General Vital Statistics Provisions (Article 207, Section 207.05) regarding Transgender Birth Certificates
Proposed Rules: Closed to Comments (View Public Comments Received:7)
Statement of Basis and Purpose
In 1971, the Board of Health amended New York City Health Code Section 207.05 to allow the Department to file a new birth certificate for a person who had legally changed his or her name and who had undergone “convertive” surgery. The Department has interpreted the requirement for convertive surgery in subsection (a)(5) of Section 207.05 to mean genital surgery. As a result, the Department has required transgender applicants who desire a new birth certificate with corrected gender to submit a surgical operative record including the date of the operation; a post-operative examination report signed by a physician attesting to the applicant’s surgical change of sex; and a post-operative psychiatric evaluation signed by a psychiatrist or clinical psychologist. Until December 2006, the Department issued new birth certificates listing the applicant’s new name, but omitting reference to any gender, to anyone who submitted acceptable documentation. After December 2006, when the Board of Health approved a change to the birth certificate form, the Department has provided new birth certificates that list not only an applicant’s new name but also the corrected sex designation. Applicants are still required, however, to obtain a court ordered name change and undergo convertive surgery. This rule proposes to eliminate the requirement that an individual must obtain a court ordered name change and undergo convertive surgery.
Other jurisdictions similarly have amended their laws to allow transgender people to obtain new birth certificates with corrected sex on birth certificates without having to undergo surgery. In May 2014, New York State Department of Health changed its procedures for correcting gender on birth certificates in the rest of the state (outside of New York City). For people born in New York outside of New York City, the State Department of Health will now issue a new certificate to an applicant who submits a notarized affidavit from a physician, nurse practitioner or physician assistant licensed in the United States that either states that the applicant has undergone appropriate clinical treatment for a person diagnosed with gender dysphoria or transsexualism, or confirms that surgical procedures have been performed on the applicant to complete sex reassignment.
At the federal level, the U.S. Department of State in June 2010 announced a change in policy allowing the gender designation on passports to be changed for applicants producing certifications from attending internists, endocrinologists, gynecologists, urologists or psychiatrists stating that the provider has a doctor/patient relationship with the applicant and that the applicant has undergone appropriate clinical treatment for gender transition. Likewise, as of September 2013, the Social Security Administration no longer requires proof of surgery in order to change the gender on Social Security (SSN) records. The Social Security Administration now authorizes medical certifications of appropriate clinical treatment for gender transition from a licensed physician or doctor of osteopathy.
This trend reflects an understanding of the diverse expression of transgender identity, and that not all transgendered persons want surgery in order to express their gender identity. Indeed, in June 2014 the American Medical Association expressed its support for eliminating any requirement that an individual undergo surgery in order to change the sex indicated on a birth certificate.
The Department proposes that the Board of Health amend Section 207.05 to authorize the Department to issue an applicant a new birth certificate with a changed gender marker without requiring such applicant to have undergone convertive surgery. The Department proposes to require an affirmation from a physician licensed to practice in the United States, or an affidavit from a doctoral-level psychologist, clinical social worker, physician assistant, nurse practitioner, marriage and family therapist, mental health counselor, or midwife, licensed to practice in the United States, in order to ensure the integrity of birth records when gender has been amended. The Department recognizes it is critically important for individuals to have birth records that accurately reflect their gender for many purposes including obtaining access appropriate to care and facilities. The rationale is as follows: (1) birth certificates are foundational documents upon which all other official documents are based, including United States passports, driver licenses, and Social Security cards, are proof of United States citizenship, and should only be amended upon presentation and acceptance of the required documentation; (2) physicians and doctoral-level psychologists, along with clinical social workers, physician assistants, nurse practitioners, marriage and family therapists, mental health counselors, and midwives are licensed by issuing authorities in the United States, their credentials can be evaluated and validated, and they can be subject to professional sanctions, penalties and prosecution for providing false information; and (3) New York City, as an independent vital records jurisdiction, along with New York State and the other 55 vital records jurisdictions, works in close partnership with the federal government, and federal government agencies must rely on the integrity of birth records to accurately represent the facts of birth. Without birth record integrity, passports, driver licenses and other core identity documents would be questionable. The integrity of the birth records will be maintained with this change while making it easier for transgender individuals to obtain birth records that accurately reflect their gender.
The Department is also proposing that the Board of Health amend Section 207.05 to eliminate the requirement that applicants for new birth certificates with corrected gender also change their names. The Department recognizes that some applicants may want to change their name on their birth certificate, and such applicants would still need to show that the new name was legally changed by a court order. Some people transitioning from one gender to another, however, may want to continue using the same name. These applicants should not be required to go to court and legally change their names in order to obtain new birth certificates.
Finally, the Department is requesting that the Board of Health amend Section 207.13 regarding fees to simply reflect the proposed removal of the “convertive surgery” requirement and replace it with the language consistent with the proposed changes to Section 207.05.
The proposal is as follows:
“Shall” and “must” denote mandatory requirements and may be used interchangeably in the rules of this Department, unless otherwise specified or unless the context clearly indicates otherwise.
 See World Professional Association for Transgender Health (WPATH), “Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People”, 7th Version (2012) at www.wpath.org.