NYC proposes new gender birth certificate policy
by Heather Cassell
Members of New York City's transgender community spoke out at a public hearing of the Board of Health last month about the new proposal to amend gender on birth certificates.
Under the change, which could be adopted in December, a person would not be required to have gender reassignment surgery, but would be required to show that they had lived in their preferred gender for at least two years and meet other requirements.
"New York City was lagging behind other jurisdictions in that the policy was in place since 1971," said Paisley Currah, founder of the Transgender Law and Policy Institute and one of the expert advisers. "At the time it wasn't that bad of a policy, but in 2006 it [is] quite conservative."
In 1971, adapting the birth certificate policy to amend gender and recognize transgender individuals made New York City ahead of its time, but it required people to have gender reassignment surgery in order to apply to have the gender on a birth certificate amended. And after a costly process to transition, the new birth certificates weren't reissued with the accurate gender on them. Transgender individuals received a birth certificate with the gender designation removed, essentially giving them a blank or unknown gender.
The new rule under consideration proposes that surgery not be a requirement for a person to change their gender on their birth certificate.
"With only birth certificates that show no gender or birth certificates that show the wrong gender, transgender people face bias, discrimination, and groundless accusations of forgery," Z. Gabriel Arkles, staff attorney for the Sylvia Rivera Law Project, one of the organizations that advised New York City's departments of health and vital statistics, stated in an e-mail. "We have clients who have been kicked out of their housing, harassed in social services offices, fired from jobs, or denied access to other ID because of the discrepancy between the sex on their birth certificate and their current gender."
Seeing that 47 states allow transgender people to correct their birth certificates according to various statutes and a few that have only an administrative process, including the state of New York, in December 2004 transgender advocates petitioned the Department of Health and Mental Hygiene and the Bureau of Statistics of New York City, the only known city to mandate and issue its own birth certificates, to update the gender change policy on birth certificates. The request was made so that birth certificates accurately reflect the new gender in order to address decades of discrimination and stigma issues caused by the current policy. Additionally, advocates said there have been growing identification issues in the post-9/11 era and the Real ID Act that takes effect in May 2008.
But not all transgender advocates are pleased with the proposal, as new requirements have been added that weren't part of the original recommendations. The additional mandates state that two notarized affidavits must be submitted, one from a medical professional and another from a mental health professional who have a minimum of two years experience in transgender healthcare. In addition to the two medical affidavits, transgender people need to provide proof of a name change and that they have lived at least two years in their preferred gender.
The proposal also calls for the new birth certificate to be issued without a notation that a change has been made and place their original birth certificate under seal unavailable for public access.
Dean Spade, currently a law fellow at the Williams Institute at the University of California, Los Angeles, and one of those involved with the policy discussion, said, "They are trying to strike a balance maintaining the strength and meaning of their records and realizing that their old standard is outdated. That's a reasonable concern and we did try to work with them on that, so we did recommend the mental health and physical health provider letters because we saw it as a way for the department of health to feel like they were getting enough verification because they were very concerned about that."
"They wanted to do the right thing by the transgender population, but they needed to make it defensible," said Barbara Warren, director of organizational development, planning, and research at the New York LGBT Community Center. "So I think what they did is that they went back and tinkered with it to make it more ironclad after we had already worked that stuff through and in the process they created another barrier that they didn't intend like the two years and the names."
The additions to the proposed policy issued by DHMH disappointed many people in the transgender community and have created contention that was discussed at the Board of Health. Transgender advocates and experts said that the name change is arbitrary due to gender-neutral names and were critical of the two-year real life requirement. They noted that the World Professional Association for Transgender Health's standard is one year. Other concerns included issues about access to affordable transgender healthcare providers since few cities and insurance companies cover transitioning and the fact that there are so few medical professionals that specialize in transgender healthcare.
"It is a very problematic regulation, the proposed regulation; it's really one step forward and one step back," said Pauline Park, chair of the New York Association for Gender Right Advocacy, who testified at the public hearing.
Michael Silverman, executive director and general counsel for the Transgender Legal Defense and Education Fund Inc., and works with NYAGRA, agreed. "We're looking for a policy that really meets the needs of transgender New Yorkers and we are talking about [a] population that is overwhelmingly poor, which means the vast majority of transgender New Yorkers are not going to be able to avail themselves of the new policy," he said.
Park, Silverman, and others in the community have requested to meet with DHMH officials twice, but they haven't received a response.
The proposal is the result of several meetings between health officials and transgender experts that were held throughout 2005 to review the policy and create recommendations that reflect a more realistic, balanced, and accurate representation of transgender people in order to meet their needs for correct identification as well as the needs of DHMH and BVS.
"This policy looks at the various different ways in which people access healthcare as a part of their transition and it tries to meet people as their lives are lived with as few preconceived notions about how transgender people transition as possible," said Chris Daley, director of the San Francisco-based Transgender Law Center, and who provided recommendations to the advisory committee.
On November 10, in a letter to the editor in the New York Times, Dr. Thomas R. Frieden, the city's health commissioner, stated, "The New York City Health Department and Board of Health will consider all feedback received before we determine whether and how to move forward."
Frieden's letter to the Times hasn't eased tensions and concerns, but whatever the outcome when the final decision is made, June Brown, communications coordinator for the SRLP, said, "I feel that the community has been looking for this for a long time and that this is something that is long overdue. Whether or not they want to revise their revision, I think, either way, the community would be happy if they change the policy where it currently stands."