Legal Gender

[Nigella]

I am trying to understand what, in the rest of the world, constitutes your legal gender.

Within the UK we have various documents that carry a gender marker in some form or another, however, the only document that is officially recognised in a legal sense to clearly identify gender is your BIRTH CERTIFICATE. From the moment your birth is registered and the gender designation is made on that document, for all intents and purposes you are recognised as "Male" or "Female" according to that piece of paper.

To have that document changed requires a legal process, i.e. a court order (in the case of incorrect original registration, intersexed or hermaphrodites) or a Gender Recognition Certificate ( in the case of Transexuals)

So for the rest of the world, what document would be used to say you are unequivocally "Male" or "Female" . What then is the process you would need to follow to have that "official" designation changed?

[Kate T]

It is my understanding that in Australia it is also Birth Certificate overrides anything else. Recently though our High Court ruled that a birth certificate could be modified to indicate gender as unspecified

[Nigella]

Adina, that is a good step in the right direction, one issue that does spring to mind with "unspecified" is if imprisoned, which one would the authorities send you to? Do you know what process is required to have the birth certificate altered in the case of "incorrect" gender?

[Marcelle]

Hi Nigella,

In Canada it is my understanding the birth certificate is the Holy Grail of legal gender especially if you want to change your passport to reflect the new gender. However, we have the added fun of Provincial legislation where some birth certificates can be changed with minimal angst or others like my birth Province they they have a one year residency clause (i.e., I would have to move back and live in Quebec) to effect any change. However, being a resident of Ontario, I can have my driver's licence changed to reflect "female" without having my birth certificate changed. I am currently undergoing the process of having my gender changed in the military and within the next few weeks my documentation will read "female" and my identify card will have a "F" vice "M". Now my name will still read Marcel vice Marcelle until I effect a legal name change. Very confusing and still wading through the red tape craziness.

Cheers

Isha

[becky77]

Also from the UK, we can get a female passport and female Drivers license, pretty much all ID.
But when it comes down to serious stuff eg Prison, that's when you truly know your legal status.
As Nigella said, you need a gender certificate for that.

[stefan37]

Although the birth certificate is the ultimate gender marker in the US. It is largely irrelevant. The drivers license is the predominant form of identification. Driver license laws vary by state. With the proper documentation from a licensed doctor you can get a US passport in your target gender. While possessing a birth certificate with your birth gender. I can't remember the last time I needed to provide my birth certificate for Id.

[Nigella]

Stefan has just highlighted one of the things that does confuse the issue :) When we are asked for ID, we usually produce some form of document that shows a picture, a description, a gender marker, or any other combination of information, be it a Driving Licence, Passport etc, however, do they actually define your "legal" gender, using the scenario I offered Adina, would your driving licence or passpost define your gender if you were to be imprisoned?

I have yet to meet anyone who produces a birth certificate as a form of ID, it is normally requested to assist in the production of another document i.e passport. Remember please this thread is not about Identity, but Legal Gender and how it is recognised.

[stefan37]

Regarding incarceration I have no idea what form of identification they would use. In NJ we can get a new birth certificate with a surgical procedure such as an orchi. All our Id would be female including birth certificate, but the individual that had an orchi would still have a penis. If I were in an accident or other such incident or in the news. All the id's I carry say female. Including my driver's license and passport card.

I believe Tennessee doesn't allow any changes to the birth certificate even with the completion of surgical procedures. Maryland just passed a law that allows the birth certificate change with a doctor letter similar to the Dr license or passport. NJ 'S wonderful governor vetoed such legislation for largely unfounded reasons.

I consider my legal gender female regardless of my BC. All my legal id's are female. DL, Passport, all my professional licenses, health insurance, etc.

I can only state what the laws are in NJ other than the passport rules to change gender. Which is relatively easy with a doctor's letter in the proper format. With the Dr license and passport. I consider the state of NJ and the US govt to recognize my legal gender is female

[PretzelGirl]

That is where the problems lie in the US at least. A person may be carrying a driver's license, an ID for those that aren't licensed, or maybe a passport (far less likely). If you are enrolling somewhere or performing some function that requires identifying yourself in name and/or gender, presenting any of these usually suffices. As Stephanie says, birth certificates are rarely needed as an adult (I believe I used it going into the military).

So what do they do when someone goes to jail? I talk with a friend who is transitioned and she is a county jail guard. Commonly, they look at the ID and then you during a search. Those that are getting educated will now allow self declaration. The improvement beyond that is how we are housed based on that declaration, which is another topic.

Because of the power that resides in the states rather than the country, we obviously have a lot of variability in each item because of differing laws. The passport is the federal item, so that is consistent among all of us. A doctor's letter is what is needed. Then licenses and birth certificates are state jurisdictions and it will take a long time to start getting the laws to be similar. Licenses and IDs may only require a passport or letter, if they let you change it (not certain of all 50 states). Birth certificates are more harrowing. Progressive ones only need letters and others require some level of surgery. Then you might end up with an amended certificate instead of a clean copy. I could quote the Utah realities, but then we could have 50 different posts showing how out of sync we are.

