Issue:  Vol. 48 / No. 11 / 15 March 2018

Mixed decision on NY TG proposal


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In a confusing and surprising turn of events, the New York City Board of Health Tuesday, December 5 paved the way for transgender people who have had surgery to change their birth certificates, but health department officials withdrew all other proposed changes.

Key among those was a provision that would have allowed transgender people to change their birth certificate without undergoing surgery.

The decision by New York City's Department of Health and Mental Hygiene to withdraw the proposals came early Tuesday. The department agreed to make amendments to birth certificates for transgender individuals born in New York City that reflect their actual gender, but only went as far as complying with New York state's and other states policies that already issue gender changes on birth certificates.

After four years of negotiations and working on an agreeable proposal, the decision to hold back on any of the other proposed changes to update the policy has stunned transgender advocates, especially when one of the reasons given by the health department was implementation of new federal identification policies and security. Advocates stated that this was never brought up during the many meetings they had.

"We were really surprised to see that the Department of Health and Mental Hygiene suggested that their own policy proposal be rejected by the Board of Health," said Paisley Currah, founder of the Transgender Law and Policy Institute, who was one of the advisers to the health department.

Local transgender advocates agreed.

"It's just frustrating to have the alleged security concerns raised at the last minute when the proposal would have increased security, not decreased it," said Chris Daley, director of the Transgender Law Center in San Francisco, "It would have made a more consistent record for people between their different identity documents."

Some transgender advocates see the setbacks to implementing the policy as a slap in the face. The department is suddenly being very conservative and cautious and projecting "what if?" questions to stall taking action to protect a small community of American citizens.

"It's impossible for us to address ramifications that can't be foreseen," said Michael Silverman, executive director of Transgender Legal Defense and Education Fund. "In the end what they are essentially saying is as long as there is a situation where we can't think of everything that could possibly happen we can't go forward – which is just a way of saying we won't go forward."

Transgender advisers to the DHMH aren't so discouraged. Officials at DHMH have been supportive and showed their support by dismissing opponents' concerns regarding making changes to birth certificates that are considered historical documents and increasingly an important form of identification. The department reminded opponents that the city has been issuing revised birth certificates to transgender people for 35 years.

Those birth certificates, however, 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.

That will change under the board's action this week.

Officials also agreed with expert advisers and community members that requiring documentation of a court-ordered name change was excessive, especially in light of gender-neutral names.

Health department officials also appear to be reluctant to give up their new understanding of gender, despite their action to continue issuing amended birth certificates only to people who have undergone surgery. In their response to the public forum, officials quoted a New York County Supreme Court judge's statement citing a 1995 case's (Maffei v. Kolaeton Industry Inc.) determination of seven variations of how gender is currently recognized.

This hints that potentially not all is lost, that the department might be open to future discussions about the issue.

Transgender advisers working with the health department plan to continue working to implement the policy that was originally proposed. Z. Gabriel Arkles, staff attorney for the Sylvia Rivera Law Project in New York City, and his colleague, Dean Spade, both of whom were initial advisers to the department of health on updating the policy, said they would continue working with the department. Arkles said that he believes the health department is supportive.

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