The firestorm of bathroom laws, otherwise known as anti-transgender laws, rests on one thing: birth certificates.
Very few people realize the ramifications, consequences and freedoms that come with a birth certificate. Let’s say for a minute that you are a transgender person. You’ve seen a doctor and received hormone-replacement therapy, opting out of gender-reassignment surgery for personal reasons or perhaps, like many transgender people, you cannot afford medical treatment nor can you access it. Regardless, you want your legal documentation to reflect who you are.
Perhaps you hire a lawyer to help you navigate the arduous and antiquated laws of legally changing your name or seek out the assistance of a local nonprofit like Mazzoni Center. You get an affidavit from your doctor that confirms your hormone-replacement therapy, in order to change your records with the U.S. State Department. And yet, when it comes time to update the ultimate form of identification, your birth certificate, you are unequivocally unable to do so without undergoing gender-reassignment surgery.
The birth certificate is where all forms of identification originate and it is considered to be the gold standard of documentation. Without one, it becomes next to impossible to obtain a driver’s license, passport or state-issued identification card. If you are transgender, things quickly become tricky. Additional steps are necessary to prove that you are whom you say you are, and with a variety of requirements to update the different documentation, many transgender people are left in a difficult situation where their various forms of identification do not match up.
Birth-certificate laws are particularly unique because the laws of the state you were born in follow you regardless of the state you may be living in when you wish to change your birth-certificate gender marker. For example, if you were born in Pennsylvania but now live in Washington, D.C., whose laws there are much more favorable to transgender people, you are still bound by Pennsylvania’s birth-certificate laws.
In 2013, New Jersey tried to pass a bill requiring the issuance of amended birth certificates to transgender individuals who have received hormone-replacement therapy as opposed to only those who have undergone gender-reassignment surgery, allowing thousands of citizens the ability to correct their birth certificate for the first time. This would have put New Jersey’s process on par with many other states and that of the federal government’s U.S. State Department, Department of Veterans Affairs and Social Security Administration. The bill also included language that would allow minors to have their birth certificates amended with the consent of their parent or guardian, a huge step towards protecting transgender youth from potential bullying and harassment. The legislation was sent to Gov. Chris Christie to be signed into law twice, once in 2013 and again recently last year, and he vetoed it both times.
A small but growing number of states, along with Washington, D.C., reissue birth certificates without requiring proof of gender-reassignment surgery. A handful of states, like Tennessee, Idaho, Kansas and Ohio, will not adjust birth certificates for transgender people even if they have had gender-reassignment surgery.
In Pennsylvania, we won’t get favorable legislation, so we’re fighting for that right. Recently, a lawsuit was filed in the Eastern District of Pennsylvania that could have significant implications not just for the “bathroom bills” but for transgender rights nationwide. The suit was filed on behalf of two anonymous transgender plaintiffs, “John Doe” and “Jane Doe,” who demand that the Pennsylvania Division of Vital Records allow them to receive new birth certificates without having to undergo gender-reassignment surgery. The lawsuit alleges that gender dysphoria, a psychiatric diagnosis in the DSM-5 that many transgender people receive, should be considered a “disability” under the Americans with Disabilities Act (ADA) and that, therefore, requiring surgery before issuing a new birth certificate is a violation of the Equal Protection Clause.
Using the ADA as the legal basis for its case is new and inventive and, in my opinion, has substance. The ADA, passed in 1990, explicitly excludes “transsexualism” and “gender identity disorders not resulting from physical impairments” from being treated as disabilities. The ADA currently defines “disability” broadly as a “physical or mental impairment that substantially limits one or more of the major life activities of [an] individual.” Virtually every major medical professional association has issued statements supporting transgender health care and those statements are being used in a wide array of cases as it relates to the ADA. A case still pending explicitly challenges the constitutionality of the ADA’s transgender exclusions after a transgender person was not accommodated by her employer and then essentially fired for being transgender.
At the core of the Pennsylvania birth-certificate case is the argument that gender dysphoria should qualify as a disability in spite of the stated exclusions in the ADA and that, because gender dysphoria causes “emotional and mental distress” and impacts life activities such as “interacting with others, reproducing and social and occupational functioning,” it can be considered a disability. The lawsuit goes on to claim that denying birth-certificate gender changes to transgender people who have not had gender-reassignment surgery would be unlawful discrimination against a subgroup, especially in light of the many obstacles to obtaining the surgery.
Litigation like this should be repeated in all states so that transgender citizens have the ability to amend their birth certificate. It may seem like a novel concept, but transgender individuals and youth should be allowed the same protections and freedoms allowed all citizens.
Angela D. Giampolo, principal of Giampolo Law Group, maintains offices in New Jersey and Pennsylvania and specializes in LGBT law, family law, business law, real-estate law and civil rights. Her website is www.giampololaw.com, and she maintains a blog at www.phillygaylawyer.com. Reach out to Angela with your legal questions at 215-645-2415 or [email protected].