Dr. Jillian T. Weiss

Illinois Issues New Birth Certificates To Trans Litigants

Filed By Dr. Jillian T. Weiss | July 20, 2011 9:30 AM | comments

Filed in: Politics, Transgender & Intersex
Tags: ACLU, birth certificates, identification, identity documentation, identity documents, IDPH, Illinois

Lauren-Grey-228x300.jpgIn May, I reported on an ACLU lawsuit against the Illinois Department of Public Health for refusing to correct birth certificates of transgender and transsexual people, requiring proof they have undergone a series of sex-reassignment surgeries before they can change the sex marker on their birth certificates.

That lawsuit has paid off, and the three ACLU of Illinois clients soon will receive new birth certificates from the Division of Vital Records of the Illinois Department of Public Health that reflect their correct gender. A Cook County Circuit Court Judge ordered this remedy last week. Lauren Grey (pictured on right), Victor Williams and Nicholas Guarino all will receive new birth certificates under the order.

However, the lawsuit's result comes after a very unusual defense by the State of Illinois.

An Unusual Defense, And Musing About Good Faith

According to the ACLU of Illinois website, rather than file a response to the ACLU's lawsuit, the State of Illinois moved to stay the lawsuit, meaning that it be put on hold, pending legislative developments. The State argued that the plaintiffs ought to wait around until a proposed new rule to be considered by a legislative committee in September will not require genital surgery in order to receive a new birth certificate. This is an unusual defense -- the legislature might possibly act, maybe, we're not sure, and they might not discriminate against you, we think. I have another name for it, but I don't use it in polite company.

Judge Michael Heyman, nobody's fool, suggested that the State show its good faith in living up to its oral assurances by granting new, accurate birth certificates to the three named plaintiffs in the ACLU's case, all of whom have waited for years for these basic identity documents.

Apparently, the State wasn't willing to put its money where its mouth is, because the ACLU website reports that the judge had to order them to do it. "After a subsequent meeting in chambers, the Judge ordered the State to issue the new birth certificates. Illinois officials said they would not challenge the order." How gracious of them.

John Knight, Director of the Lesbian, Gay, Bisexual & Transgender Project at the ACLU of Illinois, noted that the State of Illinois has not been operating in good faith on this issue for quite a long time:

"...there has been no change in the rule as yet - and even the proposed rule includes no clear assurance that the state will not continue to require transgender individuals to undergo unnecessary surgeries. The court's ruling granting birth certificates applies only to our three clients. We continue to believe that there must be a written agreement or court order - enforceable by law - preventing the state from continuing to require genital surgery before transgender individuals can obtain an accurate birth certificate. The state has given our clients assurance before that they would address this unconstitutional practice, only to return to it after some time passes. It is essential that we have an enforceable agreement to prevent that from happening again."

I trust that the ACLU will continue to follow up and to demand a ruling in favor of all trans people born in Illinois. The idea of a stay while some legislative committee plays monkeyshines is ridiculous.

A Terminology Note, And A Deeper Question

I note that the ACLU of Illinois website says "State Issues New Birth Certificates to Three Transgendered ACLU Clients."

The usual formulation followed by most in the community is to say "transgender clients," using a noun as an adjective, as one would say "gay man" or "lesbian woman". No one would refer to a "gayed man," well, at least not anyone intelligent. While there are a few well-known dissenters, such as the estimable Pauline Park, most in the community see the formulation "transgendered person" as suggesting something untoward, perhaps as if the person made a lifestyle choice. Joanne Herman makes the argument well in the Huffington Post.

She says "I have found that whenever "transgendered" is being used, it is usually by a person who is not transgender, or by an organization wanting to be inclusive of transgender people, but not yet having a transgender person involved." I don't know if that's true of the ACLU of Illinois. Maybe they just love Pauline Park as much as I do. I do know that the ACLU of Illinois failed to connect with the people in the trans community there who were working diligently on birth certificate policies, as I reported in May. The miscued terminology might be something for the ACLU to think about.

Still, the ACLU of Illinois deserves to be commended for this result, and the time and energy they spent on behalf of our community. Thank you, ACLU. After seeing several major efforts by the ACLU on behalf of trans people, such as the recent suit in Alaska, I'm thinking it's time for me to become a member, pony up the 35 bucks. You can join here.

UPDATE: Edwin Yohnka, Director of Communications and Public Policy for the American Civil Liberties Union of Illinois responded to me regarding the issue of "transgendered" v. "transgender." He noted that he recognized the error, corrected it and apologizes deeply for the mistake.


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"I have found that whenever "transgendered" is being used, it is usually by a person who is not transgender, or by an organization wanting to be inclusive of transgender people, but not yet having a transgender person involved."

I have heard this objection before and actually took the concern expressed to heart until I realized that this does not seem to be true.

The expression "transgendered" is used throughout The Transgender Studies Reader By Susan Stryker, Stephen Whittle. Other people use the expression, too. In chapter 16 Leslie Feinberg is quoted using the word "transgendered" more than once and probably more than twice.

Either Striker or Whittle uses "transgendered" when writing about Butler and what she has to say about Venus Xtravaganza in Bodies That Matter in another part of the book. I don't have time to pull quotes and Google won't let you copy and paste but it is all here if you want to look.


I don't know who is writing these briefs. I don't want to even approach the question of how sex or gender assignments or reassignments should be determined but I am troubled by remarks like these:

"...there has been no change in the rule as yet - and even the proposed rule includes no clear assurance that the state will not continue to require transgender individuals to undergo unnecessary surgeries.

What does "unnecessary" mean. Alice Dreger Az Hakim and Julie Bindel have all written about "changing minds instead of bodies". What does "necessary" mean in terms of medical insurance coverage? What does it mean in terms of accommodating a penis? What does it mean in terms of traditional gay and lesbian sex roles? What does it mean in terms of changing sex even if surgery isn't necessary for "gender" recognition? What does it mean for a person who finds it "necessary" to change sex? What does "necessary" necessarily imply as far as how someone engages in sex?

If everyone simply gets a "gender" designation or redesignation, I don't think I see a big problem but if there are other implications involving sex, what is "necessary" and what is "necessary" seems to become a lot more complicated. My definition of "everyone" is unambiguous. It means everyone, not just people fighting over whether to call themselves "transgender", "transgendered", "trans", male, or female. If people are assigned a gender but what sex they are determined to be can contradict their gender, then I see a lot of problems with that. To judge what is "necessary" and what isn't in a context that is not clearly defined leaves me with a lot of questions. The way the public accommodations paragraph is written in the proposed version of ENDA I have seen most often, seems to indicate that sex can contradict gender. Sex seems to be determined by how one is assigned at birth by implication of the current wording. Why all the vagueness and ambiguity?

To be honest, I find the expression "transgendered" to be understood as the past tense of a verb known as "transgender" in many instances. That is not meant to be a sarcastic comment.