Gender Change and Birth Certificates in Pennsylvania
By of Law Office & Mediation Services of Elissa C. Goldberg posted in Gender change on Friday, July 15, 2016.
Gender change and transgender rights are much in the news lately, along with active discussion of what constitutes a gender shift, when it is considered complete and when the law takes note of the change.
Rather, I should say, when the laws, plural, take note of the change. There are many places a person’s gender is noted on legal documents, each under its own network of local, state and federal laws. In Bucks County, for instance, a transgender person can change their name through the courts fairly easily, although the process is lengthy. I regularly help clients with this process, which concludes at a hearing in front of a judge.
Other documents, like drivers’ licenses in Pennsylvania and U.S. passports, can be changed to reflect new gender whether or not the individual has completed a surgical gender change, though a physician or therapist’s signature might be required.
A birth certificate, however, is the gold standard of all identification documents. From it flow all others: any number of photo IDs, including a driver’s license, state ID, employment or armed forces ID. In turn, these diverse documents can be used to obtain credit, open bank accounts, buy mortgages, register with educational institutions, and any number of other transactions common for daily life.
So, it would seem logical that a transgender person would start by changing their name, then their birth certificate, using these two documents to change all other records. In Pennsylvania, as with a vast majority of states, this can only be done AFTER an individual has completed gender change surgery and only with a letter from the surgeon who actually performed the procedure.
If an individual identifies as a different gender but has not undergone surgery, the legal situation is murky. Advocates argue that correct identification on documents prevents bullying and violence and protects civil rights. Most state legislatures, though, are far from this viewpoint.
To further complicate matters, the laws of the state in which the birth certificate was issued may apply, regardless of your current state of residence.
A lawsuit filed in May of this year with the Eastern District of Pennsylvania by two anonymous transgender plaintiffs may have significant impact on the birth certificate situation. The suit, which names the Department of Health and Director of Vital Statistics as Defendants, alleges that gender dysphohria, a psychiatric diagnosis in the DSM-5, should be considered a disability under the Americans with Disabilities Act. The ADA, a federal law passed in 1990, explicitly excludes transsexualism and gender identity disorders not resulting from physical impairments as disabilities.
The complaint argues that gender dysphoria should be considered a disability in spite of the ADA exclusions, because it causes emotional and mental distress and impacts life activities including socializing, reproduction and social and occupational functioning. It also claims that denying gender change on birth certificates without proof of reassignment surgery is discriminatory given the obstacles to and cost of surgery.
This is a case worth watching. Should the suit be successful, others may follow in other states. Until then, transgender people in Pennsylvania cannot change their birth certificates without a surgeon’s letter.