New York City Department of Health and Mental Hygiene

NYAGRA logo (small)

New York City Department of Health and Mental Hygiene
Board of Health
public hearing on proposed amendment to Article 207 of the New York City Health Code
testimony by
Pauline Park, Ph.D.
Chair, New York Association for Gender Rights Advocacy (NYAGRA)
30 October 2006

My name is Pauline Park and I chair the New York Association for Gender Rights Advocacy. NYAGRA is the first statewide transgender advocacy organization in New York and we are perhaps best known for having led the campaign for enactment of the New York City transgender rights law (Int. No. 24, enacted as Local Law 3 of 2002).

On behalf of the board of directors and the members of NYAGRA, I would like to commend you for your efforts to make Article 207 of the New York City Health Code more transgenderfriendly. I would also urge you to reconsider the proposed amendment under discussion here because in many ways the language of the proposed amendment represents one step forward and one step back for the transgender community here in New York.

While we in NYAGRA welcome the removal of sex reassignment surgery (SRS) as a requirement for a change of legal sex designation on one’s birth certificate, and while we commend the change to allow a full change of legal sex designation from either ‘M’ to ‘F’ or ‘F’ to ‘M,’ we also would like to express our deep concern with other aspects of the proposed amendment that we view as misguided and even harmful to transgendered New Yorkers seeking a change of legal sex designation on their birth certificates.

To begin with, I would like to voice NYAGRA’s support for all of the points made in Michael Silverman’s presentation on behalf of the Transgender Legal Defense & Education Fund (TLDEF) and the Transgender Health Initiative of New York (THINY), a joint project of TLDEF and NYAGRA. We in NYAGRA share TLDEF’s concern with the onerous and unnecessaryrequirements that applicants for a change of legal sex designation live in the gender with which they identify for two full years before obtaining the change in gender marker; in practice, it may be difficult if not impossible to produce a precise operational definition of ‘living full-time.’

We in NYAGRA also share TLDEF’s objection to the requirement that the applicant prove medical intervention; most transgendered people do not obtain sex reassignment surgery, because most do not want it, and most of those who do cannot afford it. Also, many transgendered people either do not want hormone replacement therapy (HRT); for medical reasons, HRT may be ‘contra-indicated’ for many others. One can live fully in one’s desired gender without either HRT or SRS, and many transgendered people do. We in NYAGRA also share TLDEF’s concern with the onerous burden represented by the requirement of an affadavit from a physician “practicing in the field of gender identity disorder or qualified through board certification” in one of a number of specialties; there is no such thing as board certification in transgender issues, and board certification in areas such as plastic surgery, family medicine, or internal medicine may or may not be directly relevant to the ability of a physician to effectively work with a transgendered patient. I shall return to the vexed issue of ‘gender identity disorder’ (GID) later in my testimony.

The requirement of a legal name change is particularly misguided, as many names are not clearly gendered. Why should someone with a name such as Dale or Dan, Gale or Jamie, Leslie or Lynn have to change his/her name as part of a change of legal sex designation? Also, female infants in contemporary American society are increasingly being given names that were traditionally considered men’s names, such as Ashley (any fan of “Gone With the Wind” will recognize it as the name of the two leading men in the novel and the film of that name) – which, according to the Social Security Administration ( is now the tenth most popular girl’s name – as well as Brooke, Daryl, Hunter, Meredith, Morgan, and Shannon, just to name a few.

We in NYAGRA also share TLDEF’s concern with the open-ended nature of the discretion given to the Department of Health (DOH) to require “other information or evidence demonstrating the applicants transition to his or her acquired gender.” Such a provision could potentially allow an official at the DOH to delay action on an application indefinitely and for no apparent reason.

One final recommendation: we urge the Department of Health to allow for the continued possibility of a change from ‘M’ or ‘F’ to no legal sex designation for those who were born intersexed. It is crucially important that the new policy allow for newborn intersexed individuals to be issued birth certificates with no sex designation, in view of the widespread practice of intersex genital mutilation (IGM) imposed on such individuals in infancy or childhood by misguided surgeons and panicked parents who fear social ostracism for children whose external (and/or internal) genitalia do not appear to be fully male or female (see or for more on intersex and IGM).

Our central concern with the proposed amendment to Article 207 is that it is rooted in a medical model of transsexuality that assumes that there is only one linear medical transition that all transsexual and transgendered people pursue. That medical model of transsexuality is a disease model based on the false diagnosis of ‘gender identity disorder’ (GID), which suggests that the mere fact of being transgendered – that is to say, the mere identification with the gender opposite one’s sex assigned at birth – constitutes prima facie evidence of a mental pathology. In fact, there is no empirical evidence whatsoever for the hypothesis that identification with the gender opposite one’s sex assigned at birth (in the absence of any other mental pathology) constitutes mental illness per se. In many if not most pre-modern non-Western societies (as well as in many pre-modern Western ones), there was a recognized ‘third sex/third gender’ subject position, an identity formation that accommodated those who identified with the gender opposite their birth sex. Only with the development of psychology and psychiatry in the late nineteenth century were terms and concepts such as ‘transvestism’ and transsexualism’ constructed by European sexologists such as Kraft-Ebbing as pathological. And only with the development of HRT and SRS in the twentieth century were technologies developed that could ‘re-sex’ the body both internally as well as externally.

