Letter to Congressman Tonko regarding gender markers on government issued ID

June 4, 2016

Congressman Tonko,
Thank you for your ongoing support of LGBTQ rights through actions such as your support of House Resolution 136 Equality for All Resolution of 2017 and HR 3185 The Equality Act.

The Equality Act, when passed, will provide significant protections against discrimination for members of the LGBTQ community. Policy addressing the use of sex and gender identity markers will additionally benefit those individuals whose expressed gender does not match what is listed in their records and on identity documents.

Changes to current practices regarding gender identification that could further help transgendered people and people who do not identify as either male or female would include:

1. the elimination of any requirement for medical treatment to justify a change in gender on federal records and identity documents.
2. the addition of a third gender identification marker for individuals who identify neither as male nor female; and
3. revision of the Model State Vital Statistics Act and Regulations to provide states with guidance in amending their own gender identification practices.

These steps will help transgendered individuals and people who identify as non-binary to obtain identification that reflects their gender accurately. It will also decrease the likelihood that documents issued by state and federal authorities will contain conflicting gender markers.
In the past, proof of gender reassignment surgery was required to change gender markers on IDs. In 2010, The World Professional Association for Transgender Health (WPATH) issued a position statement in opposition of the requirement for surgical procedures as a condition of identity recognition. In 2014, the American Medical Association (AMA) issued a similar statement that recommends that a change of sex designation on birth certificates be based on verification that, “the individual has undergone gender transition according to applicable medical standards of care”. The AMA did not believe that surgical transition be required.
The requirement for gender reassignment surgery has been removed from the process to correct gender identity markers on US passports, Social Security records and Veteran’s Administration records. However, the requirement for amending state-issued birth certificates and other identification varies from state to state. Several states still require documentation of gender reassignment surgery. Moreover, the Model State Vital Statistics Act and Regulations, last revised in 1992, states that,

Upon receipt of a certified copy of an order of (a court of competent jurisdiction) indicating the sex of an individual born in this State has been changed by surgical procedure and whether such individual’s name has been changed, the certificate of birth of such individual shall be amended as prescribed by regulation.

This requirement implies that in order to amend a birth certificate to reflect an individual’s gender, the individual not only must have surgical gender reassignment but must also take the additional step of acquiring a court order to verify the procedure occurred. Such steps place an undue burden on individuals requiring identification that reflects their gender. Revising the Model State Vital Statistics Act and Regulations will serve as guidance to courts and state governments when submitted to the Council of State Governments for inclusion in the Shared State Legislation Program.
While the changes made to date have been helpful for transgendered individuals who choose to undergo medical gender transition, others make the personal choice not to undergo surgical transition or are unable to access the medical care required. This guidance also offers no relief for those individuals who do not identify as either gender. A person of non-binary sex or gender may be an intersex individual whose biological sex cannot be unambiguously determined or someone who identifies as neither male nor female. These individuals may identify as gender diverse, gender queer, pan-gendered, androgynous, and inter-gender. As with transgender individuals, these people may face discrimination when their identification does not appear to coincide with their gender presentation.
In their 2010 position statement, WPATH argued that, “if a sex marker is required on an identity document, that marker could recognize the person’s lived gender”. Adding a third gender maker can help non-binary individuals. In fact, Australia, Bangladesh, Germany, India, Nepal, New Zealand, and Pakistan all currently allow for a third gender designation on their passports. Canada, too, is considering this option.
In 2006, human rights experts met in Indonesia and developed the Yogyakarta Principles, an international guide for addressing gender identity and sexual orientation. Principle three addresses the right to recognition before the law and begins:

Everyone has the right to recognition everywhere as a person before the law. Persons of diverse sexual orientations and gender identities shall enjoy legal capacity in all aspects of life. Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity, and freedom. No one shall be forced to undergo medical procedures, including sex reassignment surgery, sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity. No status, such as marriage or parenthood, may be invoked as such to prevent the legal recognition of a person’s gender identity. No one shall be subjected to pressure to conceal, suppress, or deny their sexual orientation or gender identity.

