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FAQ for New Transgender Birth Certificate Regulations Proposed in New York City

What does the current policy say?

Right now, transgender people born in New York City can never get birth certificates that reflect our new gender. If we provide proof of having had vaginoplasty or phalloplasty (types of genital surgery), we can get a birth certificate that shows no gender at all.

What’s wrong with the current policy?
  • The current policy hurts transgender people and does not reflect current understandings of transgender healthcare.The current policy bars many transgender people from getting the documents we need to survive and participate in society. People need birth certificates needed to prove eligibility to work when starting a new job, to get certifications in some professions, to obtain identification like driver’s licenses and passports, and to apply for many types of housing programs and other social services. Having a birth certificate that shows the wrong gender can make doing any of those things difficult or impossible. When we show a certificate with a gender other than the one we live in, we are often accused of fraud, turned away, or harassed, attacked, humiliated, or discriminated against because of our gender. Even in the best of cases we face embarrassment, confusion and delays.
  • The current policy of issuing birth certificates that show no gender is stigmatizing of transgender people. New York City is the only birth certificate jurisdiction in the U.S. that issues birth certificates to transgender people that eliminates the gender. Having no gender listed on our birth certificate makes them far less useful and exposes us to much of the same type of harassment that having a birth certificate with the wrong gender does, especially since it is only transgender people who are issued this type of certificate. In the post 9/11 world with more and more demand for ID, it is particularly important that we have access to accurate documentation that correctly identifies us. Without it, we have very limited ability to fully participate in society by working, voting, traveling, or even entering many buildings.
  • The current policy is based on myths about transgender healthcare. Transgender healthcare is not one size fits all. A transgender person’s treatment plan, based on an individualized assessment of that person’s medical needs, may or may not include vaginoplasty or phalloplasty. In fact, hormone therapy is the most common treatment for transgender people and chest reconstruction surgery is the most common surgical treatment for transgender men.
What do we want the new policy to say?

We want a policy that lets transgender people have birth certificates that show our true genders. We want the policy to reflect the individualized nature of trans healthcare and experience, not to require specific arbitrary forms of treatment or documentation that are not right for all of us.

What does the proposed new policy say?

New regulations have been proposed by the New York City Department of Health for transgender birth certificates. If they are passed, transgender people born in New York City would be able to receive new birth certificates that do show our new gender. Applicants would need to prove that we have completed our transition and intend to live permanently as our gender. Only applicants who are at least 18 years old and who have lived as the new gender for at least the two most recent years would be able to get the new birth certificate. Below is a table comparing the documents needed under the current and proposed new policy.

Is the proposed new policy what we want?

Although the proposed new policy is very good and very close to what trans advocates and expert healthcare providers asked for, a few corrections need to be made.

  • The proposal should be changed to take out the requirement that applicants live in our gender for two years before applying for a new birth certificate. Some transgender people transition completely, including with genital surgery when it is indicated, in considerably less than two years. Also, some transgender people transition completely but are not always able to live fully as our gender at all times because we lack an accurate birth certificate.
  • The proposal should be changed to take out the requirement for a name change order. Some transgender people have gender neutral names that we never change. A name change order has nothing to do with the completeness of our gender transition.
  • The proposal should be changed to take out the requirement that providers must have two years of experience working with transgender people. Some transgender people who were born in New York City may now live in areas where providers with a significant amount of experience in treating transgender people are simply unavailable. Treating providers in these areas can still be qualified to make these assessments.

The proposed new policy can still be amended to fix these problems.

What about policies for people born outside New York City?

This regulation only affects people who were born inside one of the five boroughs of New York City. New York City is its own birth certificate jurisdiction, similar to a state. Different policies affect people born in New York State but outside of New York City and people born in other states, territories, or countries. The Sylvia Rivera Law Project and other advocates, including those from the Michael Callen-Audre Lorde Community Health Center and the Lesbian, Gay, Bisexual & Transgender Community Center, have recently begun negotiations with the New York State Department of Health and hope that these negotiations will result in updating the policy for changing gender on birth certificates there as well. We also hope that local activists will be able to use our work to help them make similar changes in their own areas.

