Alaska sued in transgender driver's license case - Sacramento News - Local and Breaking Sacramento News | Sacramento Bee

Alaska sued in transgender driver's license case - Sacramento News - Local and Breaking Sacramento News | Sacramento Bee: "The American Civil Liberties Union is suing the state of Alaska on behalf of a transgender woman, alleging that it denied her a driver's license listing her gender as female unless she provided proof that she'd undergone a sex change operation.

The lawsuit, which ACLU said was filed in state court in Anchorage Monday, states that denying the woman a license that accurately reflects her gender identity because she hasn't undergone surgery is unconstitutional."

Denied Gender Change at DMV: Government Workers Need More Education | SouthFloridaGayNews.com

Changing government ID can be very difficult, even when the law is in your favor, and government officials often feel free to give vent to prejudice.

Denied Gender Change at DMV: Government Workers Need More Education | SouthFloridaGayNews.com: "I returned to the Florida DMV to have my gender marker changed and after standing in line for 3 hours to my amazement I was denied. I was informed that only a supervisor could change the gender marker on my license and it seemed the supervisor was not at work that day.

I was flabbergasted because I had followed all of the instructions word for word yet I was turned away and refused."

She never did succeed in having her ID changed.

DMV Employee Accused Of Harassing Transgender Woman Resigns: News: SFAppeal

I've posted several items recently about developments in a case involving a DMV employee who sent a letter to a trans customer, stating that the customer would "go to hell." Given that opponents of trans identity often have religious objections, I always discuss the question in my trainings of where the line is between religious freedom and harassment. Here's the latest on the story, and it provides an interesting vignette for addressing that question.

DMV Employee Accused Of Harassing Transgender Woman Resigns: News: SFAppeal

DMV clerk suspended for sex-change admonition

DMV clerk suspended for sex-change admonition: "The Department of Motor Vehicles employee who handled a transgender woman's application to register her sex change was suspended shortly after the woman reported that he had sent her a letter condemning her to hell, the state agency said Friday."

SSA Gender No-Match Letters

Safe Harbor for Employers

Judge to rule on no-match: http://www.shrm.org/government/update/100507_3.asp

Update on Transgender Employment Issues

So many interesting things have happened in the last month on transgender employment issues, I'm going to make a list. The most important news is about the signing of legislation in Iowa, Vermont, Colorado and Oregon. But not all is rosy...

- The Governor of Iowa signed the bill including gender identity into the state's antidiscrimination law, as did the Governor of Vermont, the Governor of Colorado, and the Governor of Oregon.

The Governor of Ohio by executive order restored a ban on discrimination against state employees based on gender identity and sexual orientation, which had been removed by his predecessor in 1999 However, the Governor also noted his opinion that any Ohio legislation purporting to outlaw discrimination based on sexual orientation or gender identity would be rendered unconstitutional by the state's constitutional ban on same-sex marriage It is difficult to understand the connection, and I note that federal court opinions already cover all transgender employees in Ohio.

A transgender employee won a lawsuit against an insurer, Highmark Blue Shield, that refused to cover the costs of her sex reassignment surgery This comes on the heels of reports that more employers are covering the costs of such surgery

However, not all is rosy for transgender employment rights:

The Connecticut legislature failed to pass legislation adding gender identity to the state's non-discrimination law (I note that all transgender employees in Connecticut are covered by a state administrative ruling.)

The transgender experience in the job market: The American Lawyer publishes a letter, by one of the few transgender lawyers in a large law firm, discussing its article on strides made by gay lawyers in overcoming employment discrimination in large law firms, and noting that transgender lawyers have not been included in the largesse

ENDA: An editorial published in the Washington Blade, an important gay newspaper, suggests that the inclusion of transgender people in anti-discrimination legislation threatens gay people

Identification records: At a "Town Meeting" held on the newly released regulations under the Real ID Act, two witnesses testify about the negative effects on the transgender community, with one noting that "you don't know what it's like to get carted off the security line by a couple of burly cops" (comments at 41:00 and 1:15)

