Letter to Board of Health, October 2006, re: Birth Certificate Policy Change

Rena Bryant
Secretary to the Board of Health
125 Worth Street, CN-31
New York, NY 10013
October 30, 2006

Re: Comments pursuant to notice of intention to amend Article 207 of the New York City Health Code

Dear Secretary Bryant:

I am writing on behalf of the Sylvia Rivera Law Project in support of the Board of Health and Department of Health and Mental Hygiene's intention to amend Article 207 of the New York City Health Code regarding amendments to the gender on birth certificates. The Sylvia Rivera Law Project has appreciated working with the Department over the course of the last four years to help update the regulations concerning birth certificates for transgender people. We thank the Department and the Board for their thoughtful and thorough approach to investigating the concerns we and others raised about the current policy, as well as for their commitment to making sure that the policy is in line with current understandings of transgender healthcare and the realities of transgender people's lived experience. Throughout this process, we have also learned a great deal about the Department's goals related to maintaining security, protecting against fraud, and acknowledging the gravity of altering a vital record. We believe that the proposed amendments, with a few adjustments that I will discuss below, will come much closer to achieving all of these goals than the current regulation.

The Sylvia Rivera Law Project is a not for profit organization in New York City dedicated to serving low-income people and people of color who are transgender, intersex, or gender nonconforming. SRLP works to guarantee that all people are free to self-determine their gender identity and expression, regardless of income or race, without facing harassment, discrimination, or violence. SRLP is a collectively-run organization that provides free legal services, advocates for policy reform, supports community organizing efforts, brings precedent-setting law suits, and educates the public to achieve our mission. We have served over 700 clients and have close relationships with many expert medical and mental health providers in the area of transgender health. Therefore, we have had an opportunity to understand many of the problems that the current policy regarding change of gender on birth certificates presents. I think I can safely say that none of our clients feel that the current policy has worked for them.

The majority of our clients are not eligible for a new birth certificate under the current regulations because they have not had the specific type of genital surgery contemplated by the current regulation as interpreted by the Department of Health and Mental Hygiene. Many of them have had multiple other forms of treatment according to the treatment plan they developed with their providers, such as orchiectomy, electrolysis, mastectomy, hormone therapy, breast augmentation surgery, facial feminization surgery, supportive psychotherapy, tracheal shave, voice therapy, and/or hysterectomy. Even those who have had the specific forms of treatment currently required often do not have the specific documentation required, such as the operative report from the surgery or a post-operative psychiatric evaluation. Through working closely with transgender and intersex people and their providers, it has only become more and more clear to us over the years how very individualized the course of treatment for each person is. It is impossible to select any one form of treatment as the type of treatment to show that a person has completed their gender transition, as least while staying in line with the opinion of expert healthcare professionals and with the lived realities of transgender and intersex people.

For one example, I recently received a letter from an intersex woman. She was identified as male at birth because of the appearance of her external genitals. However, at puberty she experienced development of breasts, menstruation, and the other common aspects of female puberty, not those of male puberty. She learned that she had an intersex condition and that she had internal reproductive organs typical for women. She also identified as female. As soon as she became an adult she began living as a woman, consistent with her identity and her physical attributes, and has done so consistently since that time. Based on this information, she seems to be one of the relatively rare people who has completely transitioned without receiving any form of medical treatment at all. Under the current policy and under any other policy that required a particular form of treatment, she would never be able to receive a new birth certificate that reflected her true, current, lived gender, regardless of the opinion of her medical or mental health care providers. There is no legitimate reason to have a policy that is not sufficiently flexible to work for all transgender and intersex people who have evidence that they have transitioned.

For those people who cannot access a new birth certificate, presenting a birth certificate with the wrong gender on it often has a major impact in their lives. I have one client who had a part-time low-wage job and was offered a higher-paying, salaried, full-time position. She turned down the offer because the job required foreign travel. She felt that without a corrected birth certificate, she would not be able to obtain a passport showing the right gender, and given her female identity and appearance she feared for her most basic physical safety if she had to travel using a passport that designated her as male. I have another client who fled to a domestic violence shelter to escape a severely abusive relationship, only to be kicked out and become homeless when she was not able to produce a corrected birth certificate. I also have many clients who had to produce a birth certificate when they applied for public benefits or when they started a job. The uncorrected birth certificate revealed them to be transgender and subsequently they were subjected to serious verbal harassment and discrimination. Having a birth certificate or other identity document that still shows the assigned sex at birth is also a hindrance to any law enforcement or other government official attempting to correctly identify the individual.

