Testimony on Correction of Gender Markers on Birth Records

November 10, 2014

I. Introduction
My name is Bobby Hodgson and I am an attorney at the New York Civil Liberties Union (the “NYCLU”). I would like to thank Councilmember Johnson and the Committee on Health for inviting the NYCLU to provide testimony today in support of proposed legislation seeking to update New York City’s policy for correcting an individual’s gender marker on a birth record (collectively, “the Bill”).

The NYCLU, the New York State affiliate of the American Civil Liberties Union, is a not-for-profit, nonpartisan organization with eight offices across the state and nearly 50,000 members. The NYCLU’s mission is to defend and promote the fundamental principles, rights, and constitutional values embodied in the Bill of Rights of the U.S. Constitution and the Constitution of the State of New York. This includes the rights to equality, privacy, and personal autonomy that are implicated by today’s legislation. In light of our long history of vigorously defending the rights and liberties of transgender and gender nonconforming individuals, the NYCLU is pleased to testify in strong support of the Bill.

ll. The Proposed Changes Are In Keeping With Other Modern Policies That Have Removed Outdated Surgery Requirements
This Bill proposes changes that will help to bring New York City’s birth certificate policy in line with modern standards by removing outdated surgical requirements and providing criteria for correcting a birth certificate that more accurately reflect well-established best practices. It will improve the lives of transgender New Yorkers by ensuring they have access to an identity document that correctly reflects their gender.

There is widespread consensus that the current New York City policy for correcting an inaccurate gender marker on a birth certificate—which, unchanged in over forty years, requires extensive evidence that a person has undergone one of a short list of surgeries that many transgender people never undergo— is outdated. New York State has abandoned such surgical requirements, along with many other jurisdictions including California, Oregon, Vermont, Washington, the District of Columbia, and the federal government (for U.S. citizens born abroad as well as for passports, Social Security records, green cards, and naturalization certificates).¹ The American Medical Association, the American Psychological Association, the World Professional Association for Transgender Health, and the National Association of Social Workers, among others, have likewise advocated for abandoning surgical requirements.²

Because New York City lacks a policy that aligns with this consensus, the vast majority of transgender people in the city are unable to obtain birth certificates that accurately reflect their identity. Eight out of ten transgender women and nine out of ten transgender men have not had the surgeries the policy currently requires, either because they cannot get such a surgery or because they do not desire it.³ Surgery is not an option for many due to other health conditions, and discriminatory health insurance policies deny coverage for many others. The Bill will provide a long-overdue remedy for the large percentage of transgender New Yorkers who are currently saddled with an inaccurate identity document and no way to correct it.

III. Accurate Birth Certificates Are Vital For Transgender New Yorkers
As a fundamental identity document, an accurate birth certificate is critical to equal participation in society. In New York, birth certificates are required for, among other things: obtaining professional certifications; demonstrating work eligibility; registering for school; obtaining access to public facilities; obtaining a gun permit; and obtaining access to public benefits. For some, in particular for low-income New Yorkers, it is the only identify document available to be used when applying for job or obtaining health insurance.

In addition, having a valid birth certificate that accurately reflects one’s identifying details is often necessary in order to obtain a host of other identity documents, and presenting a birth certificate is always required in order to obtain a New York State drivers’ license or a United States passport. All of these forms of identification are then used to prove one’s identity in countless everyday situations. In order to enter most schools, for example, a parent must show identification. The same is true for visitors at many hospitals, offices, and prisons. In addition, identification cards for many medical programs—programs that provide vital care—are necessary in order to ensure full access to services.

