Talking Points in Support of Proposed NYC Transgender Birth Certificate Regulations (Fall 06)

Why should New York City's current birth certificate gender change policy be changed?

1) NYC needs a new birth certificate gender change policy because the current policy, requiring every person to prove they've had "convertive surgery," (interpreted to mean phalloplasty or vaginoplasty), is based on myths and misunderstandings about trans health care. Trans healthcare is individualized: current best practices recognize that a "one size fits all" approach is not in the best interests of transgender people. Instead, people get the treatments that make sense for their health needs. Recent data has shown that only 3 % of transgender men have genital surgery. So a policy that requires genital surgery to get a correct birth certificate excludes many people from getting this basic documentation that they need to live and work.

2) The current policy is now 35 years old, and harms transgender people born in the City. Without a birth certificate accurately reflecting their current gender, trans people face serious obstacles in accessing employment, housing, services, and other identity documents. Having documentation that doesn't match current gender can often trigger bias, harassment, discrimination, or groundless accusations of fraud. Incorrect gender on trans people's ID also make it more difficult for government or other agencies to identify transgender people effectively.

3) Every other U.S. birth certificate jurisdiction, except the three (ID, TN, OH) that do not allow any changes of birth certificates to reflect the transition of transgender people, issues a birth certificate showing the gender. New York is the only jurisdiction that omits the gender. This practice is stigmatizing, unnecessary, and does not assist the individual or society with correct identification of transgender people. The proposed regulation would address this problem and bring NYC in line with other birth certificate jurisdictions on this issue.

Three Elements of the DOH Proposal Should Be Corrected:

1) Requiring providers to have two years experience treating transgender people will unfairly harm people who have limited choices in their healthcare because of insurance limits or limited resources where they live. The proposed regulation would require that both the physician and mental health professional have at least two years of experience in transgender healthcare. This requirement will be unrealistic for some transgender people, especially those who were born in New York but who live and receive healthcare elsewhere. Specialized classes on issues of transgender healthcare are rare and simply not available in most places. Also, in many parts of the country, there are very few transgender people within a geographic area, such that it is unlikely that a provider could build a practice of any significant number of transgender patients. These professionals can still be qualified to treat and evaluate transgender people by reviewing the literature, consulting with experts from outside the area, and working closely with the patient him- or herself. The two year experience requirement should be taken out of the proposed regulation.

2) The requirement that the applicant live in their new gender for two years is not in line with current medical standards, creates a Catch-22 for many trans people, and should be removed. The proposed regulation would require that the applicant live as their gender for two years. This requirement imposes an additional, unnecessary obstacle that is not in keeping with the current medical standards. It is not uncommon for some transgender people to fully transition, including genital surgery when it is indicated, in much less than two years. Like other aspects of treatment, how long a person needs to live in their gender in order to completely transition and indicate an intent to live permanently in that gender should be left to their qualified medical and mental health providers. Additionally, many people cannot fully transition at their workplace or in other key institutions (supportive residential living programs, for example) until they can get corrected documentation required by the institution to recognize their new gender. People in these situations cannot fully live fully 24 hour/day in their gender until they get correct documentation, and therefore could not ever meet this requirement. The proposed regulation should be amended to eliminate this requirement.

3) The name change order requirement for changing gender on the birth certificate is unfair and unnecessary. The proposed regulation would require a name change order to change the sex on a birth certificate. A name change order should only be required when the individual also wishes to change the name on their birth certificate. Some transgender people who have names without strong gender connotations never need to change their name as a part of their transition. An individual's name has no relevance to the correct determination of their gender. The proposed regulation should be amended to eliminate that requirement.