NEW YORK (The Blaze/AP) — Louis Birney had been through sex-change surgery and wanted his birth certificate to reflect the man he’d become, at nearly 70.
City health officials said they needed a psychiatric report and detailed surgical records to switch the gender on his birth certificate — requirements that put up undue roadblocks, a judge recently ruled in a case that highlights legal questions around a sensitive issue of identity.
The ruling, made public last week, orders the city Health Department to re-evaluate his request and questions the agency’s understanding of “the lives and experience of transgender people.” It marks something of a victory for advocates seeking to make it easier for people who have changed gender to change their identity documents.
“I hope that the Department of Health will really take this to heart and really see that the court is, in this decision, recognizing the importance of respecting the identities of transgender individuals,” said Erica Kagan, a lawyer for Birney, who declined to be interviewed.
Updating identity documents has become a growing concern for transgender people as government-issued IDs are increasingly needed and scrutinized, whether to get a job or board a plane. Some transgender people have ended up with one sex listed on a driver’s license and another on a birth certificate, for instance, because of a patchwork of agencies and rules.
The Sylvia Rivera Law Project explains the complications it sees with current New York City regulations:
The current policy bars many transgender people from getting the documents we need to survive and participate in society. People need birth certificates needed to prove eligibility to work when starting a new job, to get certifications in some professions, to obtain identification like driver’s licenses and passports, and to apply for many types of housing programs and other social services. Having a birth certificate that shows the wrong gender can make doing any of those things difficult or impossible. When we show a certificate with a gender other than the one we live in, we are often accused of fraud, turned away, or harassed, attacked, humiliated, or discriminated against because of our gender. Even in the best of cases we face embarrassment, confusion and delays.
After having sex-change surgery in his late 60s in 2009, Birney applied to change his birth certificate. He enclosed a doctor’s letter saying the operation had been completed successfully.
The Health Department called for more details on the “reconstruction procedure,” plus a psychiatric evaluation and a physician’s record of a post-operative examination.
City officials have said they need robust proof of a permanent sex change to make sure there are safeguards on changing a crucial identity record, one used to obtain important items ranging from passports to government benefits.
Birney said the requests invaded his privacy and he’d already provided enough information to satisfy a city regulation requiring proof of the surgery — a demand that is itself a focus of criticism from transgender advocates.
In ruling on Birney’s lawsuit, Manhattan state Supreme Court Justice Paul G. Feinman’s ruling declined to address whether the surgery requirement was justified.
But he faulted the Health Department for not providing “a clear, straightforward list” of requirements for changing a birth certificate. And he suggested that calling for psychological records amounted to overreaching for information and underappreciating what it takes to change genders.
“It does not seem very likely that an individual would go through all the years of required preparation for surgical transition, including psychotherapy, undergo major surgery, assume life under his or her new gender, and then decide it was all a mistake and change back,” Feinman wrote. “This apparent assumption tends to suggest a certain ignorance by the department of the lengthy transition process and the lives and experience of transgender people.”
City lawyers are considering what to do next.
“We appreciate the judge’s detailed review of this important topic,” city Law Department attorney Sheryl Neufeld said Friday.
Birney was among a handful of transgender people who sued the city last year over their efforts to change their birth certificates. At least three other cases, which focus on challenging the requirement for genital surgery, are continuing. They say a surgery requirement is unfair, noting that some people can’t have the requisite operation for financial or medical reasons.
Here’s information about the case from last year:
While the decision in Birney’s case is welcome, “the city still has not said why transgender people have to undergo the surgeries that it requires just to be recognized as who they are,” says Noah Lewis, an attorney with the Transgender Legal Defense & Education Fund. The New York-based group represents some of the people challenging the surgery requirement.
The city Health Department considered dropping it in 2006 but decided not to, saying the change “would have broader societal ramifications than anticipated,” particularly for hospitals, jails, schools and other institutions that need to segregate people by gender.
The state Health Department, which sets birth certificate policies for areas outside the city, also requires detailed surgery records and a psychological report to make a gender change.
Some other states and agencies don’t, however.
Washington state requires only a doctor’s or psychologist’s note attesting to “appropriate clinical treatment” to change the gender on a driver’s license. And the U.S. State Department announced in 2010 that transgender travelers no longer would need surgery — just a doctor’s certification of appropriate treatment — to declare a new gender on a passport.