Oct 8 2010

If you’ve never experienced a disconnect between the information contained on your ID and who you actually are, it can be hard to grasp just how difficult such a situation can be. Imagine being male and by some fluke your passport, driver’s license or birth certificate was marked with a letter “F,” for female. Try boarding a plane or opening a bank account with such a document. At best, you’d be interrogated about your identity; at worst, you’d be completely turned away.

Imagine applying for work with those documents and filling out Form I-9, an Employment Eligibility Verification. How would your new employer react to the revelation that you might not be exactly the person he or she thought you were? Again, at best you could expect a significant invasion of your privacy; at worst, you’d lose the job.

If you’re transgender, these are some of the everyday realities of living with identification that doesn’t match who you are. At the federal, state and local level, government agencies place tremendous obstacles in the path of transgender people who are simply trying to obtain accurate, up-to-date identification documents.

In many cases, government agencies require that transgender people have certain forms of surgical intervention in order to change the sex designation on their identification. New York City’s requirement that transgender people have “convertive surgery” in order to correct their birth certificates is one such requirement. But the plain fact is that most transgender people just haven’t had these kinds of surgeries. Most can’t afford it because public and private insurance plans often discriminatorily exclude such care. Many others don’t want surgery, and for some, it’s medically ill-advised due to other health conditions. Government requirements notwithstanding, transitioning is not a one-size-fits-all process, and the surgery requirement that government agencies impose bears no relationship to the lived experience of most transgender people. Nor does it bear any rational relationship to any government interest. It serves to do one thing only: deny transgender people the identification documents they need to avoid marginalization and to lead full, productive and equal lives.

We’ve fought this issue in New York before and we’re going to continue to fight it. In 2006, we worked with the New York City Department of Health and other advocates to come up with updated policies and procedures for changing the sex designation on birth certificates for transgender people. In October 2006, the Board of Health actually proposed an amendment to the Health Code that would have removed the code’s “convertive surgery” requirement. But in the end the Board of Health turned lily-livered.

While the Health Commissioner recognized that corrected birth certificates would “make it easier for transgender people to live, work and travel,” the Board nevertheless claimed that the proposal would have “broader societal ramifications than anticipated.”. The Board also cited then-“forthcoming” federal regulations that it believed would impact its ability to amend City law to ease the requirements for amending birth certificates.

When those federal regulations did come out in 2008, they established that the feds would not dictate local policies, leaving the City free to make its own policy. But rather than the City taking the lead, we’ve seen the federal government leapfrog ahead on this issue, introducing new policy guidelines  on changing the sex marker on passports. As of June 10, 2010, when passport applicants present a doctor’s certification that they have undergone “appropriate clinical treatment,” their passports will be updated to accurately reflect their sex. Sex reassignment surgery is no longer required to change the sex designation on a U.S. passport. Whatever concerns New York City officials feared might result from transgender people having accurate identification documents have been rendered moot by the federal government’s own action in allowing federal documents to be amended without requiring surgery.

Far from being a historical document filed away somewhere, birth certificates and other identity documents must be produced in many situations. Getting through life with inaccurate or inconsistent identity documents is a bureaucratic nightmare with far-reaching consequences. Without IDs that accurately reflect who they are, transgender people are simply unable to live, work and participate fully in society.

That’s a situation that has to change and over the coming months, we’ll be doing all we can to see that happens. If New York City truly wants to ensure that transgender people are not discriminated against in the areas of employment, housing, and public accommodations as the law requires, it needs to follow the federal government’s lead, instead of coming up with excuses to avoid doing so. The transgender community’s ability to live freely and equally depends upon it.

Michael Silverman is the Executive Director of the Transgender Legal Defense and Education Fund in New York.