There has recently been much public debate on the issue of NYC's proposed regulations regarding change of sex on birth certificates. This is an issue that has been addressed by state legislatures for a long time. (HRC has lots of information about changing sex on birth certificates on its website.) NYC has long permitted changing the birth certificate of those who get sex reassignment surgery. Interestingly, the old rule simply blanks out the sex, and no sex is listed. The twist here is that NYC will now recognize put the opposite sex marker on the certificate, and permit this to be done for transgender people who have not yet had genital surgery, but could show substantial proof that they have undertaken other steps to irrevocably alter their gender-identity, such as hormone therapy. This is in recognition of the catch-22 faced by transgender people who obtain sex reassignment surgery: they can't get the surgery until they live for at least a year in the opposite gender role, but the government insists on outing them whenever they have to show government ID, including a birth certificate. I think the whole issue is a tempest in a teapot, but I submit it here for your consideration.
(I've previously blogged about this issue, contrasting the NYC proposal with the opposite direction taken by the Social Security Administration, which until recently had rules recognizing change of sex without requiring proof of surgery, as well as commenting on the privacy issues.)
The issue for corporate HR, of course, is what to do when government-issued IDs don't match. Many government-issued IDs don't require sex reassignment surgery, and the proposed NYC regs are a step forward in creating IDs that match.
Misconception: A changed birth certificate changes your sex
Before we get to the public debate, however, I think it important to clear up one misconception. The recognition of sex change on a birth certificate does not mean that the person is regarded as the new sex for all purposes. So far, courts have interpreted statutes and regulations recognizing change of sex on birth certificates very narrowly, finding that they do not require recognition of the new sex for purposes such as marriage, inheritance, employment, military service, and incarceration.
A recent example where the courts were squarely faced with this issue and the case received full appellate process, up to and including the U.S. Supreme Court (which denied certiorari), is the case of In Re Gardiner, 42 P.3d 120 (Kan. 2002). J’Noel Ball was assigned to the male sex at birth. She was diagnosed by mental health professionals with gender identity disorder, lived successfully for a period as the opposite sex, was administered cross-sex hormones and sex reassignment surgery and changed her birth certificate as authorized by state law to reflect her female status. On the authority of this, she married her husband, Marshall Gardiner. When Mr. Gardiner died without a will, Mrs. Gardiner was entitled, as his spouse, to half of his $3 million estate under Kansas law. However, Marshall’s estranged son, Joe Gardiner, contested this in the courts of Kansas on the grounds that J’Noel was, in fact, a male, who was not legally entitled to marry his father, and was therefore not entitled to the usual spousal share of the estate.
Mrs. Gardiner argued that the U.S. Constitution required the Kansas courts had to respect her Wisconsin birth certificate, which had been amended pursuant to Wisconsin statutes to state that she was female. She pointed to the section of the Contitution that says "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." J'Noel argued that this required the Kansas courts to credit the public record of the Wisconsin birth certificate that declared her female. Joe, the estranged son, argued that the Kansas courts could ignore the Wisconsin birth certificate.
Three different Kansas courts came up with three different rulings. The trial court ignored the Wisconsin birth certificate, ruling that medical and surgical intervention does not change sex, awarding the entire estate to the son. The case was appealed to the Kansas Court of Appeals, which also ignored the Wisconsin birth certificate, but ruled that sex can be changed with certain medical, surgical and legal procedures. Therefore, it was possible that J’Noel Gardiner was female at the time of her marriage. It sent the case back to the trial court to investigate whether the correct procedures were followed. Before that occurred, however, the son appealed to the highest court of Kansas, the Supreme Court of Kansas, which ignored the Wisconsin birth certificate for purposes of marriage, but ruled that it would have been valid for some purposes. However, the court ruled that it is impossible to change sex for purposes of marriage.