In other words, the proposed amendment to Article 207 of the New York City Health Code – just like existing policy – is premised on the notion that transgender constitutes a mental illness. Because a change in legal sex designation on one’s birth certificate may be a crucial step in obtaining a change of legal sex designation (or ‘gender marker,’ as it is often called) on other important documents – such as a driver’s license, Social Security card, passport, etc. – the policy that DOH adopts will have implications for policy and procedures at the state and federal levels as well. And because a change of legal sex designation on all of these important identity documents represents a crucial step in the transitioning individual’s ability to obtain adequate education, employment, housing, credit, health care, and social services, the proposed DOH amendment will have a profound effect on the quality of life for transgendered New Yorkers. But the requirement for a diagnosis of gender identity disorder in effect represents a requirement that
a transgendered person have him/herself declared mentally ill in order to legally transition and obtain adequate education, employment, health care, etc. No such requirement exists for any other group in this city or this society.

It is important to recognize that the pathologizing of transgender and gender variance through the GID diagnosis is in fact controversial, just as the listing of homosexuality in the Diagnostic and Statistical Manual of Mental Disorders (DSM) was. As you may know, homosexuality was removed from the DSM in 1974 when the American Psychiatric Association (APA) published the fourth edition of the DSM. Unfortunately, DSM-IV introduced GID as a diagnosis, and that diagnosis has been used to pathologize gender variance in children and adolescents ever since then. There is an effort underway to remove GID from the DSM-V (currently under discussion) or at least to ‘reform’ the GID diagnosis (see It would be an irony indeed if the New York City Department of Health were to institutionalize the GID diagnosis in its policy regarding birth certificate change just at the very moment when the APA was debating removal or substantial revision of the GID diagnosis in the DSM.

It would also be ironic in light of the history of transgender law in New York City. In April 2002, the New York City Council passed Int. No. 24, the transgender rights bill signed into law by Mayor Michael Bloomberg later that month as Local Law 3 of 2002. That statute amended New York City human rights law by adding a definition of gender that included identity and expression (among other terms), thereby prohibiting discrimination in employment, housing, public accommodations, credit and education throughout the five boroughs. The guiding principle of that statute was one of self-determination in gender identity and expression, rooted in a conception of gender that recognizes transgender identities as no less ‘natural,’ no less ‘normal,’ and no less deserving of full equality under law as are conventional gender identities. In light of the enactment of that statute in 2002 and the adoption of guidelines for its implementation by the New York City Commission on Human Rights in 2004, adoption of the proposed new amendment to Article 207 of the New York City Health Code by the Department of Health would represent a setback to the positive and affirmative concept of transgender identities embodied in that statute and those guidelines.

We in NYAGRA therefore urge the Department of Health to revise the proposed amendment to make it consistent with the broad and holistic concept of gender identity embodied in Local Law 3 of 2002 and its implementation guidelines. Following from such a holistic and affirmative concept, a regulation amending Article 207 would require only affirmation by an applicant of his/her intention to live fully in the gender with which s/he identifies, along with either a letter from a physician documenting significant medical intervention or a letter from a psychologist, psychotherapist, or psychiatrist documenting his/her opinion verifying the self-declaration of gender identity. The treating mental health professional should be licensed, but there should be no specific requirement that s/he be recognized as having expertise in gender identity issues. The medical intervention mentioned above should allow either HRT, SRS, breast augmentation or breast removal as a sufficient condition for approval of the application for
a change of legal sex designation on the applicant’s birth certificate.

Officials at the Department of Health should understand that the decision to live in the gender different from the sex assigned to one at birth is not a decision entered into lightly but indicates a profound identification with that gender, but that there is no one way in which a transgendered individual actualizes that gender identity; instead, there is a great diversity of paths that transgendered people choose to realize their gender identities, and public policy must reflect and accommodate that reality.

The Department now has an opportunity to help further the advances represented by Local Law 3 of 2002 and the guidelines for its implementation. We in NYAGRA urge the Department of Health to substantially revise the proposed amendment to Article 207 along the lines recommended in my testimony, and we stand ready to work with Department officials in drafting language for that amendment in a manner consistent with the broad concept of gender identity and expression and the progressive ethos informing existing transgender law and regulations in New York City.

Thank you.

Leave a Reply

Your email address will not be published. Required fields are marked *