Easing the Law for New Yorkers Shifting Gender

[pdogg]

 

New York City is poised to redefine what constitutes a transition from one sex to another, allowing a person’s own identity, not anatomy, to be the determining factor.

 

The change, which is being advanced both by the City Council and the de Blasio administration, would allow alterations to birth certificates with the blessing of any of a broad range of health care professionals, including doctors and psychotherapists but also physicians’ assistants, nurse practitioners and midwives.

 

The twin proposals, introduced on Tuesday, would allow someone to amend the document so long as a qualified professional attests that the requested change “more accurately reflects the applicant’s sex” and is consistent with “contemporary expert standards regarding gender identity.”

 

Officials and advocates said the policy would be among the most progressive for transgender rights around the country, easing a long-established burden for many New Yorkers wading through bureaucratic labyrinths as they seek employment, driver’s licenses or pension benefits, among other things.

 

Currently, under city law, anyone hoping to change the gender on a birth certificate must provide proof of convertive surgery.

 

With the proposed change, said Councilman Corey Johnson, the bill’s sponsor, “Your gender becomes less about your physicality and more about how you live as a human being.”

For years, advocates say, the city has lagged on this front of transgender rights, despite prodding over the past decade to update its birth certificate policies.

 

In 2010, the United States Department of State removed the surgical requirement for updating passports. Other federal agencies have adopted similar policies, and several jurisdictions have recently eliminated the surgical requirement for birth certificates, including Vermont, California and Oregon.

 

New York State did the same earlier this year, allowing individuals to submit a letter from a licensed medical provider stating that “appropriate clinical treatment” was underway. (Advocates said this could include hormone treatment, but was not required to.)

 

Yet the city’s plan goes further than many others, its proponents say, by expanding the categories of professionals authorized to vouch for a patient’s gender transition, and by refocusing their expertise away from medical or therapeutic processes and onto a person’s conception of him or herself.

 

The longstanding requirement of convertive surgery would be abandoned under the proposal, and old birth records, including all supporting documentation, would be sealed, according to Mr. Johnson’s office.

 

Though an expansion of transgender rights has not been considered a signature issue for Mayor Bill de Blasio, he did express support as a candidate for easing the requirements in changing the gender designation on birth certificates.

And in July, when the mayor signed legislation to create a new municipal identification card, he noted that transgender people would for the first time be allowed to choose the gender designation on their IDs.

 

“That’s an important opportunity,” he said.

 

The measure, which would need to pass the City Council to become law, is supported by its speaker, Melissa Mark-Viverito. On Tuesday, the city’s Board of Health introduced an equivalent set of guidelines, supported by the health commissioner, Dr. Mary T. Bassett. The changes could come to a board vote in December.

 

By pursuing the policy on parallel tracks, the city could preempt any legal concerns about whether the administration or the Council has the authority to approve the shift. (Court decisions last year invalidating Mayor Michael R. Bloomberg’s proposed ban on large sugary drinks called into question the board’s ability to enact changes on its own.)

 

New York City is one of 57 jurisdictions in the country, including New York State, that have responsibility for their own birth registration, according to the city’s Department of Health and Mental Hygiene.

 

Under the city’s existing health code, proof of convertive surgery, generally interpreted as genital surgery, is not the only requirement to change the sex on a birth certificate. A person must also have a court-ordered name change, the city said.

That requirement would also be done away with under the proposed legislation.

 

The relevant section of the Health Code has not been amended in 43 years.

 

In 2006, the Board of Health considered a similar proposal, which would have removed any explicit medical requirement for a birth certificate change while asking transgender people to prove that they had changed their name and lived in their stated gender for at least two years.

 

Applicants would have also been asked to provide affidavits from a doctor and mental health professional explaining why their patients should be considered members of the opposite sex and affirming that the change would be permanent.

But the Board of Health unexpectedly withdrew its proposal in December 2006. Some doctors and psychiatrists had been skeptical about the change, arguing that self-identification should not override medical history.

 

“They should not change the sex at birth, which is a factual record,” Dr. Arthur Zitrin, a member of a panel of transgender experts convened by the city at the time, said then.

 

Elsewhere, opponents to similar proposals have sometimes argued that the changes could be subject to fraud or abuse. In January, Gov. Chris Christie of New Jersey vetoed legislation that would have removed that state’s surgical requirement for birth-certificate changes, saying the bill’s sponsors sought to change the application process “without maintaining appropriate safeguards.”

 

In New York, the issue had been largely dormant at City Hall for most of the last eight years.

 

“It’s about time,” Carrie Davis, the chief programs and policy officer for the Lesbian, Gay, Bisexual and Transgender Community Center, said on Tuesday. “It’s not a hand up. It’s just not kicking the stool out from under people.”

 

In June, the American Medical Association also adopted a new policy supporting an elimination of the surgical requirement for birth certificate changes.

According to the National Transgender Discrimination Survey, 40 percent of transgender people who were interviewed reported being harassed when they showed identification that did not match their own gender identity.

The survey also suggested that rates of hiring and housing discrimination were much higher among those without an updated driver’s license.

 

“Transgender New Yorkers face daily discrimination,” said Dru Levasseur, the transgender rights project director for Lambda Legal, praising the proposal. “There’s a lot of unfounded fear and political blowback. We’ve come a long way in terms of our understanding.”

 

Patricia Harrington, 61, an advocate who completed her gender transition in 2001, said that her birth certificate had been a persistent source of strife in recent years, particularly during a move to New Jersey in 2010. (Ms. Harrington was born in Queens.) “They look at the documents, they see that there’s a mismatch, and they just assume fraud,” she said. “You feel like you’re being made to be a criminal.”

http://www.nytimes.com/2014/10/08/nyregion/easing-the-law-for-new-yorkers-shifting-gender.html