What is the history behind these policies?

The current policy was put into place thirty-five years ago, in 1971. At the time, New York City was a leader among U.S. birth certificate jurisdictions as one of the first to permit any changes to birth certificates reflecting the transition of transgender people. The policy has not been updated since that time, though. In 2002, Dean Spade of the Sylvia Rivera Law Project, with other trans advocates, contacted the New York City Department of Health to raise concerns about the policy. After considerable discussion, in 2005 the Department of Health convened an external advisory committee of experts, including physicians, surgeons, psychologists, attorneys, and policy experts, all with extensive backgrounds in the area of transgender health. Two members of this committee were from the Sylvia Rivera Law Project. The committee met four times with representatives of the Department of Health and discussed the current policy extensively, with attention to the concerns of the Department of Health about the gravity of altering a vital record. The committee reached consensus recommendations to the Department of Health for a new policy. On September 26, 2006, the Department of Health presented a proposed new regulation to the Board of Health. The proposed regulation is largely based on the recommendations of the expert advisory committee, although there are some differences from those recommendations. The requirements that transgender people live in our gender for two years before applying for a new birth certificate, have a name change order, and have two providers with at least two years experience in transgender healthcare each, were not included in the Committee’s recommendations. The Board of Health unanimously approved the proposed regulation for notice and comment.

When will the policy be decided on?

A final decision on the policy will not be made until a Board of Health meeting after the period of notice and comment is over. The meeting will probably be in December 2006, but might be later. At the meeting, the Board could decide to adopt the new regulations exactly as they were proposed, adopt them with amendments, or decline to adopt them, in which case the current regulation will stay in effect.

How can I find out more?

You can read the full text of the proposed regulation (begins on page 5) and the Sylvia Rivera Law Project’s suggested talking points.

What can I do to help?

Now is the time for the public to show support for new regulations that will work for transgender people! We need to show broad support to make sure that this new policy gets passed and that it is as good as it possibly can be. Your support is critical. You can:

  1. Come to the public hearing. The hearing will take place on October 30th, from 2pm to 4pm, in the third floor boardroom at 125 Worth Street, Manhattan. We want to pack the room with people who support fair birth certificate policies for trans people!
  2. Speak at the public hearing. Please contact Gabriel Arkles from the Sylvia Rivera Law Project at 212-337-8550 ext. 113 if you are interested in speaking. We would like to try to coordinate and prepare some speakers to make sure we are as effective as possible. Speakers will be limited to 5 minutes and those who pre-register with the Secretary of the Board of Health in writing by October 29th will be given preference. It helps to submit written comments also if you are speaking. When pre-registering, include a daytime phone number.
  3. Submit written comments. Written comments may be submitted by mail, fax, or e-mail to Rena Bryant, Secretary to the Board of Health, 125 Worth Street CN-31, New York, NY 10013;; fax (212) 788-4315. Comments must be received on or before 5pm, October 30, 2006. Please consider our suggested talking points in making your comments.

Everyone can and should send comments and attend the public hearing. It may be particularly helpful for people to comment or speak at the hearing who are:

  • Transgender people who were born in New York City and are affected by the policies;
  • Medical and mental health professionals with experience in transgender healthcare; or
  • Advocates, service providers, or representatives of organizations who work with trans communities.

For more information about the public hearing, download a copy of the official Notice of Public Hearing. We are asking that the proposed new regulations be adopted with amendments to eliminate the requirements of a name change order, two years living in the new gender, and two years experience in transgender healthcare on the part of the physician and mental health provider.

Comparison Table of Document Requirements to Change Sex on NYC Birth Certificates

Current policy Proposed new policy
1. Name change order 1. Name change order
2. Detailed operative report of genital surgery (vaginoplasty, phalloplasty); 2. Notarized letter with details about the applicant’s medical history from a physician licensed in the U.S. with at least 2 years experience in transgender healthcare; and
3. Post-operative psychiatric evaluation; and 3. Notarized letter with details about the applicant’s psychosocial background and transition from a mental health professional licensed in the U.S. with at least 2 years experience in transgender healthcare
4. Physician’s letter.
= new certificate with no gender = new certificate with new gender
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