[Nigella]

Wow, how confusing it must be on the west side of the pond. Federal, State, does your laws go to any other levels below this? Birth Certificates, Passports and Driving Licences are all standard within the UK, issued by the State (your Federal), but we do have local laws (your State), but AFAIK, there is no document issued at this level that is recognised UK wide.

It does appear that within the US, based on the few posts so far, that there is no definitive document that determines a "legal" gender like there is in the UK.

[PretzelGirl]

I agree Nigella. If I can get my passport updated with a physician's letter and then use it to update my license, then that rendered my (not updated) birth certificate as not being the definitive declaration. I could go the rest of my life without pulling my birth certificate out.

[Marcelle]

Within Canada, the change of your gender on your passport normally requires a birth certificate stating your lived (legal) gender. However if your birth certificate does not reflect your lived gender, but you have undergone sex reassignment surgery, you can submit medical documentation that confirms you have had this surgery. So in line with that depending on which Provincial jurisdiction (akin the US States), you can change the gender on your birth certificate from which flows your legal (lived) gender with which you can effect changes to core identify documents such as your passport. However, if you just wish to change specific identity documents such as your driver's licence, then that is also effected at the Provincial level and depending the regulations you only need documentation from a psychologist with respect to your gender identity to make that change much like the birth certificate in some Provinces.

When it comes to incarceration it again depends on whether it is a Provincial correctional facility or a Federal correctional facility. Ontario allows for self-identification for inmate housing purposes while other provinces do not . . . the federal system is still trying to play catch-up.

[Frances]

You can't say "in Canada" in Canada. Provinces do their own thing. Also, new laws were voted a couple of years ago in Quebec that may finally be put into effect soon. When I legally transitioned, I had to show sworn statements from two surgeons that my genitals had been refashioned irreversibly. The governement issued a certificate, which allowed me to change my birth certificate. All other documents could then be changed easily, but sometimes at a cost.

Surgery may no longer be required soon to get the birth certificate changed. They are trans people that are lobying for and against this change.

[Nigella]

I re-iterate, this is not about Identification, it is about Gender and how it is "legally" recognised, please refrain from discussing Identification and what documents you use or are accepted, I am only interested in how each country recognises Gender, not identification.

[I Am Paula]

In Ontario Canada, along with a letter from a Dr. or therapist saying you are undergoing transition (no surgery, or even hormones required) and identify as man/woman, we just send a nice letter to the birth certificate office stating that many years ago they had made a mistake,by indentifying your gender by looking at your genitals, and would you please correct that. They send you a new birth certificate (but no apology) with you corrected gender. Very civilized indeed.

[Frances]

Your last post is very confusing, Nigella. Only sex can be legally recognized. I thought you were conflating the two in a vernacular way. Your birth certificate recognizes your legal sex, whether surgery has occured or not in some jurisdictions. How can you ask to refrain from talking about documents when you asking about legal differenciation?

"Gender" is legally recognized as a corollary of legal sexual recognition through amended legal documents. There is no legal recognition of Gender on its own. It is perceived by others.

[LeaP]

As far as I know, there is no differentiation made between gender and sex in any legal context in the United States. This is one of the things that leads to surgery requirements in order to change certain documents.

"Legal" always has a context. A state judge may order a name and gender marker (sex) change, for example, but it may or may not be binding at the federal level. And while federal law overrules state and local law, most legally recognized identity documentation is issued at the state level and under the rules of the jurisdiction.

[Nigella]

Are not the two the same? They have become interchangeble, by definition, they are not and I stand corrected.

To avoid confusion and to recognise the fact that we as a group identify as TranSEXUAL, I will rephrase my orignal question :)

What document in your part of the world is the Legal recognition of your Sex? Is it, as Frances, has pointed out, your Birth Certificate, as it is in the UK, or is there another document your particular country?

[Angela Campbell]

For the most part here in the US it is the almighty driver's license. However for prison they do not ask for any birth certificate, they undress you and look at the genitals.

It's rare to have to provide a birth certificate. I've done it maybe twice in my life before transition.

[Gerrijerry]

The legal id for gender is the birth Certificate. That is in all the states. Next for ID is getting a Driving license which you need to have a Birth Certificate for. next is the passport which needs the Birth certificate again. Some states sometimes accept other ID as proof but 90% is the birth C.

[stefan37]

You might want to research your facts before responding. I didn't need my birth certificate to change my driver's license, apply and receive a US passport. Any of my professional licenses, health insurance. They all have a female gender marker. I still have my birth certificate with male marker. With the proper documentation from your physician you can apply and receive a US passport with a female gender marker supplying a birth certificate with a male marker.

[Lorileah]

, would your driving licence or passpost define your gender if you were to be imprisoned?



yes, in Colorado at least. Birth certificates are OK but there are so many different states that require different things. Colorado will give you a new one on proof of transition (not surgery) Nebraska requires proof of total surgery. Some sates don't change but "amend".

