October 23, 2012 8:00 am

Court asked to approve new policy for issuing corrected Illinois birth certificates for transgender individuals

CHICAGO – Three transgender individuals will ask Cook County Judge Michael Hyman today to approve a consent decree in a class action case designed to ensure that transgender individuals can receive new birth certificates that reflect their correct gender from the Illinois Department of Public Health. Today’s “fairness” hearing is the latest step in a lawsuit filed in May 2011 on behalf of three individuals who wished to change the gender on their Illinois birth certificates without being required to undergo genital surgery the State previously has demanded.

“The agreement before the court today will ensure that the State of Illinois gets out of the business of compelling transgender Illinoisans to undergo unnecessary genital surgery that is not recommended by someone’s physician,” said John Knight, director of the LGBT Rights Project for the American Civil Liberties Union of Illinois. “It is critical that our clients and others are able to get birth certificates that accurately reflect who they are without being required to undergo costly surgery that they may not want or need. The State never should have involved itself in these private decisions about medical care.”

ACLU of Illinois Plaintiff Lauren Grey

The parties reached agreement presented to Judge Hyman today in July.

“The response to the agreement has been overwhelmingly positive,” added Knight. “We have heard from transgender persons from around the country – born in Illinois – who are gratified at the opportunity to get a correct birth certificate from Illinois officials.”

If the judge grants final approval to the agreement, the Department of Public Health will 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 also 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 has permitted individuals who have gender confirmation surgery to change the gender marker on their birth certificate. However, several years ago, the Department of Vital Records began interpreting the law to require genital surgery 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.

Lawyers on the case include Knight and 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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