A recent Cook County court ruling makes it possible for transgender people in Illinois to correct the gender on their birth certificates without undergoing genital surgery, but advocates say there’s more work to do and that the current law still requires surgery that can be dangerous, expensive or unwanted.
“It certainly is a step forward,” said June LaTrobe, vice chair and public policy director for Illinois Gender Advocates, about the drop in the genital surgery requirement. “However, there are a number of reservations [the trans community has] about it.”
Previously, in order to change the gender on an Illinois birth certificate, transgender men and women had to prove they had undergone surgery on their genitals. After last week’s ruling, people who’d like to correct their gender need to prove they’ve had surgery of some kind. The change came about as the result of the petition of three people represented by the ACLU of Illinois.
John Knight, director of the LGBT project of the ACLU of Illinois and one of the attorneys working on the case, said in 2005, the state began requiring that people who asked for changes to the gender on their birth certificate show proof that they had undergone genital surgery. The lawsuit that resulted in the recent change was filed in May 2011.
“That's great for a lot of people. That's what we asked for in this case,” Knight said. “It doesn't fix the entire problem, from our perspective. There will be a future need for some legislative or a court case.”
That’s because the state of Illinois has a specific law on the books, the Vital Records Act, that requires surgery to get gender changed on a birth certificate. So the law would have to be changed in the state legislature, LaTrobe said.
“We are well aware that to change a statute you need a new statute,” she said. “It's legitimate to look at the act and bring it up to date. That's a priority, frankly, for the [transgender] community going forward.”
The reason for that is simple, advocates like LaTrobe say: Gender reassignment surgery can be complicated, undesirable or unobtainable for many trans men and women. She said male-to-female surgery can cost $30,000, and female-to-male genital surgery can be three times that amount.
LaTrobe also said some trans people have medical complications that prevent them from being able to get any surgeries safely.
“It's financial reasons, health reasons and then it is a case of ... it's putting a tremendous emphasis around a certain part of your anatomy to define who you are,” LaTrobe said.
The requirement to have genital surgery to get an amended birth certificate put Illinois at the back of the pack nationally in terms of transgender rights, said Lisa Mottet, transgender civil rights project director for the National Gay and Lesbian Task Force.
“The policy requiring genital surgery very specifically actually made Illinois one of the worst states,” she said, calling the old regulation “absolutely, completely burdensome and out of step with most states in the U.S. It was a very backward policy.”
Mottet said a survey of transgender people in the U.S. found that 60 percent of them have not had any surgery at all. Even fewer, about 20 percent of trans women and 2 percent of trans men, have had genital surgery.
Even with the removal of the genital surgery requirement in Illinois, she said, “that still does not leave [Illinois] in great company” in terms of transgender rights. “There is a movement to get rid of surgery-based rules.”
The ideal regulation, say advocates like Matt Wood, staff attorney for the Transgender Law Center, would be based on rules the State Department has for getting a passport, or ones like the law California recently passed. California requires merely that “clinically appropriate treatment for the purposes of gender transition” be undertaken. What those clinically appropriate steps are would be up to the transgender person and his or her doctor.
“We do believe it's a decision best made by the person and their doctor,” Wood said, pointing out that traveling, employment and driving can all be challenging without proper documentation. A law that forces trans people to jump through surgical hoops, he said, “forces a person for the rest of their lives ... [to] always have a document that doesn't match who they are. And that has consequences”
LaTrobe said any potential changes to the Illinois law would likely not come down the pike until next year at the earliest, but she and other advocates say the fix will be necessary as society grows in its understanding of trans people.
“The whole notion of telling people that they have to have a particular kind of medical care is itself based on a misunderstanding of what it means to be transgender,” Knight said. “What really matters for someone's sex and gender is what their brain tells them ... not what their genitals are. I think that's something we really have a lot of education to do” on.
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