When a person is forced to show identification bearing a gender marker that conflicts with that person’s appearance and gender identity, it not only creates confusion about whether the identification is genuine or fraudulent, it also “puts the person at risk of discrimination, harassment, and violence in nearly every aspect of daily life,” since “[u]ncorrected documents have the potential to ‘out’ a person as transgender every time he or she begins a new job, applies for housing, credit, or public benefits, goes to a bar or club, is subject to a routine traffic stop, or boards an airplane.”⁴ Indeed, according to the results of a national survey, forty percent (40%) of transgender people who presented an uncorrected identification document in the course of their daily life experienced harassment as a result, and fifteen percent (15%) were asked to leave the building they were attempting to access. ⁵

Thus, New York City’s current policy locks transgender New Yorkers into an endless cycle of public misidentification based on an error in their birth record that the City has rendered ineradicable. This Bill can go a long way towards solving that problem. While using misgendered birth certificates can lead to accusations of fraud, harassment, discrimination, repeated outings, and denial of services, presenting a corrected birth certificate makes it possible for transgender New Yorkers to correct a host of other forms of identification and significantly reduce the incidence of such harmful experiences in their daily lives.

IV. The Current Policy Is In Tension With The New York City Human Rights Law And The Federal Constitution
The insurmountable barriers created by the current policy conflict with the principles of the New York City Human Rights Law and the federal Constitution. The City’s surgical requirements bar access to accurate identification for the large percentage transgender New Yorkers for whom surgery is not available or is not desired. This effectively freezes an entire class of people out of a vital set of benefits based on their gender identity. The New York City Human Rights Law, however, prohibits discrimination on the basis of “gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth.”⁶ Due to the grave implications of a City policy that denies important benefits to New Yorkers on the basis of their gender identity, the NYCLU strongly supports the passage of this Bill and the removal of current barriers to accessing accurate identification.

Further, courts have held that individuals have a constitutional right to privacy regarding their transgender identity, and the current policy places a significant burden on that right. In Powell v. Schriver, the Second Circuit—the federal appellate court with jurisdiction over New York—held that the Constitution “does indeed protect the right to maintain the confidentiality of” one’s transgender status.⁷ Because the current policy leads to transgender individuals being forced to “out” themselves every time they must present identification, it threatens to violate their constitutional rights. Accordingly, the Council’s proposed Bill will be particularly welcome in light of the increased privacy that it will provide transgender New Yorkers.

V. The Proposed List Of Licensed Individuals Who May Submit An Affidavit In Support Of An Application To Correct A Gender Marker Is Appropriate
The NYCLU strongly supports the Bill’s broad, inclusive list of licensed professionals who can attest to an applicant’s gender identity or affirmed sex in support of an application to correct a birth certificate. The proposed legislation includes provisions replacing the surgical requirement of the City’s current policy with a more reasonable requirement that the applicant submit an affidavit from one of a comprehensive list of licensed professionals—including social workers, therapists, doctors, and nurse practitioners—whose training and expertise allow them all to confirm that a corrected birth certificate would more accurately reflect the gender of the applicant.

This inclusive list of qualified professionals is vital to ensuring the success of the Bill, since creating an unnecessarily narrow list of providers would most severely impact those particularly vulnerable individuals who most need accurate identification. Barriers to accessing these providers remain a significant concern, since transgender people are often unable to obtain medical and mental health care due to a combination of discrimination, unemployment, and lack of health insurance. Transgender people are less likely to have health insurance and are more likely to delay medical treatment due to discrimination and/or inability to pay, and seventeen percent (17%) of transgender New Yorkers have been denied medical care simply for being transgender. ⁸

Thus, any reasonable list of providers should include all those qualified individuals who are the most readily-available to a broad range of New Yorkers, and the proposed list represents a broad group of qualified licensed professionals to whom transgender New Yorkers in need of a corrected birth certificate may have access. In light of the otherwise-commendable and welcome policy change proposed by the Department of Health and Mental Hygiene, which does not include Licensed Master Social Workers (“LMSWs”) on its list, the NYCLU joins other advocates and experts in highlighting the necessity and appropriateness of including LMSWs, as the Bill does. LMSWs serve many of the City’s most vulnerable and underserved populations and, as testimony from the National Association of Social Workers confirms, it is well within their scope of practice to sign an affidavit in support of an application to correct a gender marker. LMSWs are among the most affordable and accessible service providers for transgender New Yorkers, and their exclusion from this list would create significant—potentially insurmountable—barriers for many people attempting to access the benefits of this new-and-improved policy.

