Regarding Proposed Birth Certificate Requirements For Transgender Persons
Testimony Of Elisabeth Ryden Benjamin On Behalf Of The New York Civil Liberties Union Before The New York City Department Of Health And Mental Hygiene Regarding Proposed Birth Certificate Requirements For Transgender Persons My name is Elisabeth Benjamin and I am the Director of the Reproductive Rights Project at the New York Civil Liberties Union ("NYCLU").1 The NYCLU, the state affiliate of the American Civil Liberties Union, has approximately 48,000 members across the state. The NYCLU is devoted to the protection and enhancement of those fundamental rights and constitutional values embodied in the Bill of Rights of the U.S. Constitution and the Constitution of the State of New York. The NYCLU thanks the New York City Board of Health for the opportunity to present testimony today regarding proposed amendments to the New York City Health Code that pertain to the issuance of new birth certificates for transgender persons.2 A birth certificate is a vital document needed to obtain identification such as a driver's license or passport, to prove eligibility for employment, and to apply for many types of social services. Transgender persons face serious obstacles in accessing these necessary identity documents without a birth certificate that accurately reflects their current gender. Incorrect gender identification may lead to bias, harassment, or discrimination, and makes it more difficult for government officials or agencies to accurately identify transgender people. The NYCLU supports the New York City Department of Health and Mental Hygiene's efforts to correct the problems with existing regulations governing the issuance of birth certificates. Our testimony will describe: first, the deficiencies in the current regulations and the Department's proposed changes; and second, how the Department's proposed regulations should be revised to ensure that they are not unduly burdensome on transgender residents in New York City. I. The Need for New Regulations The existing Health Code provision governing the issuance of a new birth certificate poses two significant problems for transgender individuals. First, the Health Code applies an antiquated standard of medical care because it requires applicants to provide proof that they underwent "convertive" surgery. Second, even if an applicant receives a new birth certificate from the Department, that certificate is of limited utility because it omits a gender designation. The proposed amendments to the Health Code would remedy these problems by allowing transgender persons born in New York City who are at least 18 years old to obtain birth certificates indicating their new gender by demonstrating that they have completed their transition and intend to live permanently in their transitioned gender. The new regulations would eliminate the requirement of proof of genital surgery. The NYCLU strongly endorses both of these proposed changes. A. The Surgery Requirement Is Inconsistent with Modern Standards of Medical Care The current Health Code requiring transgender persons to provide proof of "convertive" surgery fails to meet modern standards of care in transgender medicine. Moreover, the Department limits the universe of "convertive" surgery to solely include vaginoplasty or phalloplasty surgery. This requirement is based on the misconception that sex reassignment surgery is part of every transgender person's transition. The majority of transgender individuals, however, do not undergo the same course of treatment traditionally prescribed for Gender Identity Disorders; in fact surgery is not a part of the transition process for most people. Under the current law, transgender persons are faced with the choice of undergoing surgical procedures that may not be necessary or appropriate, or possessing documentation that fails to reflect their true identity. The proposed law, which we support, would require that two medical professionals provide detailed documentation attesting to the transition of the applicant's gender, eliminating the surgery requirement. The study of Gender Identity Disorder, a term used by medical professionals to describe transgender persons, is a relatively new field of medicine. Gender Identity Disorder has two components: first, a person must have a strong and persistent cross-gender identification; and second, there must be a persistent discomfort with one's assigned sex. Although the etiology of Gender Identity Disorder is unknown, the weight of scientific evidence suggests that the condition has a biological, rather than a purely psychological, basis. At least one New York court has recognized this evidence. In 1979, the first widely recognized standards of medical care were developed by the World Professional Association for Transgender Health, Inc. ("WPATH"). These standards of care indicate that, in the 1970s, clinicians tended to focus on sex reassignment surgery. But, as the field matured over the next few decades, medical experts "recognized that some persons with bona fide Gender Identity Disorders neither desired nor were candidates for sex reassignment surgery." Although subject to individual patient needs, the modern transgender standards of care recognize three phases of medical treatment (known as "triadic therapy") after a diagnosis of Gender Identity Disorder has been established: first, a real-life experience in the desired gender; second, the administration of hormones of the desired gender; and third, surgery to change the genitalia and other sex characteristics. However, "[c]linicians have increasingly become aware that not all persons with gender identity disorders need or want all three elements of triadic therapy." Accordingly, requiring an operative record of a surgical sex change in order to receive a corrected birth certificate fails to account for the nature of transgender health care; a transgender person's treatment plan is based on an individualized assessment of medical needs that may not include genital surgery. Hormone therapy is the most common treatment for transgender people. While chest reconstruction surgery is a common surgical treatment for transgender men, recent data shows that few transgender men have genital surgery. Current regulations thus exclude a significant number of transgender people from acquiring