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The fight for fair access to birth certificates continues…

On December 5, 2006, the New York City Department of Health and Mental Hygiene withdrew a proposed amendment to the Health Code that would have given access to accurate birth certificates to many transgender people. The amendment would have allowed new birth certificates to be issued to those who could prove with medical evidence they had completed transition and intended to remain permanently in their gender, whether or not they had undergone a specific surgical procedure as a part of transition. The Board of Health approved withdrawing the proposed amendment, which means that for now transgender people born in New York City still need to provide extensive proof of genital surgery in order to receive a new birth certificate. The Board of Health, however, did approve for the first time issuing birth certificates that show a gender for those people who meet those criteria, rather than a birth certificate with no gender.

In September 2006, the New York City Board of Health published the proposed amendment for notice and comment. This proposal was the result of four years of the Sylvia Rivera Law Project and other trans advocates’ (including the LGBT Community Center, Callen-Lorde Community Health Center, and Transgender Law and Policy Institute) negotiations with the Department of Health and extensive consultations with transgender healthcare experts. As the Department and the Board of Health acknowledged in the September meeting, the existing policy for transgender birth certificates was out of date, inconsistent with current medical understandings of transgender healthcare, and a catalyst for discrimination against transgender people.

The old policy allowed people to receive new birth certificates only if they provided extensive evidence of very specific, expensive, inaccessible, and often unindicated genital surgeries — vaginoplasty (the creation of vagina) or phalloplasty (the creation of a penis). The majority of transgender people do not have one of these two surgeries, particularly transgender men who are estimated to have phalloplasty at a rate of less than 10%. Ironically, New York State uses a different narrow set of surgeries as its basis for changing birth certificates: hysterectomy and mastectomy (female-to-male), or penectomy (male-to-female). The two policies beside each other show how arbitrary they are, and how inappropriate a basis for policymaking misunderstandings of a whole population’s health care really is.

During the period of public comment, forty-nine organizations and individuals (many of whom have been clients at SRLP because of the discrimination they endured because their identity documents do not match their gender identity) submitted written comments and eighteen provided oral testimony. These comments were overwhelmingly in favor of the proposed amendment, although many trans advocates, individuals and healthcare providers asked that the proposal be amended to eliminate additional unnecessary barriers to access to birth certificates.

However, on December 5, 2006, the Department and Board of Health withdrew the proposed amendment instead of passing it. In explaining their decision, the Department did not express anything contrary to their prior, well-researched, conclusion that the proposed new policy would be more in keeping with current medical understandings of gender transition and that it would help prevent some of the discrimination and harassment transgender people experience. The Department also acknowledged the overwhelming support for this proposal from public comments and in fact did not refer to any concerns expressed in the public comment period about the move away from an arbitrary genital surgery standard. Rather, the Department advanced unfounded concerns about broader implications for sex segregated facilities such as prisons and about interactions with federal laws such as the Real ID Act.

The Sylvia Rivera Law Project has appreciated working with the Department over the years. The fact that the proposed amendment got to this level shows that the Department understands and takes seriously many of the concerns that we and other advocates, experts, and community members raised about the current policy. Fighting for just policies for our community can be a long process, and this one isn’t over yet. We believe that we will be able to continue to work with the Department and help address their concerns. These concerns do not present well-founded bases to withhold accurate birth certificates to transgender people.

Sex segregated facilities should never discriminate against transgender people. Nonetheless, some of them do, often in violation of law. Sex-segregated facilities almost always make determinations of where to place transgender people entirely independently of what is on people’s birth certificates, although on occasion they will seize on a birth certificate as a pretext for their discrimination.

For example, prisons do not ask for birth certificates when deciding where to place transgender inmates. Most people are not carrying birth certificates when they are arrested, nor does any prison system in the U.S. to our knowledge rely on birth certificates in making determinations about where transgender people are placed. In fact, prisons frequently place people according to prison officials’ perceptions of the person’s genitals and/or assigned sex at birth, regardless of the individual’s gender identity, safety concerns, recommendations of the person’s doctor, or the sex shown on any of their ID. These practices are outrageously unjust and particularly dangerous for transgender women, who are frequently placed in male institutions where they are targeted for brutal rape, abuse, harassment, beatings, and sexual exploitation. This situation desperately needs to be addressed and changed. However, a birth certificate does not affect the process of sex segregation in prisons or jails as it currently works. They are simply separate issues. Birth certificates are also not used in homeless shelters, where according to the Department of Homeless Services’ new policy transgender people in New York City are placed appropriately and non-discriminatorily based on their gender identity, regardless of the sex on their ID.

On the other hand, we have had a trans man client who was outed at work because of his ID, told he could not use any restrooms at all, and who therefore had to quit his job. We also had a trans woman client who was verbally harassed at a domestic violence shelter because of her gender identity, told she had to produce a birth certificate, and thrown out when she could not produce one with a female gender on it. In these cases, the actors engaged in unlawful discrimination because of bias toward transgender people–the inaccurate birth certificate just gave them an opening or a pretext for it. The existence of unlawful discrimination against transgender people in sex segregated facilities is certainly no reason to withhold accurate identity documents from transgender people. The Department of Health should focus on ensuring that they issue birth certificates in the most accurate, just, and secure way possible; the Department of Health cannot and should not try to determine policies about what happens to transgender people in sex segregated facilities.

The federal laws mentioned by the Department of Health, including the Real ID Act, are silent on and irrelevant to these issues. Further, there is no basis to imagine that any security concerns would be raised by this proposal. Birth/death certificate matching and other security measures would not be made any more or less difficult by permitting transgender people to have corrected birth certificates upon presentation of different, more accurate and relevant medical evidence than the Department now requires. Transgender people are not committing fraud; they are simply trying to survive and access ID that accurately reflects their gender. The proposed amendment provides for extensive evidence that would be a very thorough safeguard against any possible fraud. In fact, having the correct gender on one’s identity documents is likely to prevent inconsistencies that are often confusing for government officials. The current policy which forces many transgender people born in New York to use inaccurate birth certificates only presents a barrier to appropriate identification for security or other purposes.

We are pleased that the Board of Health did approve issuing birth certificates that actually show a gender to those transgender people who are able to provide proof of genital surgery. This aspect of their decision is a victory that will concretely help those transgender people who meet the Department’s criteria and which would not have happened without the hard work of the Sylvia Rivera Law Project and many others in the community. However, the many transgender people born in New York City who need a birth certificate reflecting their current gender and who have not had this specific procedure as a part of their transition will still be left without options, which means we still have work to do.

Transgender people are estimated to have a murder rate 7-10 times higher than the national average. Frequently they face violence and discrimination when their identities are discovered. It is for that reason that the Board of Health recognized, in the 1970’s, that transgender people should be allowed corrected birth certificates. The promise of that policy change remains unrealized as long as the standard for changing gender is a narrow set of surgeries that do not represent the realities of transgender health care, and transgender people remain severely vulnerable to discrimination and violence. The Department of Health has indicated that they are open to continuing to work with us and that amending this regulation in the future is still a possibility. We look forward to continuing this process and hope to finally arrive at a policy that is actually based on sound and well-reasoned grounds and that works for our community.

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