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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Friday, October 6, 2006

New York City eases ID rules

As noted in previous blogs, changing identification records for transgender employees presents tricky administrative challenges. One of the major questions has been how new Social Security Administration and Homeland Security rules, which restrict change of gender on SSA accounts (and require investigation of discrepancies with corporate records), will affect transgender employees. Unlike the old SSA rules, which recognized change of sex without proof of surgery, the new rules seem to require genital surgery (though they don't in fact specify what kind of surgery) to permit a change of gender on SSA records (though it is unclear, particularly with regard to how that would affect female-to-male transsexuals). But there are many other forms of identification besides SSA records, and many follow older guidelines that only require proof that the person is living in the opposite gender, regardless of their surgical status. What happens when different forms of identification show different genders?

The question is sharpened by New York City's recent proposal to change its rules to allow birth records to reflect change of gender. It would allow changes for people who have not had genital surgery, but could show substantial proof that they have undertaken other steps to irrevocably alter their gender-identity, such as hormone therapy. I applaud this move.

As an issue of governmental power, I believe that the right to privacy encompasses one who lives in the opposite gender role, regardless of their surgical status. A government requirement that one's identification, which nowadays must be produced to go into many buildings, as well as for all sorts of services, bear a gender marker that "outs" one to every officious clerk that asks for ID, is closely analogous to requiring a sign around one's neck declaring genital status. It doesn't require a constitutional scholar to know that the sign requirement is unconstitutional. (For those of you who wish to consider the privacy issues involved, I published an article on this issue in the Journal of Law & Sexuality in 2001, "The Gender Caste System: Identity, Privacy and Heteronormativity." Interestingly, it was rather prescient in relying on the supposedly-dead "right to privacy" well before the 2003 Lawrence case, which revived the principle.)

Having said that, what should HR departments do when presented with an SSA account that says "F," and a birth certificate that says "M"?

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