For those people who do receive new birth certificates under the current policy, many experience receiving a birth certificate that eliminates any gender designation as a great indignity. It is stigmatizing for transgender people who have proven their complete transition to be the only ones singled out for this genderless birth certificate. Also, on at least one occasion a client came to us because a federal government agency wanted to see a birth certificate with a gender listed on it and had some concerns about the validity of our client's amended birth certificate.

For all of these reasons, the Sylvia Rivera Law Project strongly supports the adoption of the proposed amendment to the regulation. Gathering evidence from treating professionals about the completion of transition without requiring evidence of one arbitrary particular form of treatment succeeds in focusing on the question most relevant for birth certificate determinations and permits deference to the professionals with the most relevant information and experience to make the assessment for the individual. This approach also has the advantage of less need for amendments in the future as knowledge in this field continues to develop.

However, there are some aspects of the proposed amendments that remain troubling, in that they are not supported by current medical and mental health standards and would keep some transgender people born in New York City from obtaining appropriate documentation. These aspects of the proposed amendments were not a part of the recommendations of the expert advisory committee convened by the Department. Therefore, we make the following recommendations for changes. It is our sincere hope that the Board of Health will see fit to consider these recommended changes with the same care they have considered other aspects of the regulation and will address these problems before promulgating the final regulation.

  1. The proposal should be revised to remove the requirement that applicants live in their gender for two years before applying for a new birth certificate.

    The two year requirement has no basis in current medical or mental health recommendations or treatment. Some transgender people transition completely, including with genital surgery when it is indicated, in considerably less than two years. Also, some transgender people transition completely but are not always able to live fully as their gender at all times because they lack an accurate birth certificate.

    Specifically, § 207.05(b)(1) should be amended so that the sentence:

    "No application shall be approved unless the applicant is over 18 years of age and has lived in the acquired gender for at least two years ending with the date on which the application is made"

    Instead reads:

    "No application shall be approved unless the applicant is over 18 years of age."

  2. The proposal should be revised to remove the requirement for a name change order.

    The gendered connotations of names change over time and are highly culturally contingent. Some transgender people have gender neutral names that they may never change. A name change order is not relevant to the completion an individual's gender transition. In our experience, the vast majority of government agencies, as well as the courts in the context of name changes, recognize that a name change and gender change are separate processes and do not require a name change order to change a sex designation or proof of gender transition to change a name. The Sylvia Rivera Law Project has assisted a small but significant number of clients who were quite content with their given names and did not desire a name change, but who had completed their transition and, with the support of their healthcare providers, wished to change their gender designation on identity documents and records to reflect that fact. However, it is important, in the many cases where transgender people do change their names, that the new certificate reflect the new name and only that name.

    Specifically, § 207.05(b) should be amended so that the sentences:

    "Upon application, a new birth certificate shall be filed when (1) The name of the person has been changed pursuant to court order and proof satisfactory to the Department has been submitted that such person has completed the transition from one gender to the other and intends to permanently remain in such acquired gender. The acquired gender shall be entered on the new certificate."

    Instead read:

    "Upon application, a new birth certificate shall be filed when (1) Proof satisfactory to the Department has been submitted that such person has completed the transition from one gender to the other and intends to permanently remain in such acquired gender. The acquired gender shall be entered on the new certificate. When the name of the person has been changed pursuant to court order the new name shall also be entered on the new certificate."

  3. The proposal should be revised to remove the requirement that providers must have two years of experience related to transgender treatment in the last five years
  4. Some transgender people who were born in New York City now live in areas where providers with a significant amount of experience in treating transgender people over the last two years are simply unavailable. Specialized courses specifically concerning the treatment of transgender people are rare, even in locations like New York City. It is important that transgender people be able to seek treatment from local providers they know and trust, even if those providers are not necessarily among the most expert providers in the country. Such providers can still demonstrate considerable competence in treating transgender people and can still be qualified to make these assessments. For example, they can consult with experts, review the medical literature, and consult published training and educational resources and standards of care. Setting an arbitrary time limit here does not helpÑall the factors should be considered with the door open to the possibility of competent providers with less than two years experience in the last five years.

