Friday, January 30, 2009

Illinois refusing to recognize gender transitions

Not all of them - but a lot of them. Like most states (but not all - no thanks to you, Ohio, Idaho and Tennessee), Illinois has a law that entitles individuals to an amended birth certificate following gender confirmation surgery. I have argued elsewhere that this surgical requirement is unnecessary and unjust, because it imposes serious hardships on a large number of otherwise eligible individuals. However, requiring proof of surgery is presently the law in most places (with the United Kingdom and Spain being notable exceptions).

Well, the folks at the Illinois Department of Vital Statistics have found a way to deny birth certificates to even more people. Contrary to decades of prior practice, they've decided that you can only get an amended certificate if your surgery was performed in the United States. Two Illinois women, represented by the ACLU, are suing to change that policy.

See, due to the immense cost and other practical reasons, a very large proportion of Americans go abroad for gender confirmation surgery, with the largest number of them going to Thailand. By denying new certificates to folks in their situation, the Department can take the already limited number of transgender people who qualify under the state law and cut it about it half. The plaintiffs in the lawsuit, Victoria Kirk and Karissa Rothkopf, had their procedures performed and certified by a well-known Thai surgeon. Their legal arguments are threefold:
  1. The Department is twisting the statute, which refers to physicians licensed in Illinois or "any other state." "State" is often used to include foreign nations, and this is how the law has been interpreted for decades. This makes perfect sense, since Illinois's law is the oldest in the nation, and when it was adopted in the 1950s, these procedures were not available in the United States.
  2. The Department is drawing an arbitrary line between applicants treated inside and outside the U.S., thereby violating the Equal Protection Clause. The Department simply has no rational reason for discriminating in this way. Moreover, once an individual has surgery abroad, it's not as though they can do it again in the U.S. - they are stuck, for life, with the wrong identification because their physician was in the wrong country.
  3. By essentially dictating where individuals may have their procedures performed, the Department is impermissibly interfering with individuals' right to private medical decision-making.
All these arguments strike me as relatively strong ones, particularly given the long-standing prior practice of the state, which sharply undermines any contention that the current policy is necessary. Notably, the suit does not assert a constitutional right to legal recognition of gender change per se. Such a claim is not necessary to challenge this discriminatory policy, and - although there are very strong arguments to support such a right - it will have to wait for another day and a better vehicle than this one.

Best of luck to Ms. Kirk and Ms. Rothkopf, and kudos to the Illinois ACLU.


Corey Alexander said...

One of the many reasons I have not done the changing birth certificate (cuz I was actually born in the state of Illinois), is because I was not up for the argument that the hysto and oo were sufficient to meet their definition of SRS. I am not particularly attached to changing the gender on ID etc., for other reasons, but it seemed like a potential set of awful red tape that was not worth the energy it would require. I cannot imagine how enraging it would be to be denied for such a stupid awful reason as having surgery outside the U.S.

Anonymous said...

Thank you for the kind words.

Kari Rothkopf