FAQ About Identity Documents
Many agencies responsible for changing documents such as birth certificates or driver’s licenses do still require proof of surgery, but there is a trend toward recognizing that this requirement is burdensome and creates an unfair barrier for most transgender people.
The American Medical Association (AMA), the nation’s largest physician organization, called in 2014 for “modernizing” birth certificate policies by eliminating surgery requirements.
The U.S. government is gradually falling into line. On June 9, 2010, the State Department stopped requiring proof of surgery for issuing passports and consular birth certificates to transgender people and began asking instead for proof of “appropriate clinical treatment for gender transition to the new gender”—better reflecting the individualized nature of treatment for gender transition. Since then, the Social Security Administration, Department of Homeland Security, Veteran’s Health Administration and Office of Personnel Management have followed suit and no longer require proof of surgery to obtain gender designation changes.
Birth certificates are generally harder to change than other documents; the standard of proof is higher because it’s a so-called vital record, considered “official” by government and private agencies alike.
Many of the 57 state, local and territorial jurisdictions that administer birth certificates require a court order to change or amend them (a costly and time-consuming process of petitioning a judge for an order stating that you are now male or female) and/or a letter from a surgeon certifying gender-affirming surgery. California, the District of Columbia, Iowa, New York City, New York State, Oregon, Vermont and Washington State have removed surgical requirements completely for those applying to change a birth certificate. Tennessee is the only state that has a statute specifically forbidding the correction of gender designations on birth certificates for transgender people. Other states, such as Idaho and Ohio, prohibit it through either court decision or agency practice. A court in Puerto Rico recently ruled that gender markers can under no circumstance be changed on identity documents.
To find out about the law where you live, check out Lambda Legal’s “Changing Birth Certificate Sex Designations: State-By-State Guidelines” list at lambdalegal.org/know-your-rights/transgender/changing-birth-certificate-sex-designations
These rules differ from state to state as well. Departments of Motor Vehicles in about half the states have removed surgical requirements completely for those applying to change their gender marker on their driver’s licenses. One increasingly accepted way to simplify gender marker changes on driver’s licenses is to fill out a standardized form; neither legal nor medical approvals are required. At the Washington, D.C. Department of Motor Vehicles, where this new system is in place, the applicant fills out the top half of the form and the health or social service professional fills out the bottom half. Forms helps applicants avoid the subjective determination of specific clerks who may not know the legal specifics or may have prejudices of their own.
Some states and agencies do require that you obtain a court order to make the change on your documents. This can create an extra and unnecessary hurdle for some people who can’t afford an attorney or to pay court fees, but in fact it can be helpful to have an official judgment in hand if your gender identity is being questioned by someone in a position of authority.
Documenting a name change may be an irrelevant detail for some people—whether transgender or not, you just call yourself what you like and don’t worry about what government records say. But taking on a new name is very often the first step in a person’s transition, a concrete signpost that they are beginning to live in accordance with their gender identity. Opting not to change a name also puts some people at risk of violence because it reveals that they are transgender when they show their ID. Having more than one name can also raise suspicions among employers, landlords or police officers.
You’re usually allowed to change your (first or last) name to anything you like as long as it’s not for purposes of fraud and as long as you give notice. Different states have different requirements. A fee is generally involved, and some courts require that a lawyer represent you.
Some states, like California, allow for common-law name changes—if you live with a new name for a certain period of time, it automatically becomes official without needing to process any documents. Transgender people are generally advised to take advantage of more concrete legal procedures when available, however, because banks and other institutions generally decline to recognize a common-law change.
In any case, transgender people are very commonly thwarted in the routine process of filing papers for a name change when courts ask invasive questions about their gender transition. Lambda Legal submitted an amicus brief in a 2009 case that challenged a New York City civil court judge’s requirement that transgender people show “medical need” for their name changes. In striking down the requirement, an appellate court stated, “there is no sound basis in law or policy” to make transgender petitioners share private medical information just to change their names.
Transgender residents of New York State seeking to change their names can get free legal assistance from the Transgender Legal Defense and Education Fund, Inc.’s Name Change Project. The Project is considered a model relationship between the private bar community and the transgender community. Find out more at transgenderlegal.org/work_show.php?id=7.
The Family Educational Rights and Privacy Act (FERPA) is a federal law that protects the privacy of student educational records and also gives current and former students the right to amend those records to match their legal documents if they are “inaccurate, misleading, or in violation of the student’s rights of privacy.” (For more records information, see “A Transgender Advocate’s Guide To Updating And Amending School Records” at lambdalegal.org/know-your-rights/transgender/ferpa-faq and www2.ed.gov/policy/gen/guid/fpco/faq.html.)
Also see “Transgender College Students,” another fact sheet in this Transgender Rights Toolkit at lambdalegal.org/publications/toolkits, as well as Lambda Legal’s Bending the Mold at lambdalegal.org/publications/bending-the-mold and GLSEN’s Model District Policy for TGNC students at glsen.org/modeltranspolicy.
If you are an undocumented immigrant, you will probably face even more obstacles in securing identity documents with your actual gender identity.
The following states, districts and territories offer driver’s licenses for undocumented immigrants: California, Colorado, Connecticut, District of Columbia, Illinois, Maryland, Nevada, New Mexico, Puerto Rico (after 1 year of residency), Utah and Washington.
Many Latin American countries offer consular identification cards for their citizens in the U.S. However, it is not clear whether you can get a consular identification card or even a passport with your actual gender identity.
YOUR SOCIAL SECURITY NUMBER MAY REVEAL YOUR TRANSGENDER STATUS
One federal agency that is not up to speed on transgender issues is the Social Security Agency (SSA). In this case, the policy that needs updating is not about identification, but about computer systems that disclose transgender status to employers doing background checks on prospective or current employees. It’s called “gender matching” and lots of people have lost jobs over it—if the record of your gender in the Social Security database does not match the gender marker on your work application, the SSA sends your employer a letter notifying them. The SSA has stopped gender matching for private employers, but still performs it for public employers. A coalition of advocates is urging the agency to make its public-employer systems consistent with passport rules and other federal policies. To see the letter that Lambda Legal and eight advocacy groups wrote to the SSA to urge it to change its policies, visit lambdalegal.org/in-court/legal-docs/ltr_ssa_20120517_transgender-policies
FOR MORE INFORMATION: Contact Lambda Legal at 212-809-8585,120 Wall Street, Suite 1900, New York, NY 10005-3919. If you feel you have experienced discrimination, contact our Help Desk at www.lambdalegal.org/help.