    Specifically, § 207.05(b)(1)(i)(A)(b) should be amended so that the sentence:

    "Information demonstrating at least two years experience in the last five years related to transgender treatment, including listing relevant specialized courses taken by the physician and information about the number of transgender patients the physician has treated"

    Instead reads:

    "Information demonstrating competence related to transgender treatment, including listing any relevant specialized courses taken by the physician and/or relevant educational resources the physician has consulted and information about the number of transgender patients the physician has treated."

    In addition, § 207.05(b)(1)(ii)(A)(b) should be amended so that the sentence:

    "Information demonstrating at least two years experience in the last five years related to transgender treatment, including listing relevant specialized courses taken by the mental health professional and information about the number of transgender patients the mental health professional has treated"

    Instead reads:

    "Information demonstrating competence related to transgender treatment, including listing any relevant specialized courses taken by the mental health professional and/or relevant educational resources the mental health professional has consulted and information about the number of transgender patients the mental health professional has treated."

  5. The proposal should be amended to include a presumption regarding applications meeting the enumerated requirements of Section 207.05

    Another portion of the proposed amendment as written would for the first time give the Department virtually unfettered discretion to request additional information of any kind from an applicant, or to deny an application that meets the requirements of § 207.05. This authority must be bounded, at least in a modest fashion, to ensure that the regulations comport with due process principles. Applications meeting the enumerated requirements of the proposed regulation, including the changes described above, will already include extensive, even invasive, information about a transgender applicant's medical and mental health history and status with respect to their gender and will constitute powerful, thorough evidence of complete gender transition and intent to live permanently in the new gender. The evidence required in the proposed amended regulation was selected and proposed by the Department of Health as the most effective and appropriate evidence to require for issuance of a new birth certificate after extensive consideration and consultation with experts. It is our hope that it is the intent of the Department to only request additional evidence in rare circumstances where some other information is required to clarify material information in the affidavits already submitted, not to make sweeping additional inquiries unrelated to the requirements established in the regulation. Accordingly, we recommend the addition of the language below, which limits the Department's discretion only to the extent of (a) creating a rebuttable presumption that an application containing the information set forth in § 207.05 is sufficient; and (b) requiring the Department to explain its grounds when it rejects, or requires additional information in support of, an application that contains the information set forth § 207.05.

    Section 207.05(c) should be amended so that the paragraph:

    When an application for a new birth certificate is filed pursuant to § 207.05(b)(1), the Department may request the applicant to provide other information or evidence demonstrating the applicant's transition to his or her acquired gender.

    Instead reads:

    An application containing all of the information described in § 207.05(b)(1) shall be presumed sufficient, and the Department shall not request additional information from the applicant unless the Department provides the applicant with written notification setting forth with particularity the additional information requested and the Department's reasons for requesting the additional information. An application containing all of the information described in § 207.05(b)(1) shall be granted unless the Department provides the applicant with written notification setting forth with particularity the Department's grounds for concluding that the application lacks satisfactory proof that the applicant has completed the transition to another gender and intends permanently to remain in such acquired gender.

Again, we greatly appreciate the opportunity to work with the Department of Health and Mental Hygiene throughout this process. We congratulate the Department and Board on their work. We strongly urge the Board to adopt the proposed amendments to §207.05 of the New York City Health Code with the following changed:1) removal of the requirement of a name change order; 2) removal of the requirement of living two years in the new gender; 3) removal of the requirement of two years of experience in transgender health in the last 5 years for providers submitting affidavits; and 4) addition of a presumption that the evidence required in §207.05 will be sufficient for issuance of the new birth certificate. Thank you and please do not hesitate to contact us if we can provide you with any additional information. I am also attaching letter from two people impacted by the policy that they asked us to share.

Very truly yours,

Z Gabriel Arkles
Staff Attorney