Policy Brief: Birth Certificate Gender Markers

A birth certificate is an important document used to prove one’s identity and citizenship. For those who can afford one, a passport can serve the same purposes. However, the ability to change one’s sex designation on birth certificates remains an important issue for many transgender people. As lawyers at Lambda Legal point out, states have varying procedures for updating these documents, and a few actually prohibit changing the gender marker on birth certificates. Many states model their policies for amending birth certificates on the Model Vital Statistics Act and Regulations (or Model Law). Currently being revised, the Model Law is developed by consultation between the state and federal governments and was last updated in 1992. The Model Law is intended to be a guide for states, so that states can model their own vital statistics laws and regulations after its suggestions.

What’s wrong with these laws? The 1992 Model Law says that a person wanting to change their sex on their birth certificate should present a court order certifying that their sex “has been changed by surgical procedure.” There are three problems with this approach, which many states still use. First, the requirement of a court order can create a barrier to those transgender people who don’t have enough money to hire a lawyer or who don’t have enough knowledge to navigate the legal system on their own. Also, some courts are hesitant to issue orders amending birth certificates that were issued by another state, creating problems for transgender people who want to change their birth certificate after they move away from the state where they were born. Second, the Model Law’s requirement of “a surgical procedure” in every case is at odds with the medical community. The World Professional Association for Transgender Health (WPATH) recognizes that different patients will have different medical needs. Surgical treatments may be necessary and appropriate for some transgender individuals, but not for others. The Model Law’ ignores the differing needs of transgender communities. Third, the Model Law does not say what the new birth certificate should look like after the proper documentation is submitted. Ideally, the state would create a new birth certificate that reflects the amended gender, and some states do this. However, other states simply change the existing birth certificate, issuing one that shows the previous gender, while others designate on the new birth certificate that the gender has been changed. These approaches out transgender people whenever birth certificates are used to verify their identity. NCTE’s Proposal: An updated version of the Model Law is currently being developed by a group of state officials coordinated by the National Center for Health Statistics (a part of the CDC). NCTE and allies have been advocating with NCHS to change this outdated and restrictive policy about amending birth certificate sex designation. Specifically, NCTE has suggested that NCHS make three changes in its revisions of the Model Law based on approaches developed by some states and federal agencies.

• The revised Model Law should allow people to change the sex designation on their birth certificate by submitting the required documentation directly to the vital statistics agency, rather than requiring a court proceeding. This will eliminate the unnecessary costs and other obstacles sometimes associated with going through the state court systems.

• The revised Model Law should not require proof of specific medical procedures in order to amend birth certificates. Instead, the Model Law should reflect contemporary standards of care, and require only that an individual’s physician certify that the individual has completed the treatment the physician deems necessary to achieve gender transition. This change would recognize that different people have different medical needs, and avoid disclosure of any confidential medical information.

• The revised Model Law should make clear that a new birth certificate should be issued after an individual presents the proper documentation, rather than a birth certificate that shows the original gender designation or states that the gender has been changed.

These recommendations reflect a growing trend in state and federal policies. The Department of State modernized its policy on passports in 2009, and the policy for “Consular Reports of Birth Abroad,” which are federal birth certificates for U.S. citizens born outside of the U.S., also no longer requires proof of surgery. Recent legislation in Vermont adopted the same approach for that state’s birth certificates, and a similar bill is being considered in California. NCTE will continue to advocate for these changes in the new Model Law, and support the work of activists at the state level. Ensuring that transgender people are able to change their identity documents to reflect their gender identity is a major priority for NCTE.