Changing Birth Certificate Gender Varies State to State

Only Ohio, Tennessee and Idaho prohibit switch

[WASHINGTON, DC] - A female-to-male transgender resident of Virginia recently won the right to obtain a revised birth certificate that reflects his new gender after state health officials initially rejected the man's request, and his tale is not unusual one for transgendered American, who face a sometimes confusing patchwork of state laws on the subject.

Lawyers at the Lambda Legal Defense & Education Fund's southern regional office in Atlanta threatened to sue officials in the Virginia Department of Health's Division of Vital Records on behalf of the unidentified man, who began his quest for a new birth certificate late last year.

"We were disappointed because here was someone who had followed the rules and qualified for the revised certificate," said Gregory Nevins, a Lambda Legal lawyer in Atlanta. "Procedurally, we had problems with their not honoring a court decree or recognizing that he did meet the standards set out in the statute and regulations."

Virginia law states that the state registrar can amend a person's birth certificate to reflect a change in gender "upon receipt of a certified copy of an order of a court of competent jurisdiction indicating that the sex of an individual has been changed by medical procedure."

State officials in Attorney General Jerry W. Kilgore's office confirmed their legal position on this matter, Nevins said, but also told him they would consider related evidence. It took about one month for both sides to reach an agreement.

"Any decision whether or not to grant a change of that kind is up to the state registrar," said Tim Murtaugh, a spokesperson for Kilgore's office. "The attorney general office's position is that the letter of the law must be followed."

Murtaugh said the reason the birth certificate change for the transgender man was not initially granted was that all of the necessary medical information was not brought to the state registrar's office.

Trina Lee, a spokesperson for the Virginia Health Department, said that agency could not comment on an individual case.

Nevins at Lambda Legal said Virginia officials told the transgender man that because he had not undergone a phalloplasty, an often-unsuccessful genital-reconstruction procedure to create a penis, he did not meet the state's legal requirement for changing his gender "by medical procedure."

As part of gender-reassignment surgery to transition from female to male, however, Lambda Legal officials said their client underwent a hysterectomy, a double mastectomy, and hormone therapy. The man also had requested and been granted a court order from a judge mandating that his birth certificate be changed to reflect his new gender.

Lambda Legal officials said Virginia law does not specify that a person must receive a phalloplasty to complete a gender reassignment, only that he undergo medical procedures.

"The attorney general's office did the responsible thing," Nevins said. "They abided by what they promised to, which was to evaluate the information we presented. Eventually, they came around to our position."

Hodgepodge of state laws

How such cases are handled varies based on a hodgepodge of laws and regulations that 47 states have implemented. The only U.S. states that refuse to amend birth certificates to change gender designations are Ohio, Tennessee and Idaho.

In Pennsylvania last month, the Associated Press reported that a judge told truck driver Daniel Gryphon MacNeal, who underwent gender-reassignment surgery last year, that the court would need to see blood test results before granting the man's request to change the sex listed on his birth certificate.

"Gender is based on the number of matched genes and chromosomes. Sex organs are secondary," said Bedford County Judge Thomas Ling. "I would have to be presented with a blood test showing the gender."

MacNeal and his attorney, Frederick Gieg, vowed to go to the Pennsylvania legislature to seek a law that would allow judges to make such changes on birth certificates.

MacNeal said he hopes to get married to a woman some day but cannot if his birth certificate still denotes his gender as female. He also noted the frustration caused when people notice that his driver's license says he is female but he looks like a male. He began hormone therapy 12 years ago and has a beard.

The Center for Lesbian & Gay Civil Rights in Philadelphia said MacNeal was seeking the change in the wrong venue.

"The court doesn't have the power to change the gender, but it can be done through the Pennsylvania Department of Vital Statistics," said Tiffany Palmer, legal director at the center. "Right now, it's addressed administratively rather than by law."

State of birth decides

Birth certificate amendments must be obtained from the state in which the person was born and often require a court order, Lambda Legal officials said. They suggested that transgender people who want to change their birth certificate contact their local health department or office of vital records.

How the amended certificate looks also can vary, Lambda Legal officials said. While some agencies will issue a new birth certificate, others will only modify the current certificate, and sometimes noticeably.

When transgender residents of one state move to another state, they can face another set of challenges because state laws and regulations addressing this issue vary.

Gwyneth Morgan, a transgender activist in Washington, D.C., said that if a transgender woman from California applied for a marriage license in Ohio, officials there could ignore her new birth certificate even though it denotes that she is a female.

"So my right of marriage is at risk, along with my right to privacy and my fundamental civil rights," she said.

Morgan, a California native, has a driver's license that reflects her gender as female. But because she has not undergone genital-reconstruction surgery, her birth certificate states that she is male.