The Kansas Supreme Court noted that some courts had ruled that sex had been changed for purposes of marriage, based on “crediting a mental component, as well as an anatomical component, to each person's sexual identity.” However, it declined to go so far, holding that a woman is defined by her internal sexual organs, ova, chromosomes and capacity to bear children, not by her mind.
The Kansas Supreme Court is not alone in this view. Appellate courts in Texas and Florida have written similar opinions (Littleton v. Prange 1999, Kantaras v. Kantaras 2004).
Second Misconception: Sex reassignment surgery "makes" you into the opposite sex
A major problem here is that most people have misunderstood academic gender theory. They think that it means that sex means genitalia, and gender means psychology. This is a gross oversimplification that shows proof of the saying that a little knowledge is a dangerous thing. If you look at the etymology of the word "sex," it refers to a division -- a division of the human species into two groups with certain physical, psychological, behavioral and social characteristics. While many separate out gender role from sex, that only means that women can do the same intellectual and physical work as a male of similar education and physique. It doesn't mean that I need to have surgery in order to be transgender. If we make sex equals genitalia, then we have changed the meaning of the word to the functional opposite of what it meant at the beginning of the twentieth century. It will have moved from a reference to membership in a group with certain physical, psychological, behavioral and social characteristics to mean, instead, those physical characteristics alone. But this is not what "sex" means. "Sex" is not equal to genitalia. Removing my genitals does not make me into the opposite sex. Those who are experts in the field understand that "sex" involves many factors, including not only biological factors such as chromosomes and gonads, but also gender attribution, gender identity and gender expression. I could give you sixteen quotes to illustrate what I mean, but I've got an article coming out on the issue, so I won't belabor it here.
In addition, the state of the art in sex reassignment surgery is way lower than most people suppose. While surgeons have figured out how to replicate more or less the functionality necessary for a female, they have not figured out how to do the same for male functionality. This means that most female-to-male transsexuals do not have phalloplasty. So the surgery rule, in theory, means that you can change from male to female, but not from female to male. This would seem to work a hardship for FTMs, except that the way this works in practical reality is that most government authorities will accept an affidavit showing a hysterectomy. So, in fact, it turns out that it's much harder for MTFs. That makes sense, since society is much more frightened by MTFs. But it also demonstrates that this is not, in fact, an argument that changing sex requires obtaining the genitalia to match.
Opposing Viewpoints: The Daily News weighs in
The Gotham Gazette blog posted a nice summary of the Daily News debate on the proposed regs. The Yes essay is by Michael Silverman of the Transgender Legal Defense and Education Fund, who argues that such a move will help make life a little easier: “When they apply for jobs, they will no longer need to fear rejection because their ID doesn’t match the way they look; it now will. When they enter office buildings, they will no longer have to explain to security guards why the gender on their ID doesn’t match their appearance; it now will. When police officers stop them from using the bathroom that matches their gender presentation, they’ll have identification that says they have the right to be there.”
My take on this argument is that I agree because it's a governmental invasion of my constitutional right to privacy. The argument loses some persuasive force, however, because birth certificates have dual roles as documents of historical fact and as present-day ID. And their role as identity docs are practically obsolete. Everyone today uses their driver's licenses. Indeed, although the state of NJ, where I was born, would permit me to change my birth certificate, I haven't bothered to do it. How would it benefit me? I have little enough time as it is -- the last thing I need is another thing on my plate. One can simply go to the NY DMV, as I did in 1997, and present a letter from one's therapist saying that one is presenting more as female than as male (or vice versa), and get a license with a new gender marker. Since 1987 there has been no surgical requirement under NY DMV regs (procedure 4335). So who needs a birth certificate?
The linkage that saves this argument, however, and makes it ultimately persuasive, is the fact that under the Real ID Act, a federal law now in force, one is going to have to conform to federal regs in order to get a new driver's license, and my guess is that there will shortly be no way to get a driver's license in a new gender without conforming to federal regs and that probably means a birth certificate to match.