The policy proposal below was developed after review of current United States federal policy on the documentation of sex/gender identity, including policies of the Office of Personnel Management, Social Security Administration, and Department of State. In addition, policies from Australia, New Zealand, and Ireland as well as the Yogyakarta Principles were reviewed. This proposed policy:

• removes the current requirement of medical certification for adults 18 years or older.
• removes the current requirement for a state-issued amended birth certificate or court order showing the new gender because the ability to obtain such documents varies considerably from state to state and may pose significant burdens on individuals including the need for surgical or medical treatment that is not otherwise required by federal policy for these documents.
• allows for use of non-binary sex/gender identifier on federal records and identification documents.
• standardizes the requirements for obtaining a sex/gender identifier change on records and identification documents across federal departments and agencies.
• It requires federal agencies to evaluate their need to collect sex and gender identification from individuals.
• eliminates the collection and storage of sex and gender identification information where it is not relevant to the agency’s function.
• revises the Model State Vital Statistics Act and Regulations.

AMA Conforming Birth Certificate Policies to Current Medical Standards for Transgender Patients H-65.967 (Last modified 2014). Available at https://www.ama-assn.org/

WPATH Identity Recognition Statement 6/16/2010 Available at http://www.wpath.org/

Yogyakarta principles (http://www.yogyakartaprinciples.org/)

Australian Government Guidelines on the Recognition of Sex and Gender. Updated November 2015. Available at https://www.ag.gov.au/Publications/Documents/AustralianGovernmentGuidelinesontheRecognitionofSexandGender/AustralianGovernmentGuidelinesontheRecognitionofSexandGender.pdf

 
Gender Identification Policy

Definitions:
Sex- For the purposes of this policy, sex refers to the chromosomal, gonadal, and anatomical characteristics associated with biological sex. Individuals may have a range of circumstances or undergo a variety of treatments that make it difficult to define a true biological sex.

Intersex – The term ‘intersex’ refers to people who are born with genetic, hormonal, or physical sex characteristics that are not typically ‘male’ or ‘female.’ Intersex people have a diversity of bodies and identities.

Gender- Gender is part of a person’s social and personal identity. It refers to each person’s deeply felt internal and individual identity and the way a person presents and is recognized within the community. A person’s gender refers to outward social markers, including their name, outward appearance, mannerisms, and dress. An individual’s gender may or may not correspond with their sex assigned at birth, and some people may identify as neither exclusively male nor female. The way an individual expresses his or her gender identity is frequently called “gender expression,” and may or may not conform to social stereotypes associated with a particular gender.

Non-binary- For the purposes of this policy, a person of non-binary sex or gender is either someone whose biological sex cannot be unambiguously determined or someone who identifies as neither male nor female. Many terms are used to recognize people who do not fall within the traditional binary notions of sex and gender (male and female), including gender diverse, gender queer, pan-gendered, androgynous, and inter-gender.

Transgender/trans- The term ‘transgender’ is a general term for a person whose gender identity does not align with their sex assigned to them at birth by anatomic characteristics. Transgender individuals are people with a gender identity that is different from the sex assigned to them at birth.

Social footprint- A social footprint is evidence of a person’s identity operating in the community. A social footprint can be established using credentials or other information (changes of name, details of education/qualifications, voter registration, employment history, and interactions with organizations such as financial institutions and government authorities) which establish a person’s use of an identity over time.

Licensed medical or mental health provider- for the purposes of this policy, the term licensed medical or mental health practitioner shall include physicians, physician assistants, nurse practitioners, psychiatrists, psychologists, and social workers.

Definitions adopted from Australian Government Guidelines on the Recognition of Sex and Gender. Updated November 2015. Available at https://www.ag.gov.au/Publications/Documents/AustralianGovernmentGuidelinesontheRecognitionofSexandGender/AustralianGovernmentGuidelinesontheRecognitionofSexandGender.pdf

Findings:

1. This policy applies to all federal departments and agencies. It provides guidance to United States federal agencies on the collection, use and amendment of sex and gender information in individual personal records. The policy
   a) outlines a consistent sex and gender classification system for federal records.
   b) outlines a consistent standard of evidence for people to change or establish sex and/or gender on personal records, and
   c) supports the consistent collection and sharing of sex and/or gender information across federal departments and agencies.
   d) provides guidance on the significance of change in sex/gender identifiers
2. The United States recognizes that individuals may identify and be recognized within the community as a gender other than the sex they were assigned at birth or during infancy, or as a gender that is not exclusively male or female. This should be recognized and reflected in their personal records held by federal government departments and agencies.
3. The United States federal government is primarily concerned with a person’s identity and social footprint. As such, the preferred approach is for federal agencies to collect gender information. Information regarding a person’s sex would not ordinarily be required.
4. Increased consistency in the way the federal government collects and records sex and gender will strengthen identify security, the integrity of agency records and the accuracy of individual personal records, in line with the Privacy Act and Paperwork Reduction Act.
5. This policy supports legal protections against discrimination on the grounds of gender identity and intersex status in federal anti-discrimination law.
6. All federal government departments and agencies will treat all people with dignity and respect, regardless of their sex and/or gender identity.

