treatment by the licensee, the sex designation of the person has been changed."1 This language recognizes that not all transgender people will complete their transition by having surgery, but that they can still be recognized as the new sex if they have completed whatever treatment is necessary as determined by their doctors.

Similarly, Virginia recently clarified that its requirements for a transsexual person to obtain a new birth certificate do not necessarily require genital reconstructive surgery. Lambda Legal helped negotiate with the Virginia Office of Vital Records after the Office initially refused to change the sex designation on a transgender man's birth certificate unless he provided evidence that he had undergone phalloplasty. After working with Lambda to better understand the variety of treatments that transgender people undergo to complete their transitions, the Office of Vital Records recognized that although he had not undergone phalloplasty, he had completed all necessary treatments to permanently change his sex to male, and issued him a new birth certificate.2

Another recent example of the increasing recognition in the law that surgical status should not determine sex for transgender people is the January 10, 2003 ruling of New York Judge Marilyn Shafer in Hispanic AIDS Forum v. Estate of Joseph Bruno.3 This case addressed the rights of transgender women to use bathroom facilities designated for women. Defendant's council requested evidence of the transgender women's genital status during discovery. The denied them access to this information, stating "since the status of a transgendered individual is not dependent upon their physical anatomy . . . information about the anatomical sex of [plaintiff's] clients, and whether and when such clients underwent physical procedures, is immaterial." Similarly, on February 21, 2003, Florida Circuit Court Judge Gerard O'Brien ruled that Michael Kantaras, a transgender man, was legally male in Florida despite the fact that Michael did not have any reconstructive genital surgery. Based on the extensive medical evidence presented in the case, Judge O'Brien concluded that it would be arbitrary and irrational to impose such a requirement.

This principle is also being codified more and more into anti-discrimination laws based on the understanding that frequently a transgender person's sex will be questioned when attempting to access rights or privileges. Legislators have determined that it is inappropriate make surgical status the determining factor in whether a transgender person has completed transition to the new gender. For example, Boston's anti-discrimination law, passed in October 2002, includes explicit language to prevent proprietors of sex-segregated facilities from basing determination of a transgender person's access to such facilities on surgical status. The law requires that determinations of sex for transgender people be based upon "the gender identity publicly and exclusively expressed or asserted by the person."4

Similarly, Human Rights Commissioners in both New York and San Francisco are addressing this same issue as they draft compliance guidelines for the implementation of their laws. San Francisco, which has included a prohibition on gender identity discrimination since 1994, is rewriting its guidelines to remove any reference to surgical status as a basis for determining the sex of a transgender person. In addition, the new guidelines will consider it harassment to ask a person to reveal their genital or anatomical status to determine their gender.5 I am a member of the committee that is currently drafting the Compliance Guideline's for New York City's gender identity anti-discrimination law, and we are intending to use the same language that San Francisco uses regarding this issue. For reasons of consistency, then, it would make sense for the Bureau of Vital Statistics to move away from a standard that focuses on surgical status and toward a standard that requires documentation that transition is complete, as is determined on an individual basis by treating a physician and/or mental health provider.

These examples provide a window into the how courts and legislators are increasingly recognizing that the sex of transgender people should not be determined with reference to a surgical status. Transgender people undergo varying treatments depending on factors examined by their medical and mental health providers. These people are the experts in helping ensure that a change of sex is healthy, appropriate, and permanent, and their judgments should be considered dispositive by the Bureau of Vital Statistics.

I want to include one final note about your suggestion during our meeting that you might change the policy to require a court order of change of sex in order to change sex designation on birth certificates. I do not believe such a policy would be workable for a two reasons. First, there is no legal process in New York that a person can use to request a "legal change of sex." Transgender people do often apply for legal name changes, but the New York Courts have repeatedly held that court orders for changes of name are not legal changes of sex.6 Second, there is currently no mechanism for requiring a court order in the City's birth certificate statute, and it is unclear to me whether legislation would be required to provide such a mechanism.7

I hope that this information is useful to you in your construction of the Bureau's new policy. I appreciate your interest in creating a fair policy that conforms to current legal and medical standards for recognizing completed and permanent gender transitions. A new policy that is accessible to all people who have completed transition will provide an important opportunity for transgender people to document their gender and to access employment and educational opportunities on an equal basis with all other New Yorkers. If I can be of any further assistance or if you have any questions please do not hesitate to contact me at (646) 602-5638.

Sincerely,

Dean Spade, Esq.

1 Iowa Code § 144.23 (2002) (emphasis added).
2 For a full summary of the case, see "Amending Birth Certificates to Reflect Your Correct Sex: In re Birth Certificate Amendment of John Doe" at http://www.lambdalegal.org/cgi-bin/iowa/documents/record?record=1164.
3 No. 112428/01, slip op. at 6 (NY Supreme Court, January 10, 2003).
4 The Boston ordinance is attached.
5 The SF draft guidelines are attached.
6 Matter of Rivera, 627 N.Y.S. 2d 241 (Feb. 14, 1995)
7 NY Pub Health §4176 (McKinney's).