The No essay is by James Kirchick, who writes for the Independent Gay Forum. It's quite surprising to see a gay man arguing against transgender rights these days. He argues that transgender rights interfere with gay rights. He says the proposal amounts to “falsifying government documents” and “eliminating a physical standard for determining gender.” The problem with Kirchick's argument, besides his me-first-and-only attitude, is that he assumes that "sex" means genitalia. As noted above, this assumption is wrong. Kerchick also raises scenarios, such as gay marriage, that have nothing to do with a birth certificate or its use as identification. (“What if a man who, despite never having had his gender surgically changed, asserts he is a woman then wants to marry another man, despite gay marriage not being legal in New York State?”).
Not Realistic?: The Daily Trojan weighs in
A student at USC, Stephan Kwok, recently argued that the proposed law is not realistic. His arguments epitomize the traps awaiting those who have never thought through these issues. He falls into a trap similar to Kerchik's, asserting contradictorily that "without a sex reassignment surgery (and even with), their biological sex remains the same as it was at birth. Gender is a fluid social construct and can, thus, be changed, but sex - a biological statistic - cannot be." If it's a wholly biological statistic, why can't sex reassignment surgery change one's sex? The answer is that to Kwok, along with many others who haven't thought about it a whole lot, "sex" is a mysterious essence with no moving parts, and it can never be changed. But that's not right, because people do change their sex. I've seen it, and I've done it. This is not an academic exercise. I have a right to live as a female if I like - that's called life, liberty and the pursuit of happiness, and it's guaranteed to be protected from government invasion by the U.S. and state constitutions. From my point of view, Kwok's idea is the one that's not realistic. He's arguing that state-sponsored "outing" is needed. For what?
Mr. Kwok says "in medical emergency, a patient's treatment will depend on whether he or she is a man, woman, or a transgender - not as whatever is chosen." Wait a minute - in an emergency, are they going to call for my birth certificate? And what emergency medical procedures are specific to women? None, in fact. He raises more issues that have nothing to do with birth certificates or identification, raising questions about sports leagues and marriage. But these are questions that are not going to be decided by a birth certificate, regardless of what letter is put there. He says the proposed regs wouldn't promote acceptance of transgender individuals because "transgendering is an exercise in blurring the line between sexes." Many people think this way, but it demonstrates ignorance of the reality of transgender lives. In fact, transgendering is not about blurring the line. For the transgender people affected by the proposed regs, it's very definitely about keeping the line clear and avoiding having people goggle at you before they fire you or kick you out of the apartment building when your birth certificate outs you.
The Even More Radical Left
Just when you were thinking that I was to the left of the left, I am rescued by the article from
GayCityNews - "Birth Certificate Policy Must Reflect Reality of Trans Lives." In this column, my friend Pauline Park writes, along with Michael Silverman, that the proposed requirements for obtaining an amended birth certificate are so onerous and burdensome that most transgendered people will not qualify. The new policy requires a transgendered person to provide an affidavit from a doctor and a mental health professional, attesting to medical treatments of hormones and psychotherapy. Park and Silverman note that these expensive treatments are unavailable to poor transgender people of color, that they are medically contraindicated for some, and that most transgender people live in the opposite gender role without such treatments. They make the point that "throughout history-and before the development of hormone therapy and sex reassignment surgery-there have been people we would call transgendered who lived in the gender opposite their birth sex." They note that expensive psychotherapy is unnecessary to the coming out process. They request a more inclusive process that does not require affidavits from doctors. (They ought to note, but don't, that many transgender people purchase black market hormones because hormones are ridiculously expensive and the doctors can't write an affidavit about black market hormones.)
Kudos to Pauline and Michael on raising some good points. More education of society is needed to reach this step, however, particularly on the "sex equals genitalia" point. Also, it will take some time for our fear-soaked society to realize that there isn't going to be a flood of people trying to "game the system." The regs might be going a bit overboard with the affidavits, but it's a step forward.