Collection and Storage of Sex and Gender identifiers

7. The collection, use, storage, and disclosure of all personal information, including sex and gender information, by federal departments and agencies are regulated by the United States Privacy Act and Paperwork Reduction Act.
8. The preferred approach is to collect and use gender information rather than sex identification. Information regarding sex would ordinarily not be required as evidence of a person’s identity operating in the community and should only be collected where there is a legitimate need for that information.
9. Departments and agencies should refrain from making assumptions about a person’s sex and/or gender identity based on indicators such as their name, voice, or appearance.
   a)Individuals may have biological characteristics or undergo a variety of treatments that make it difficult to identify or define a person’s true biological sex.
10. Departments and agencies should ensure when they collect gender and/or sex information they use the correct terminology for the information they are seeking.
11. Where sex and/or gender information is collected and recorded in a personal record, individuals will be given the option to select either male (M), female (F), or non-binary (X).
    a)The non-binary (X) category refers to infants who are identified as intersex at birth. It may also be used by any person who does not exclusively identify as either male or female. People who fall into this category may use a variety of terms to self-identify.
    b)The non-binary (X) category must be available on identification compliant with Real ID requirements.
12. Sex and gender identification markers can be legally changed on all United States identity documents and records, including but not limited to birth certificates, passports, social security records, VA and military records, and immigration records to ensure that information presented on government issued identity documents matches the individual’s gender identification.
    a) In order to change sex or gender markers on federally issued identification documents or in federal records for adults 18 or over, the individual must submit the appropriate change form accompanied by a written declaration including sex/gender identity the individual wishes to be displayed on their identification documents and federal records.
    b) In order to change sex or gender markers for minors under the age of 18, the parent or legal guardian must submit the appropriate change form accompanied by documentation from the minor’s licensed medical or mental health care provider documenting the appropriateness of change in sex/gender identification.

Use of Sex and Gender Identification

13. In order to ensure best practices in protecting personal information, all departments and agencies that collect sex and/or gender information must not collect information unless it is necessary for, or directly related to, one or more of the agency’s functions or activities and in accordance with the Privacy Act and Paperwork Reduction Act. Where such information is necessary, it may only be collected by lawful and fair means. Where such information is not necessary, this category of information should be removed from forms or documents.
    a) where federal departments and agencies are collecting sex and/or gender information, they must ensure individuals are generally aware of the purpose for which the information is being collected. Notification must occur at or before the time the information is collected, or if that is not practicable, as soon as practicable after.
    b) Where federal departments and agencies are collecting sex and/or gender information for a statistical or other purpose not linked with individual personal records (i.e. information is collected but not recorded in an individual record), individuals should also be given the option to select Male, Female or non-binary, in line with the sex and gender classification system set out in paragraph 11.
    c) departments and agencies must destroy or de-identify unsolicited personal information as soon as practicable if they determine that it could not have been collected in accordance with this guidance.
14. Collecting and maintaining sex and gender-disaggregated data is crucial to the ongoing monitoring of equality among genders. This policy is not designed to restrict departments or agencies from collecting sex and gender information where this data is necessary for the performance of their specific function, is used to inform the development of policy or delivery of services, or contributes to sex and gender disaggregated data.
15. Conflicts in official documents may arise for people who are transitioning from one gender to another or when dealing with agencies and organizations that have not yet adopted a third gender designation. While individuals are encouraged to ensure their documents reflect their gender, there are legitimate reasons people may hold conflicting documents. For example, people who identify primarily as X may want to hold a passport in a particular gender to ensure their safety while travelling overseas. For this reason, mismatch in sex/gender identifiers in records or on identity documents will not be sufficient reason not to accept an identity document as valid or preclude an individual from receiving benefits.
    a) To provide guidance to state agencies that issue records and identification listing gender identity, the classification system and amendment process listed in paragraphs and minimize the chance of conflicting records, 11 and 12 will be incorporated into the Model State Vital Statistics Act and Regulations.
16. A change in sex/gender identifiers on federal documents does not affect the validity of a marriage, parental rights or any contracts entered in to prior to the change in sex/gender identity.