Our clients –Victoria Kirk, Karissa Rothkopf and Riley Johnson –were all denied the opportunity to correct the gender on their Illinois birth certificate issued by the Department of Vital Records to match who they are. In 2009, we filed suit seeking to correct this wrong.
Back in 1961, Illinois started allowing transgender persons to change the gender marker on their birth certificate after undergoing gender-affirming surgery. While this surgical requirement was itself an unnecessary burden, the Department of Vital Records imposed additional, burdensome requirements not found in the law, requiring that the surgeon who performed gender confirmation surgery be licensed to practice medicine in the United States and that transgender men undergo a specific type of procedure that was unwanted by, and unnecessary medically for, a significant number of Illinoisans. Two of our clients chose a surgeon based in Thailand because they believed that physician would be best able to meet their medical needs. The third underwent a medically appropriate gender-confirmation procedure that the Department rejected as insufficient.
Because we filed this suit, all three clients received corrected birth certificates and the Department stopped imposing these burdens on transgender Illinoisans who were seeking accurate birth certificates. And, in 2017, Illinois changed its statute to allow a birth certificate to be corrected without requiring surgery or any other specific medical treatment.
Following the resolution of the case for our clients, the ACLU filed a petition seeking legal fees under the Illinois Civil Rights Act of 2003, since our lawsuit served as the reason why our clients received accurate birth certificates and for a policy change that would assist others. A trial court rejected the fee request, arguing that the ACLU of Illinois and our cooperating counsel were providing representation for free and didn’t incur any fees. This ruling ignored the plain language of the Civil Rights Act of 2003 and one of the central purposes of that law.
In May 2020, an appellate court reversed the decision and ordered fees for the services provided by the ACLU and our partners. This ruling was a critical result for public interest organizations across Illinois, who rely on the fee-shifting procedure contained in the Civil Rights Act in order to represent those who otherwise would not be able to vindicate violations of that law and the Illinois Constitution by government agencies.