Legally, in Colorado my driver's license trumps anything in regard to gender. If I went to prison (or arrested for DUI) I would be placed with the women

[Foxglove]

Here in Ireland, our Gender Recognition Act just came into force. It allows you to declare which gender you wish to be recognized as for all legal purposes. A very simple application form that has to be witnessed by a lawyer, in which you swear that you intend to live in a given gender for the rest of your life; that you understand the consequences of your decision; and that you're making this decision of your own free will.

And that's it. No need to get certificates from doctors or shrinks, no need even to be on hormones or have surgery, if you don't choose to. You fill in the application form and send it off, and then they send you your "Gender Recognition Certificate", which declares what your legal gender is. Armed with that, you can go to the Registry of Births and have your birth cert amended, and after that all your other documents will fall into line.

Since I myself wasn't born in Ireland, my Gender Recognition Certificate won't help me with my birth cert. But it will help me with other things such as my passport. I've been without one of those for almost three years because my old one became invalid when I changed my name, and I declined to apply for a new one since they wouldn't give me one that's gender-appropriate. I can now get a proper passport and have already sent off my application form for that. Most of the stuff I have is gender neutral. It was merely a question of getting my name changed on such things.

As it stands, the only document I now lack is my birth cert, and it appears I'll just have to die without one of those.

[Angela Campbell]

yes, in Colorado at least. Birth certificates are OK but there are so many different states that require different things. Colorado will give you a new one on proof of transition (not surgery) Nebraska requires proof of total surgery. Some sates don't change but "amend".

Legally, in Colorado my driver's license trumps anything in regard to gender. If I went to prison (or arrested for DUI) I would be placed with the women

not necessarily. In many places you wouldn't. I have read many news stories that are about the treatment of ts placed with the men or in solitary. Especially military prison.
in Colorado maybe, in Georgia, Alabama, Mississippi. ......well

[Lorileah]

old stories. Colorado has protections in place and the feds do too

[PretzelGirl]

Not necessarily in the various states. I know we are pushing education to the city and county jails along with the state pen because transgender individuals will either be placed in the medical facility for their "protection" or complete isolation. The housing for detainment of undocumented transgender individuals was to place them by biology and the results were brutal. At the end of June, ICE came out with a new policy which looks promising and I await hearing how effective it becomes.

[ReineD]

Nigella, you can see that each state in the US has their own laws. Lambda Legal (http://www.lambdalegal.org/about-us/staff), an organization that expands and defends protections for transgender people under federal, state and local laws, have some answers all in one place! :)

To answer your question, they say that most prisons in the US currently house transgender people by the sex assigned at birth (which implies needing a birth certificate change if state prisons consider new birth certificates), or according to genital characteristics, however these practices may be changing to require that prisons make such decisions on a case-by-case basis in order to minimize the risk or mistreatment and rape while in prison. But, not having clear guidelines increases the potential for human bias, if for example a Judge decides that a TS is not feminine enough to go to female prison.

See question 4: How do prisons decide whether to house a transgender prisoner in a male or female facility? (http://www.lambdalegal.org/know-your-rights/transgender/in-prison-faq#Q)

Lambda legal also say that birth certificates are vital records and thus are considered official by government and private agencies alike. As such, they have a higher standard of proof in order to change them than for example driver's licenses or passports. Most states in the US require SRS in order to change the sex designation. For anyone interested, see each state here (I don't know if this web page reflects the most recent changes):

http://www.lambdalegal.org/know-your-rights/transgender/changing-birth-certificate-sex-designations

In summary, 37 of the 50 states require sex change by surgical means in order to amend the sex designation on the birth certificate. 32 of these states will issue a new birth certificate reflecting the new sex, but 5 of these states will indicate that the birth certificate has been amended. These 5 states are Idaho, New Hampshire, Maine, North Dakota, and Utah.

Of the remaining 13 states:


Ohio and Tennessee will not issue a new birth certificate to reflect SRS, but if Lambda legal is correct, a transwoman would be sent to a female prison if it is evident she has female genitalia.


Mississipi is unclear.


Following are the 10 states that issue new birth certificates with the correct sex or gender, without requiring surgery. Of all of them, California and New York are the easiest. They requires a certificate signed by a physician stating that clinically appropriate treatment was given, however no specific treatment needs to be listed. It is up to the physician to determine what is appropriate based on an individual's needs and certify there was treatment given. One TS blog I read suggested it is worded it this way to minimize demands on health insurance companies, the idea being that fewer people will get SRS if it is not a requirement for gender marker change.

This is the wording of the requirements according to each of the 10 states:


California: clinically appropriate treatment.
Connecticut: surgical, hormonal, or other treatment.
DC: surgical, hormonal, or other treatment.
Iowa: surgery or other treatment.
Kansas: physiological or anatomical change.
Minnesota: appropriate clinical treatment.
New York: appropriate clinical treatment.
Oregon: surgical, hormonal, or other treatment (although the wording itself is unclear, it still requires SRS?).
Vermont: surgical, hormonal, or other treatment.
Washington: appropriate clinical treatment.


As mentioned earlier, there may be recent changes not reflected on the Lambda state-by-state requirements web page.