Birth Certificate Policy Must Reflect Reality of Trans Lives
By Pauline Park and Michael Silverman
Gay City News
16 November 2006

Most people don’t think about their birth certificates. But for transgendered people, changing the sex designation on their birth certificates from M to F or F to M can be a crucial step in getting a job, traveling, and even accessing public restrooms. When a transgendered person’s gender presentation differs from the legal sex designation (the gender marker of M or F) on his or her personal ID, that can result in job discrimination or the denial of social services or even access to public accommodations such as restrooms and government and corporate office buildings.

On October 30, the New York City Department of Health and Mental Hygiene held a public hearing on a proposal to allow transgendered people who meet certain stringent requirements to change the sex listed on their birth certificates. When we testified on behalf of our own organizations and the members of the Transgender Health Initiative of New York, we expressed support for the city’s efforts to allow transgendered people to change their birth certificates. But we also expressed our deep concern with certain aspects of the proposed policy.

Our primary concern is this: 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. Each of these individuals must attest to the treatments that a transgendered person has undergone toward gender transition. While that may sound like a minor requirement, it is not.

Many people lack access to even basic health care, let alone the expensive medical and mental health treatments the policy would require. Poor people and people of color are far less likely to be able to access health care than middle-class white people. Transgendered people are overwhelmingly poor and unemployed or under-employed. Many are people of color. How will these transgendered people access the expensive medical and mental health
care required by the city’s proposed policy?

Middle-class white transgendered New Yorkers will benefit from the proposed policy, which is a good thing. But we believe that the policy should be changed so that all transgendered people will be able to benefit from an amended birth certificate, regardless of race or class.

We also find problematic the requirement that an applicant demonstrate that he or she has undergone medical treatment for gender transition. 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. Many transgendered people live full and complete lives without any medical intervention whatsoever. Some choose not to have surgery or take hormones for personal reasons. For others, such medical treatments are medically contraindicated and would harm their health. By making medical intervention a requirement for an amended birth certificate, the city encourages medical treatment that individuals may not want or that may endanger their health.

The policy also requires that an applicant demonstrate that he or she has undergone psychological counseling. There’s no doubt that such counseling may be of benefit to some, but requiring it suggests that a transgendered person is unable to actualize his or her identity without mental health counseling, or that transgender identity itself is a mental illness. No gay person is required to demonstrate that he or she has undergone psychological counseling before coming out. No transgendered person should have to do so either.

We have sent three letters to the Department urgently requesting a meeting to discuss the proposed policy, but we have received no response. We urge the Department to meet with us in order to discuss its proposed policy and our recommendations. We stand ready to work with Department officials to draft a more inclusive policy that will help all transgendered New Yorkers obtain amended birth certificates if they need them to live full and productive lives.

Pauline Park is chair of the New York Association for Gender Rights Advocacy (NYAGRA). Michael Silverman is executive director and general counsel of the Transgender Legal Defense & Education Fund (TLDEF).

This article originally appeared as an op-ed in the 16 November 2006 issue of Gay City News.