CHICAGO –Despite promises to the contrary, the Division of Vital Records of the Illinois Department of Public Health has failed to fix its practice of refusing to correct the gender on birth certificates of transgender individuals who have had gender confirmation surgery but not the specific forms of surgery demanded by the department. The American Civil Liberties Union and the ACLU of Illinois filed a lawsuit today to allow transgender individuals who have not had gender confirmation surgery to correct the gender marker on their birth certificates.
In order to correct gender markers on birth certificates, the current department policy requires that transgender individuals undergo costly and potentially dangerous surgical procedures without regard for whether a person wants or has any medical need for the surgeries. The surgery is required without an individualized assessment of their medical necessity.
“Illinois long ago recognized the importance for transgender people to have a birth certificate that accurately describes who they are,” said John Knight, Director of the Lesbian, Gay, Bisexual & Transgender Project at the ACLU of Illinois.
“We’ve been telling the department for two years that its arbitrary surgery rules clash with the medical standard of care for transgender people and make it impossible for most transgender people to correct the gender on their birth certificates. We took them at their word when they said they would make an appropriate change, but all we’ve seen is more delay. It’s time that they did something to fix that.”
The ACLU filed the lawsuit on behalf of three individuals who were denied correct gender markers on their birth certificates because they had not undergone the specific procedures required by the department. Denying anyone an accurate birth certificate creates emotional and psychological harm and places them at serious risk of harassment.
“I’ve struggled for too many years to be able to live as a woman only to have a birth certificate that constantly reminds me of the gender I’ve worked so hard to put behind me,” said plaintiff Lauren Grey. “I am who I am.”
Two years ago, citing the need to have an accurate birth certificate for identification purposes, two Illinois women first asked a court to order the state to issue new birth certificates that reflect their appropriate and accurate gender following gender confirmation surgery (sometimes described as sex reassignment surgery.) They also sought an accurate birth certificate for a male transgender client who had not had the surgery the department required. At that time the department gave him an amended birth certificate and asked the court to dismiss the case because the department was going to issue rules they strongly suggested would fix the problem. That has not yet happened.
For almost five decades, Illinois had permitted individuals who have gender confirmation surgery to change the gender marker on an original birth certificate. The Department of Vital Records, however, later began interpreting the law to provide this option only if an individual had the surgery by a United States-licensed physician. The state eventually agreed that this created an unnecessary and unfair burden for the growing number of persons who selected a surgeon from Europe, South America or Asia.
An accurate birth certificate is important not only in those situations where an employer may require a birth certificate to start a new job but also may be necessary now or in the future to secure identification to drive a car, enter a federal building or board an airplane.
In addition to Grey, Victor Williams and Nicholas Guarino are also plaintiffs.
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 and Kyle A. Palazzolo of Jenner & Block LLP.