July 30, 2012 9:30 am

Agreement reached on Illinois policy for issuing new birth certificates for transgender individuals

CHICAGO –A proposed court-supervised agreement filed today will help ensure that transgender individuals can receive new birth certificates that reflect their correct gender from the Illinois Department of Public Health.  The agreement, filed today in Cook County Circuit Court, resolves a lawsuit filed in May 2011 on behalf of three individuals who wished to change the gender marker on their Illinois birth certificates after undergoing gender confirmation surgery, but not the genital surgery the State was then demanding.

“This agreement reflects a basic understanding that the government should not be in the business of telling transgender Illinoisans what kind of surgery they need to undergo,” said John Knight, Director of the Lesbian, Gay, Bisexual and Transgender Project at the American Civil Liberties Union of Illinois.  “It creates a new opportunity to obtain an accurate birth certificate for many people – including a number of persons who have been denied new birth certificates over the years who have not undergone genital surgery, because they have no medical need for it, are concerned about its risks, or cannot afford it.”

Today’s filing is the latest development in a case filed in May 2011.  Rather than respond to the ACLU’s complaint initially, the State a year ago proposed a new rule that did not require genital surgery in order to change the gender marker on the birth certificate.  As the rule was being considered by a state legislative committee, the State agreed to issue new, accurate birth certificates to the three named plaintiffs in the case, Lauren Grey, Victor Williams and Nicholas Guarino, who are represented by the ACLU of Illinois. After the rule was adopted, the State moved to dismiss the case, which the court rejected. The ACLU argued that a court-supervised agreement was necessary, since the final rule did not clearly prohibit the Department from resuming the genital-surgery requirement and could be changed at any time in the future.

“Having an accurate birth certificate is critical today,” said Lauren Grey, the lead plaintiff in the case. “The agreement filed today clears the way for many people born in Illinois to get an accurate birth certificate that will make their lives safer and more secure.”

Under the agreement presented for approval on Wednesday, July 25th, the Department of Public Health would be prohibited from denying new Illinois birth certificates to applicants who seek to change the gender marker on them solely because they have not had genital reconstruction surgery. Additionally, the Department will promptly process and reach final decisions on all pending applications for new, accurate birth certificates. The State will provide individual notice to all persons previously denied a change in the gender marker on their Illinois birth certificate since January 2010, along with those persons denied a change of the gender marker going back to 2008 for which the Department has records. Finally, the Illinois Department of Public Health will publish a statement on their website clarifying that genital reconstruction surgery is no longer a requirement for obtaining an accurate Illinois birth certificate.

For almost five decades, Illinois had permitted individuals who have gender confirmation surgery to change the gender marker on their birth certificate. The Department of Vital Records, however, later began interpreting the law to provide this option only if an individual had genital surgery and if that surgery was performed by a United States-licensed physician.  An earlier ACLU case resulted in the State agreeing to drop the requirement regarding the licensure of the physician, recognizing that a growing number of persons selected a surgeon from Europe, South America or Asia.   The problem with the specific surgical requirement remained in place until after this case was filed.

“Accurate identity documents are critical for life in modern times,” added the ACLU’s Knight. “These new birth certificates will accurately reflect who our three clients – and countless others — are, and avoid any potential embarrassment, hostility or harm from being outed to strangers as transgender.  Although our ultimate goal is for the State to get out of the business entirely of dictating medical requirements for transgender persons who are seeking an accurate birth certificate, today’s agreement represents great progress.  It ends an especially restrictive surgical requirement that few were willing or able to fulfill.”

The judge in the case will set a date for a fairness hearing, the final step for the agreement to be approved.

Lawyers on the case include Harvey Grossman of the ACLU of Illinois, James D. Esseks and Knight of the ACLU LGBT Project and Margaret J. Simpson, David M. Kroeger and Kyle A. Palazzolo of Jenner & Block LLP.

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