Harvard University's LGBTQ Policy Journal at the Kennedy School of Government recently published an article by Harper Jean Tobin, Fair and Accurate Identification for Transgender People.
Ms. Tobin, a lawyer who works for the National Center for Transgender Equality as Policy Counsel, is one of the brightest young trans policy advocates. There's no doubt she'll do great things in the future. The article itself is well worth a read.
Ms. Tobin's article takes a policy approach, noting a major shift toward reform of policies regarding gender documentation taking place across the country. She argues that the updated policies reflect a contemporary understanding of what it means to be transgender and of the role of medical treatment in gender transition. The article is filled with references to useful data. She recommends that such an approach be adopted by all state and federal agencies.
I applaud Ms. Tobin's article. It's very well written -- concise, chock-full of data, and the conclusions flow naturally from the data. I published a law review article on this subject in 2001, The Gender Caste System: Identity, Privacy and Heteronormativity, back when data on trans people was as rare as hen's teeth. (Now that I've passed the half-century marker, I find myself reminiscing more and more about the old days.) I argued that the right to privacy in U.S. constitutional law creates a right to determine one's gender identity in government documents despite governmental regulations to the contrary, and published a follow-up article last year. Ms. Tobin's article takes a different tack.
Ms. Tobin notes that identification documents are among the most serious barriers to employment, housing, essential services, and even personal safety. She suggests that the paradigm that requires proof of surgery to change gender on personal documents is outmoded and dangerous.
But imagine that these everyday documents contained information about you that was not only of a private and personal nature but also could easily lead to discrimination and harassment from which you might lack any legal protection or recourse.
She cites data indicating that genital reconstructive surgeries are especially rare, with fewer than one in five transgender women and fewer than one in twenty transgender men having undergone them. I find it interesting that she refers to "genital reconstructive surgery," rather than sex reassignment surgery, gender reassignment surgery, gender confirmation surgery or other common formulations. I have to admit I don't like the sound of "genital reconstructive surgery," as it calls up a somewhat unwelcome imagery in my mind. But perhaps it is most accurate. We've had a lot of discussion here on Bilerico about what to call such procedures. I usually go with sex reassignment surgery, as I feel that terminology using the word "gender" is inaccurate. But I'm beginning to waver on that point.
She also cites data showing that the percentage of transgender people who are unable to update identification and official records to reflect their lived gender varies from 41 percent for driver's licenses and 51 percent for Social Security records to 74 percent for birth certificates. Prior to a change in federal policy in June 2010, 75 percent of transgender people were unable to obtain a passport that reflected their lived gender, and 79 percent were unable to update all their identification and records.
The article also reviews the history of state laws authorizing corrected documentation for transsexual people. It suggests that "increasingly, however, policy makers have adopted the view that an individual's health care provider--typically either a primary care physician or a therapist--is best positioned to determine the point at which it is appropriate to update gender on official documents." In addition, the role of discretion is discussed, noting that "broadly phrased laws and policies have placed substantial and almost completely unguided discretion in the hands of administrators and, in some cases, local judges..."
This leads to a discussion of the inconsistent results from the patchwork quilt of policies, and best practices with regard to specific types of documentation.
I think this well-documented article will be useful to policymakers and litigators in future situations where identification documents are at issue.
The full article can be found here.