VI. Conclusion
In conclusion, we applaud Councilmember Johnson, the Bill’s sponsors in the Council, and the Department of Health and Mental Hygiene for their recognition of the need to address this important issue. We support the common-sense improvements the Bill proposes to bring New York City in line with other jurisdictions that have modernized their own processes for correcting a birth certificate. It is the opinion and testimony of the NYCLU that the proposed legislation is necessary, long-overdue, and will greatly improve the City’s ability to respect and safeguard the rights of its transgender residents. This is a welcome step forward in fulfilling the City’s mission to treat all New Yorkers equally, and we respectfully submit this testimony in support of the Bill to the Committee.

Footnotes

¹ Cal. Health and Safety Code § 103425-103445; Or. Rev. Stat. § 33.460; 18 V.S.A. § 5112; Washington Dept. of Health Proc. CHS-B5 (2008); Code of the District of Columbia § 7-210.01; United States State Dep’t, Foreign Affairs Manual, 7 FAM 1300 Appendix M: Gender Change; United States Soc. Sec. Admin., RM 10212.200 Changing Numident Data for Reasons other than Name Change; United States Citizenship & Immigration Services, Adjudication of Immigration Benefits for Transgender Individuals; Addition of Adjudicator’s Field Manual, Subchapter 10.22. Indeed, when New York City established its most recent form of City-issued identification, the Municipal ID Card, the Council adopted a straightforward gender marker policy that allows transgender individuals to simply self-attest to their own gender. New York City Admin. Code § 3-115(c)(1).

² American Medical Assoc., Conforming Birth Certificate Policies to Current Medical Standards for Transgender Patients, H-65.967, available at https://ssl3.ama-assn.org/apps/ecomm/PolicyFinderForm.pl?site=www.ama-assn.org&uri=/resources/html/PolicyFinder/policyfiles/HnE/H-65.967.HTM; American Psychological Assoc., Transgender, Gender Identity, & Gender Expression Non-Discrimination, available at http://www.apa.org/about/policy/transgender.aspx; World Professional Assoc. for Transgender Health, Identity Recognition Statement, available at http://www.wpath.org/uploaded_files/140/files/Identity Recognition Statement 6-6-10 on letterhead.pdf; National Assoc. of Social Workers, “Transgender and Gender Identity Issues,” Social Work Speaks: National Association of Social Workers Policy Statements 2009-2012 at 347 (8th ed. 2009).

³ Grant, Jamie M. et al., Injustice at Every Turn: A Report of the National Transgender Non-Discrimination Survey, National Center for Transgender Equality (2011) at 79, available at endtransdiscrimination.org/PDFs/NTDS_Report.pdf.

⁴ Harper Jean Tobin, Fair and Accurate Identification for Transgender People, LGBTQ Policy Journal at the Harvard Kennedy School (2011), available at http://isites.harvard.edu/icb/icb.do?keyword=k78405&pageid=icb.page414493..

⁵ Nat’l Gay and Lesbian Task Force, Executive Summary of the National Transgender Discrimination Survey (2011), available at http://www.endtransdiscrimination.org/PDFs/NTDS_Exec_Summary.pdf; see also Wilson v. Phoenix House, 42 Misc.3d 677, 688 (Kings County Sup. Ct. 2013) (noting that transgender people “often experience harassment and discrimination that results in social marginalization, including the denial of education, employment, housing opportunities, and health care.”).

⁶ 8 N.Y. City Admin. Code § 102(23).

⁷ 175 F.3d 107, 111 (2d Cir. 1999).

⁸ Grant, Jamie M. et al., Findings of the National Transgender Non-Discrimination Survey: New York Results, (2011) at 2, available at http://www.endtransdiscrimination.org/PDFs/ntds_state_ny.pdf.