A story last week from the Rochester (NY) Democrat and Chronicle illustrates a problem with corporate record-keeping referred to in previous blogs. "A transgender Rochester man must provide medical evidence to justify his request to change his first name from Sarah to Evan, a local judge has ruled. "
While it is unclear exactly what State Supreme Court Justice William P. Polito means by this, since I don't have the full opinion, it seems reasonable, in the context of the story, to assume that it imposes a legal requirement that a transgender person first undergo sex reassignment surgery before being allowed to change their name to one stereotypically associated with that of the opposite sex. This wasn't such a big deal in the past, because the common law permitted one to use any name without judicial approval, and to place that name on any identifying document, so long as there was no intent to defraud creditors. Today, however, many institutions, such as the Social Security Administration, banks and libraries, increasingly assume the need for judicial approval before one's name can be changed on identifying documents. The advent of Real ID Act regulations, planned for this fall, will further solidify judicial control of identity.
As noted in my previous blog on corporate record-keeping, this creates a catch-22. Medical standards require that one must live in the opposite gender role for at least one year before medical permission is grantedto have sex reassignment surgery. This obviously requires that one choose a name associated with the opposite gender role. However, if Judge Polito gets his way, the use of such a name would not be permitted unless and until there is evidence of sex reassignment surgery. Thus, the government is requiring this man Evan to carry and show identification saying "Sarah," and to represent himself as a female, perhaps at the risk of a fraud charge (related story). As I discussed at length in a law review article in 2001, there are serious privacy implications to Polito's position on this, and it would not surprise me if Evan's lawyers raised a constitutional challenge.
It might be possible to harmonize these two opposing rules by requiring all transgender persons to go by the name of "Pat," but I think the better solution is to recognize that Judge Polito has made a mistake. In addition, it is important to note that there are a number of different types of sex reassignment surgery, so a simple requirement of sex reassignment surgery is not clear. Nor is a requirement of "full" reassignment surgery, as that simply switches the ambiguity to the question of what constitutes "full." The state of the art for sex reassignment surgery for those moving from female to male lags sadly behind, and most of those moving from female to male forego the hideously expensive (like $30,000-$50,000) phalloplasty, which is widely considered to produce results that do not provide adequate sensation or function. Many consider mastectomy and metoidioplasty "full" sex reassignment for FTMs. And if you're left wondering what those are, and want a fuller explanation before you agree or disagree, well, perhaps now you see why judges ought to get educated before they start spewing rules.
It is important for corporate record-keepers to recognize that it may be difficult for transgender employees to receive a court-ordered name change, thus making it impossible to obtain a social security card in the new name. To make life easier for transgender employees in this situation, corporate rules requiring a new social security card or a court order before changing names on corporate records should be relaxed, allowing the substitution of other documentation.