ENDA: The Concerned Women of America suggest that the federal legislation to ban employment discrimination based on gender identity and sexual orientation, the Employment Non-Discrimination Act, would be an unconstitutional infringement of employers under the First Amendment rights to freedom of speech and freedom of religion

Corporate Diversity: Micron Corp., after a shareholder resolution requiring protection of employees based on gender identity and sexual orientation, adds sexual orientation but refuses to add gender identity

And here are some other notable transgender tidbits:

The National Center for Transgender Equality and the Human Rights Campaign release a groundbreaking guide for transgender people about coming out as transgender

Identification records: Transgender passengers are having more and more passport problems because of federal rules written by people who don't understand transgender identities

A transgender police officer on the Kansas City police force came out, and things are going well for her so far

The San Francisco police commission elected a transgender woman as its president

Schools K-12: A Texas transgender high school student, suspended from school for dress code violations, is reinstated after intervention by a pro bono lawyer

Transgender experience in the job market: The Transgender Economic Empowerment Initiative, aimed at reducing chronic unemployment and underemployment in the transgender community, established in San Francisco, and a similar program in Los Angeles, the Transgender Job Placement Program

Trans culture: Executives at Frameline, San Francisco's LGBT film festival, made the unprecedented decision to yank a film, The Gendercator, from this year's schedule due to community outrage over its satirical portrayals of transsexuals in a mythical future

A transgender woman, Jenny Bailey, has been chosen mayor of Cambridge, England, as it celebrates its 800th anniversary

NYC rejects birth certificate change regs

The New York City Board of Health voted unanimously today to turn down the proposed regulations permitting transgender people to change their birth certificates prior to sex reassignment surgery. I blogged on this issue two weeks ago, reviewing the issue in detail.

The reason given by the health commissioner is that officials need to look more carefully at the issue, particularly to insure that it would not conflict with federal identity document rules being developed. But the Board of Health's own staff and an eight-member panel of transgender experts and vital records offices across the country reviewed this issue in depth for four years and made a strong recommendation in favor of the proposed regs. This would seem to constitute "in depth." And those federal identity rules are the only going to affect drivers' licenses, so the proposed Board regs couldn't conflict with it. (Here's the Real ID Act - check out Title II.)

One friend of mine who was involved with this effort was initially very optimistic, as the Board members seemed very positive, but then turned increasingly pessimistic as the media coverage mounted. It was his guess that the Board was going to fold under pressure. He was right.

The Reuters article also provides the following quote "For example, how can you send a person with a penis to a women's prison?" said one health department official who requested anonymity because he was not authorized to speak for the department. This statement betrays ignorance of the issues, because a change in birth certificate would not send require sending people with penises to women's prisons. As noted in my last blog on this issue, the recognition of a change of gender on a birth certificate does not mean that the change must be recognized for all purposes. At the same, I also note that placement of transgender persons by gender identity rather than physical anatomy in correctional institutions has been successfully instituted in facilities around the county. In addition, sex-segregated situations like homeless shelters has been accomplished successfully for years around North America, now including Boston, Toronto, San Francisco and, yes, New York. Based on this, the unnamed official's naive response suggests that the official has not done his homework.

While the Board voted down the proposal to allow a change of birth certificate before surgery, they did vote to provide new certificate with a changed gender, rather than the blanked out gender previously provided.

NYC Birth Certificate Changes

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.

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"?

Forced Out: A Real ID problem for trans people

When I last blogged on the popular issue of company records, we were discussing the new Homeland Security regs. The Advocate's Joanne Herman has just put out a column on the issue: "Forced out: A real ID problem for trans people." The blurb: "Changing one's name and gender marker privately can be tricky if you're transgender, and a new law designed to thwart terrorists is about to make it a lot trickier. Part 10 in The Advocate's ongoing Transgender 101 series " It's particularly interesting because it tells her story about what happened when she was transitioning on the job, and it neatly summarizes the catch-22 quality of the issue.

Proposed Homeland Security Rule Comment

I previously blogged about a proposed Homeland Security Rule that could impact corporate record-keeping when an employee transitions in the workplace. The National Center for Transgender Equality (NCTE) has weighed in on the subject, submitting official comments on the proposed rule, and suggesting changes before the regulation is adopted.

