Birth certificates: a gendering apparatus

The state imposes unfair requirements on trans citizens

Last week, I touched on why I’m uncomfortable interacting with the police as a trans person. However, the police are part of a larger system in which the state “genders” its citizens, deciding for each one what their legal gender will be and ignoring what those citizens have to say about the issue.

Generally speaking, the state assumes that all people are cis (or “non-trans”). As a result, it sees no problem in assigning each citizen a perceived sex via the birth certificate, then putting this assigned sex on subsequent documents, such as driver’s licenses and passports. In order to reverse this assignment of sex on all gendered documents, it’s often necessary to change it on the birth certificate first.

This legal gendering reinforces the gender binary, providing a bludgeon against people who don’t conform to their legal sex. For example, a police officer or a security guard can deny trans people access to anything from a bar to air travel if their documents don’t match their gender presentation. In 37 U.S. states, there are no non-discrimination statutes protecting trans people; in those places, if an employer runs a background check that turns up any documents that don’t match, they can fire or refuse to hire someone for being trans. And, worst of all, legal documents can out trans people to those who might react violently against them.

As a result, many trans people need to change their legal gender so that their documents match their presentation or identity. The state doesn’t make this process easy; it imposes all sorts of requirements to change one’s legal gender, hurdles that make it very difficult for trans people to obtain that change.

Most U.S. states and Canadian provinces require proof of sex-reassignment surgery (SRS), usually a letter from the surgeon who completed the surgery and another doctor (except in certain intersex cases). This requirement excludes all sorts of people who cannot undergo SRS for a variety of reasons – SRS’s prohibitive expensiveness, the lack of coverage in most provincial health plans, limited access to the surgery even in provinces that do cover it (e.g., Manitoba, Ontario, Quebec, and, until a few months ago, Alberta), and the existence of medical conditions that would complicate the surgery. Most importantly, this requirement disregards the many trans people who don’t want SRS.

Simply put, no state should require SRS for legal changes of gender. This policy legally reduces citizens to their genitalia; it reinforces the idea that to be a “real man” or a “real woman,” you need to undergo surgery. This creates two classes of trans people: those who can or want to have SRS, and who are therefore legally legitimate; and those who cannot or do not want to have the surgery, and who are therefore illegitimate. Furthermore, it’s simply absurd to disregard what trans people have to say about their gender while considering two doctors’ statements on it to be authoritative.

This requirement is not, however, the end of the legal obstacles for trans people who want their gender recognized. The state often restricts changes in status in other ways. For example, in many places no minor can change their legal gender, making trans youth dependant on their parents’ good will – and not all parents are supportive or accepting. Moreover, even if a trans kid’s parents are supportive of their transition, in many jurisdictions, it’s still not legal for youth to get their legal sex changed – with or without parental consent.

In my case, this probably means that I have to return to Vermont, my place of birth, if I want to change my legal gender. And after jumping through all these legal hoops, when I come out of the courthouse, I’ll have at best an “amended” birth certificate: it will always read “male,” but the state will be kind enough to maybe cross that word out and put “female” beside it. This attempt to continue gendering me without my consent is not only unjust but unsafe – my birth certificate will out me as trans every time I have to show it, and I have no way of knowing who’s hostile to trans people.

But the most frustrating question of all is this: why is there even a gender or sex marker on legal documents? Why does the state gender its citizens as “male” and “female,” thereby excluding anyone who doesn’t fit into those categories? Even though I’d change my legal gender to female if I could, that’s not my ideal – it’s only a compromise.

The simplest solution to these problems would be to scrap the whole system – from sex assignment at birth to the hurdles the state has erected to changing legal gender.

Quinn Albaugh is going to write about queer people and immigration, trans people in prison and the police. Tell them what you think: