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Sex and the CityNew York City bungles transgender equality.

By Kenji Yoshino
Posted Monday, Dec. 11, 2006, at 2:43 PM ET

Last week, New York City's Board of Health scuttled a proposal that would have given people more freedom to change the sex on their birth certificate. The proposed plan would have been the first in the country to permit individuals to declare a gender without making any anatomical changes. But before it could get off the ground, the plan spawned a furor. In failing to anticipate that backlash, the board did a significant disservice to the transgender community.

Under a New York City Health Code provision enacted in 1971, individuals are entitled to a new birth certificate if they change their names and undergo "convertive surgery"—sex-reassignment surgery. The law entitles people to have their original sex erased, not changed; the "M" does not flip to an "F" in the "Sex" box, it is just deleted. From the perspective of transgender activists, this is not ideal, as it leaves individuals without any gender, rather than recognizing their post-transition status. Nonetheless, when the city enacted the statute, it was a frontrunner in the movement for transgender equality.

Now the city has fallen behind other jurisdictions. Most states currently allow transgender people to get new birth certificates if they have had sex-reassignment surgery. The gender classification on the birth certificates of these states is altered, not erased. Only three states—Idaho, Ohio, and Tennessee—have rules that say no change to a certificate will be made even if the applicant has had surgery.

If it had enacted the new proposal, New York City would have again gone where no jurisdiction has before. Under the plan, an individual who is over 18 can change her sex so long as she 1) has changed her name; 2) has "lived in the acquired gender for at least two years"; and 3) has submitted "two affidavits, demonstrating ... full transition to and intended permanence in ... her acquired gender." One affidavit must come from a physician licensed in the United States who has demonstrated at least "two years experience ... related to transgender treatment." The other must come from a mental-health professional with similar experience.

As a New York Times article observed, the new law sought to reflect a better understanding of the transgender community. Many transgender individuals do not have the funds to undergo sex-reassignment surgery, which has been estimated to cost between $10,000 and $20,000. Other people cannot have surgery for health reasons. Perhaps most importantly, many do not feel they need to have surgery to redefine their gender, which they understand to be more than the sum of their physical parts. As City Health Commissioner Dr. Thomas R. Frieden recognized, "Surgery versus nonsurgery can be arbitrary."

All of which sounds enlightened. But the health department, surprisingly, did not anticipate the wave of practical concerns that surfaced when the plan was publicized. These included the worry that the plan would conflict with rules adopted by New York state, or possible new federal rules, concerning identification documents. Reservations were also voiced by institutions like hospitals, jails, and schools, which routinely segregate according to sex. These concerns led the Board of Health to withdraw the proposal, settling instead for a minor amendment permitting individuals to change, rather than to delete, the sex on their certificate after surgery. "This is something we hadn't thought through, frankly," said Dr. Frieden. "What the birth certificate shows does have implications beyond just what the birth certificate shows."

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Kenji Yoshino is the Guido Calabresi Professor of Law at Yale Law School and author of the recently published Covering: The Hidden Assault on Our Civil Rights.
Illustration by Mark Alan Stamaty.
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