NCTE notes that it

"receives calls regularly from transgender people across the country who have been outed to their employers by the Social Security Administration's (SSA) unfair gender 'no-match' employment letter policy. We continue to work with individuals to mitigate the impact these letters are having on people's medical privacy and employment security."

NCTE has raised four specific concerns:

1. Gender no-match letters are an invasion of private medical information
2. The strict 60-day time limit is unfair
3. Transgender people do not have access to the required identification
4. The anti-discrimination aspects of the proposed procedure need to be strengthened

The actual comments, which can be viewed on the NCTE website, discuss proposed solutions to these four problems.

When an employee transitions on the job, the proposed regulations create concerns for employers particularly when interacting with anti-discrimination law in the jurisdiction. Employers must decide whether or not to acknowledge an employee's gender transition by changing the gender marker on corporate records, which may trigger no-match rules and consequent penalties.

Transgender name changes and corporate records

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.

Issue: Employer Records of Gender Identity

When an employee transitions on the job, what should the organization do about its records showing a different gender?

The Human Rights Campaign's Trangender Issues Manual suggests the following: "Upon an employee's request, change the employee's name and sex in all personnel and administrative records, including internal and external e-mail and business cards. While this stance is admirably accommodating, it may not be possible to change "all personnel and administrative records." If the employee has been with the organization for a long time, there are years of previous records, which would be burdensome to change. A less onerous suggestion is to change the company database to reflect the new name and gender prospectively for the future only. This could, however, result in a discrepancy in the future, causing inquiry and some distress to a transgender employee. Some thought should be given by the organization to which records in its particular system are most likely to pop up later on.

Changing of name is a fairly routine matter because organizations are used to changing names when women get married or divorced. I note, however, that organizations usually request a court order for the purposes of changing a name. This causes problems for those US states that will not easily give a court order to change a name from one which is stereotypically male to one that is stereotypically female, or vice versa. The workaround for this is the general recognition in the law that a court order is not required in order to use a different name. Rather, the court order simply acknowledges an individual's use of a different name. With concerns about security on the rise, however, many organizations are ignoring this common-law rule in favor of requiring a court order. Even more problematic, however, is the fact that only one US state (Texas, interestingly enough) will give a court order recognizing a change of sex, albeit for limited purposes.

A change of gender is much more problematic administratively than a change of name. The gender change on the company's database will cause a discrepancy when it does not match the database gender marker on other systems. For example, unless and until the employee changes the gender identity marker on the Social Security account, insurance plans, pension plans, security classification, professional licenses, etc., the discrepancies may trigger an inquiry. In addition, there is no universal document that will satisfy all organizations to change the gender marker.

For example, Social Security Administration rules recently changed to require sex reassignment surgery for change of gender marker on the SSA account. This is a problem for some transgender employees, because the medical standards of care call for living in the opposite gender for at least a year prior to receiving permission for sex reassignment surgery. There are stories out there about SSA contacting employers about the gender mismatch, causing some distress for transgender employees. However, when I queried SSA about this, I received the following reply:

"SSA may inform employers of discrepancies through a No-Match letter, Basic Pilot (Employment Eligibility Verification) or Social Security Number Verification Service (SSNVS)....SSA only matches the name and SSN reported against its records (not gender). The Basic Pilot assists participating employers in confirming employment eligibility of newly-hired employees. Employers participating in the Basic Pilot electronically match the newly hired employee's data against SSA and Department of Homeland Security electronic records such as SSN, name, date of birth, and citizenship/work authorized status. Basic Pilot does not match the gender."

I'm not sure who to believe at this point.

One legal department raised the concern that changing the gender marker before SSA approval could cause a loss or interruption of benefit accrual to the individual's social security account. I've queried SSA about this, too, but it looks like it will be some time before they can answer the question. I spoke to Christopher Daley, an attorney and director of the Transgender Law Center (TLC), which provides legal services to hundreds of transgender people and their families each year. TLC has worked with many transgender people whose birth-identified gender marker on their SSA account conflicts with the corrected gender marker on their employers' records. To his knowledge, this particular inconsistency has never resulted in loss of benefits for any of the Center's clients.