A birth certificate is a vital record used to prove such things as date of birth, citizenship and parentage in a range of circumstances, from obtaining work permits to school registration to receiving insurance benefits. Though most probably take their birth certificates for granted, these are nevertheless foundational documents critical to managing some of life’s most personal and basic necessities.
Imagine, then, what might happen if on your birth certificate, you were identified as a male, though by all outward appearances, you were, in fact, female?
For thousands of transgender individuals living throughout the Hawaii islands, that’s not a hypothetical, but a daily reality that complicates lives often already fraught with challenges. Nationally, research shows that nearly two-thirds of transgender people experience acts of discrimination serious enough to have major impact on their lives, such as physical assault, homelessness or loss/denial of employment.
Understanding of transgender issues and needs has grown in recent years, in part through such pop culture breakthroughs as the award-winning “Transparent” television series.
Current Hawaii law allows transgender people to have their birth certificates changed to reflect their gender identity, but only after they have completed a “sex change operation” — a dated term that shows how long it’s been since this law was revisited. Physicians for years have used “gender reassignment surgery” or “gender therapy” to describe their treatment of patients transitioning from one gender to another.
But medical terminology isn’t the only thing that’s changed over the past four decades. The scientific, medical and psychological understanding of gender has matured significantly in recent years, along with the understanding of transgender people in general and how to most appropriately meet their needs.
Professional experts today agree that a trans individual need not have surgery to be described accurately as male or female. While surgery is an option that hundreds in the United States pursue each year, many more trans people either can’t afford the costly procedure, aren’t appropriate medical candidates or simply opt for hormone or psychological therapy, stopping short of the operating room.
Society ought to recognize such individuals exactly where they are, according to the American Psychological Association, which advocates for “legal and social recognition of transgender individuals consistent with their gender identity and expression, including access to identity documents consistent with their gender identity and expression.” That’s a position shared by the World Professional Association for Transgender Health and the American Medical Association, which last year adopted a new policy advocating for the elimination of any requirement for gender surgery to get a birth certificate change.
A Measure of Justice
House Bill 631 would do exactly that for Hawaii. Under the legislation — which has already passed the House and is now headed to a Senate floor vote, having cleared the Health and Judiciary and Labor committees — a transgender person seeking a revised birth certificate would be required to submit an affidavit from a licensed physician or mental health provider affirming the applicant’s gender identity.
Unfortunately, Sen. Gil Keith-Agaran’s Judiciary & Labor committee marred the bill last week with an amendment that would also force every such applicant to submit the affidavit to a Circuit Court judge, who may not have any of the training afforded medical and mental health specialists to make an informed judgment.
While the amendment says an actual court hearing would be waived unless there are “significant concerns” over the affidavit, there’s no reason that such concerns shouldn’t be addressed at the Department of Health instead, saving trans applicants a potentially costly and difficult court process. A 2011 national survey of the trans community found members were four times as likely as others in the general population to live in extreme poverty, with 15 percent having household incomes of less than $10,000 a year; for Asian and Pacific Islander trans people, that percentage is even higher.
The Department of Health’s Office of Vital Statistics and state attorney general sought the change so that such birth certificate changes would simply be made at the direction of a court. Yet, other states are able to facilitate such gender marker changes without court orders. Six — California, New York, Oregon, Rhode Island, Vermont and Washington — plus the District of Columbia already allow trans individuals to change their birth certificates without requiring surgery. Connecticut, Colorado and Maryland are currently considering legislation similar to Hawaii’s bill.
We encourage the Senate to pass HB631 and for the court-order amendment to be eliminated in conference committee. While conferees are at it, they should reinstate a clause in current law that was somehow deleted in this bill that allows a birth certificate to be changed if it is determined that the sex marker designation was made in error at birth — a common occurrence for trans people. That route to change must be maintained.
While important details remain to be addressed before this bill receives final approval, it’s important that lawmakers remain focused on the legislation’s most important provision — the removal of gender surgery for a sex marker change. The trend on this fundamental matter is clear, and the rationale for it is one that the Department of Health, the state Attorney General’s Office, physicians, psychologists and, most importantly, the transgender community agree on.
Lawmakers should take this opportunity to deliver a measure of justice to some of Hawaii’s most marginalized residents and allow them to escape a loop of endless hassle and discrimination over a box on a state form.
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