Know Your Rights

FAQ About Identity Documents

Q: Do I need sex-reassignment surgery (SRS) to change the gender marker on my ID?

A: Many agencies responsible for changing documents such as birth certificates or drivers licenses do still require proof of SRS, but there is a trend toward recognizing that this requirement is burdensome and creates an unfair barrier for most transgender people.

On June 9, 2010, the U.S. State Department stopped requiring proof of SRS 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, three other federal agencies have followed suit with parallel changes: The Office of Personnel Management (OPM)—which controls human resources for the entire federal government—the Veterans Health Administration (VHA) and the U.S. Citizenship and Immigration Services (USCIS).

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Q: How do I change the gender on my driver’s license?

A: These rules are different 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 drivers’ licenses. One concrete and increasingly accepted way to simplify gender marker changes on driver’s licenses is to fill out standardized forms instead of having legal or medical approvals submitted by letter. At the Washington, D.C. Department of Motor Vehicles, the applicant fills out the top half and the health or social service professional fills out the bottom. Providing forms helps applicants avoid the subjective determination of specific clerks who may not know the legal specifics or may have prejudices of their own.

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Q: Do I have to go to court to get my gender changed on my ID?

A: 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 pay court fees, but 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.

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Q: How do I change the gender on my birth certificate?

A: 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 cost-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 SRS. California, Vermont and Washington 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. Some other states prohibit it through either court decision or agency practice.

To find out about the law where you live, check out Lambda Legal’s “Sources of Authority” list at www.lambdalegal.org/publications/sources-of- authority-to-amend.

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Q: What about changing my name on ID documents—is it even important to do this?

A: 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 an individual’s transition, a concrete signpost that you’re beginning to live in accordance with your gender identity. Opting not to change your name also puts some people at risk of violence because it reveals that they are transgender when they show ID. Having more than one name can also raise suspicions among employers, landlords or police officers (see the sidebar below about Social Security numbers and gender-matching).

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Q: How do I change my name officially?

A: 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. A fee is generally involved, and some courts require that a lawyer represent you.

Some states 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 a person’s 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, “[t]here 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 pro bono 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).

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Q: What about changing my name and gender marker on my school records?

A: Schools should accommodate transgender students by allowing them to use their preferred name whether or not they have had a legal name change. Some schools use a two-tiered system, keeping the student’s legal name in their computer system but the student’s preferred name in classroom documents in order to make sure the students’ transgender status is not revealed, putting them at greater risk of bullying. Another option is for schools to simply make a note of the student’s gender identity so that teachers and classmates are respectful.

The school bullying statistics are frightening: 78% of the 6,450 TGNC respondents to the 2011 National Transgender Discrimination Survey (NTDS) who had expressed a TGNC identity while in grades K-12 reported being harassed; 35% were attacked and 12% sexually assaulted. Instituting a clear school policy helps ensure TGNC students are respected and have equal access to education.

For more information on TGNC school issues, see Know Your Rights: LGBTQ Teens and Young Adults, as well as GLSEN’s Model District Policy for TGNC students at www.glsen.org/modeltranspolicy.

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Q: How does the situation for changing gender on IDs compare in other countries?

It ranges. A 1972 Swedish law requiring sterilization (and divorce) for anyone hoping to update gender on an ID remains on the books there despite widespread opposition in Sweden and beyond. The situation has won the attention of international human rights organizations, who also object to the fact that more than 15 European countries and many U.S. states require proof of SRS if you want your papers changed.

It’s quite a jump from there to Argentina’s new transgender bill of rights, the most progressive in the world. The law, passed in May 2012, allows people to change their gender on official documents without approval from a judge or doctor. It also provides government funding for transition-related health care such as hormone therapy and SRS.

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YOUR SOCIAL SECURITY NUMBER MAY REVEAL YOUR TRANSGENDER STATUS

One federal agency that advocates are asking to get 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 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 which Lambda Legal and eight advocacy groups wrote to the SSA to urge it to change its policies, visit www.lambdalegal.org/in-court/legal-docs/ltr_ssa_20120517_transgender-policies.

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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, call our Help Desk toll-free at 866-542-8336 or go to www.lambdalegal.org/help.