CHICAGO - In an important reversal of two policies restricting who can obtain accurate birth certificates after sex reassignment surgery, the State of Illinois has issued new, accurate birth certificates to three transgender persons born in Illinois. All three individuals had been denied birth certificates with the correct gender listed on the documents. Two persons were denied because they chose a surgeon who practiced overseas and was not licensed in the United States. The third plaintiff was denied because the Department required surgery that was not medically necessary for him.
A new policy adopted by the Illinois Department of Vital Records now permits many transgender individuals in Illinois and across the nation, to receive a new birth certificate that reflects their accurate gender following sex reassignment surgery overseas. The Department has also announced that it will formulate new standards for determining how much surgery will be required before a transgender person will be provided a birth certificate listing the correct gender marker.
For more than four decades, Illinois permitted individuals who have sex reassignment surgery to change the gender "marker" on an original birth certificate. Earlier this decade, the Department's Division of Vital Records started interpreting the relevant law to provide the option of changing the birth certificate only if an individual had the surgery performed by a United States-licensed physician. This change in policy created an unnecessary and unfair burden for the growing number of persons who select a surgeon from Europe, South America or Asia, including two women on whose behalf the ACLU of Illinois sued in January 2009. In addition, the Department started in about 2004 to require those female-to-male transgender persons who request an accurate birth certificate to complete surgery for which the vast majority of applicants have no medical need, nor a desire to complete.
The ACLU tried for several years to persuade the State to change its practices prior to pursuing relief in court. Since it filed suit, the State finally reversed itself and changed its policy so that those who have sex reassignment surgery abroad can secure a new, accurate birth certificate. Celebrating the change in policy and the positive development for its clients, the ACLU again noted today that the lack of an accurate gender marker on a birth certificate creates unnecessary and dangerous challenges to persons who have undergone sex reassignment surgery, and is antithetical to the advice of medical experts who recommend that persons who undergo sex reassignment ensure that all aspects of their lives reflect their gender identity.
"I am a woman and now I have a birth certificate that reflects this reality," said Victoria Kirk, one of the plaintiffs in the lawsuit who recently received a corrected birth certificate. "To see that the State of Illinois now - officially - recognizes this transition, and that I'll never have to fear embarrassment in those circumstances where I present the birth certificate, is a welcome change. I am pleased to see the State make this policy shift."
The policy shift also recognizes the large number of persons who seek sex reassignment surgery overseas. A decision about which surgeon to use is make for a variety of reasons, including reputation of the surgeon, available follow-up care, surgical techniques and cost of the procedure. For many persons electing to have sex reassignment surgery, a foreign surgeon is the safest and best option.
The Department's announcement that it will revise its policy regarding the surgery required prior to issuing an amended birth certificate to transgender persons is a move in the right direction, since each person's sex reassignment process is different and depends on important personal choices and individualized medical judgment. The old rule conflicted with transgender individuals' fundamental right to make choices about their medical treatment in consultation with their doctors.
The plaintiffs in the lawsuit were represented by lawyers from the American Civil Liberties Union of Illinois, the American Civil Liberties Union National Lesbian, Gay, Bisexual and Transgender Project in New York and pro bono counsel from the Chicago office of Jenner & Block. Because of the shift in policy by the Department of Vital Records, a Cook County Judge is expected to dismiss the ACLU of Illinois lawsuit, after a number of procedural issues are resolved this month.
"We remain committed to the notion that a birth certificate should be accurate and complete," said John Knight, a lawyer who works for the ACLU of Illinois and the ACLU National LGBT Project. "We are pleased that the Division of Vital Records Act has adjusted its policy to ensure that our clients who chose surgeons who practice overseas to have accurate documents and will take a new look at its policy regarding the types of surgery required."
"We will continue to monitor the State's rules for birth certificate gender marker changes and will advocate for a surgery policy that allows transgender persons to seek accurate birth certificates without undergoing medical treatment that they do not want and do not need."