the basic documentation that they need to live and work in New York City. B. Omission of Gender Designation Is Confusing, Stigmatizing, and of Limited Utility The lack of a gender designation on newly issued birth certificates renders the document much less useful and exposes transgender persons to many of the same problems faced by those with incorrect gender designations. This failure to provide a gender designation is stigmatizing because it applies only to transgender persons; it is also unnecessary, and leads to a host of practical problems. Moreover, New York is the only jurisdiction that omits the gender designation -- every other jurisdiction (except ID, TN, and OH which do not allow any changes of birth certificates to reflect the transition of transgender people) issues a birth certificate reflecting the new gender. The NYCLU supports the Department's proposal to include the gender designation on new birth certificates. II. The NYCLU's Concerns About the Proposed New Regulations There are, however, the following other aspects of the proposed Code that cause the NYCLU significant concern, and which the NYCLU addresses in detail below: (1) the proposal to require that a transgender person live in the acquired gender for a period of at least two years – even thought the recognized standard of care for gender transition is only one year; (2) the retention of the requirement for transgender individuals to acquire a Court Ordered name change; and (3) the proposal to add a series of burdensome requirements on health care professionals. The remainder of our testimony addresses these issues in turn. 1. Two Year "Real Life Test" Is Inconsistent with the Medical Standard of Care for Transgender Individuals The proposed new Code would require that applicants live in their desired gender for two years before applying for a new birth certificate. This requirement imposes an unnecessary burden on transgender persons and seemingly has no basis in current medical or mental health treatment. The necessary length of time for an individual to live in his or her gender in order to completely transition and demonstrate an intent to live permanently in that gender should be determined by qualified medical and mental health providers. If any time period is required, however, accepted standards of care suggest that one year is sufficient. Additionally, many people cannot fully transition at their workplace or in other central institutions until they possess corrected documentation required by their workplace or institution. To make transgender persons in these situations wait for two years means that they are unable to participate fully in the medical standard of care recommendations, which is to engage in a documented real-life experience of living in their desired gender. The proposed regulation should be amended to address this concern and, at the very least, the requirement should be eased to a period of one year. 2. The Name Change Requirement is Inappropriate and Unlawful The proposed regulations retain a name change requirement. The NYCLU believes a name change order should only be required when an individual also wishes to change the name on his or her birth certificate. Many transgender persons may not choose to change their name as a part of their transition. Because an individual's name has no relevance to the correct determination of his or her gender, the proposed regulation should be amended to remove this requirement. Gendered connotations of a name often change over time. Furthermore, why should an individual with a gender-neutral name such as "Chris" or "Dale" be required to change his or her name in order acquire a birth certificate? Requiring individuals to change their name serves no legitimate government interest. Moreover, such a requirement raises profound civil liberties concerns about the ability to choose one's own name. This proposed requirement in the Code is legally suspect. To burden the ability of an individual to express his identity through his choice of name triggers strict scrutiny under both the Free Expression Clause of the New York Constitution and the First Amendment of the federal Constitution. The choice of one's name is perhaps one of the most expressive aspects of one's personality. As one court explained,
Requiring transgender individuals to change their names unconstitutionally interferes with a citizen's exercise of his or her expressive liberty regarding an intensely personal realm of his or her life. Just as the Courts recognize the important expressive value of an individual's name, so should the New York City Health Code. Accordingly, the proposed Code should not require an individual to change his or her name in order to acquire a new birth certificate.
3. The Two Year Specialized Training Requirement is Unduly Burdensome
The proposed regulations require medical and mental health care providers to possess at least two years of experience related to transgender treatment in order to provide the necessary proof of the applicant's gender transition. This requirement may unfairly harm those who have limited health care choices. One out of every four New York City residents lack health insurance and, accordingly, have limited access to health care providers. Specialized courses on transgender health care are uncommon, even in New York City; and, in any event, this requirement is unnecessary because many providers are qualified to treat and evaluate transgender persons without specialized course work.
With the increasing demand for identification since September 11, 2001, it is particularly important that transgender persons have access to accurate identity documents. Without accurate identification, transgender persons have limited ability to work, vote, travel, enter buildings, or otherwise participate fully in society. Transgender people need birth certificates that accurately indicate their true gender and reflect the individualized nature of transgender health care and experience.
|Given the delicate nature of any name change application . . ., a trial court should not intervene in the name selection process; nor should the court, to any extent or degree, inhibit or "chill" an applicant's freedoms of expression, guaranteed by the First, Fourth, and Fourteenth Amendments to the United States Constitution, to be known as he or she desires.|