Revisions Likely in Birth Certificate Policy

BY PAUL SCHINDLER | Spurred by a 2002 city law forbidding discrimination based on gender identity and expression and reform sought by gender rights advocates, the city's Department of Health and Mental Hygiene is considering an amendment to the policy governing changes to a birth certificate, making it possible for transgendered people born in New York to alter the gender designated on the form.

However, in testimony before the Board of Health on Monday, advocates agreed in recommending a number of significant changes to the amendment currently under discussion, and some maintained that the overall approach contemplated is inappropriately based on what they termed a “medical model” inconsistent with an emerging ethos of gender self-identification.

Everyone who testified at the Monday hearing, however, agreed that revision in the current city policy is long overdue and congratulated the health department on its work in moving toward reform.

Spurred by a 2002 city law forbidding discrimination based on gender identity and expression and reform sought by gender rights advocates, the city's Department of Health and Mental Hygiene is considering an amendment to the policy governing changes to a birth certificate.

Current city regulations hobble transgendered New Yorkers wishing to change their birth certificates in two significant ways. First, as the result of a state court ruling from some years ago finding that the sex of an individual cannot be changed, the current policy only allows that a person remove the gender designation from their birth certificate. A change from male to female or female to male is not allowed.

Second, according to Pauline Park, chair of the New York Association for Gender Rights Advocacy (NYAGRA), the existing policy presumptively looks to gender reassignment surgery as the precondition for approving a change in a birth certificate.

The birth certificate issue is important because many other official documents, including a driver's license and a passport, can only be obtained or produced in accordance with an individual's gender presentation if the birth certificate accurately reflects that. Those other documents have always been important, but have become even more critical in the wake of 9/11 since identification is more commonly demanded-routinely, for example, when entering Manhattan office buildings, ironically including the health department's Worth Street headquarters-and officials are often suspicious if anything about the identification presented is off-kilter in their view.

The new policy would allow those who were born in New York to change the gender designation on their birth certificate, but according to advocates, including NYAGRA, the Transgender Legal Defense & Education Fund (TLDEF), the Sylvia Rivera Law Project, and Lambda Legal, problems remain.

These groups largely agreed on a list of four recommended changes.

The requirement that the individual has already legally changed their name is opposed since many names have no clear gender identification and, in any event, a person transitioning may choose to keep their birth name.

“The decision to change one's name is a highly individual and multi-faceted one that should not be tied unnecessarily to the decision to change one's gender,” Bonnie Scott Jones, a staff attorney at Lambda, said in written testimony provided to the Board.

The requirement that a person live in their acquired gender for two years before applying for a birth certificate change is also opposed. According to Jones, the waiting period impedes the ability of a transitioning person to obtain other changes in identification needed to pursue their everyday life, overlooks the fact that gender transition is a “highly individualized” process that can take less than two years, and seeks to create a barrier to prevent changes an individual has not thoroughly considered, when the health care provider certifications otherwise required by the amendment more directly address that issue.

Advocates also oppose a provision that requires that physicians and mental health care providers attesting to an individual's gender change have two years experience in transgender treatment. Such specific qualifications are rare, and could pose an unnecessary burden, particularly for people, born in New York, who now live elsewhere in the country, where such expertise is even less common. The advocates suggest instead that a flexible test of the competence of medical professionals be established.

Finally, the advocates agree that if an applicant meets the requirements of the law, their application should presumptively be valid. They fear that under the current proposal, the health department continues to have discretion to arbitrarily deny an application.

NYAGRA and TLDEF voiced additional, more fundamental concerns about the health department proposal.

According to NYAGRA's Park, the amendment relies on a medicalized view of gender variance which assumes that it is a pathology and is at odds with the gender self-definition and expression assumptions of the 2002 city transgender rights law. Both she and TLDEF's executive director, Michael Silverman, object to what they see as the amendment's clear implication that a doctor must attest to either surgical intervention or hormone treatment, when in fact many transgendered people transition without the aid of either. The two suggest that rather than requiring that both a physician and a mental health professional offer certification, only one be required to do so and they merely attest that the individual fully intends to live in their acquired gender.

Silverman went the furthest in this regard, qualifying his recommendation with the caveat “to the extent that any modified policy continues to focus on the views of medical and mental health professionals as arbiters of an individual's gender transition.”

Silverman suggested that the 18-year-old age minimum be struck to allow for emancipated minors and those with guardian approval to change their gender designation. In order to address the needs of intersex individuals who identify with neither gender, Park recommended that applicants continue to have the choice of simply having the gender designation on their birth certificate removed, rather than changed.

The health department will now consider these public comments and potentially make revisions to the amendment. Further public comment could be invited, though the Board of Health could also move to approve the changes at their next meeting in early December. NYAGRA and TLDEF, however, argued that rather than merely altering language, the health department should instead convene a working group to discuss the overall assumptions in the policy revision proposal.

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