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Proposed Rules: Closed to Comments

Agency:
Comment By: 
Tuesday, July 24, 2018
Proposed Rules Content: 
 
 

Statement of Basis and Purpose of Proposed Rule

Background

In 1971, the Board of Health amended section 207.05 of the New York City Health Code to allow the Department to file a new birth certificate with a corrected gender marker of male or female for a person who both obtained a court order changing his or her name and who underwent “convertive” surgery.  The Department had, generally but not exclusively, interpreted the requirement for convertive surgery to mean genital surgery.  As a result, transgender applicants requesting new birth certificates were required to submit medical records demonstrating that they had undergone genital surgery to change sex and the number of requests for a corrected birth certificate was relatively small.  For example, in 2012, the number of new birth certificates approved and issued to transgender applicants was 20 and, in 2013, only 22 new birth certificates were issued.

In 2014, the Board of Health amended Section 207.05(a)(5) to eliminate the requirement for convertive surgery.  This amendment allowed the Department to issue a new birth certificate with a changed gender marker of male or female based on 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.  Eliminating the surgery requirement led to a dramatic increase in requests for new birth certificates; from January 2015, when the amendment became effective, through February 2018, the Department issued 1,047 new birth certificates to transgender applicants.

Proposed Amendment

The Department is now proposing to eliminate the requirement that a person requesting a change to the sex designation on a birth certificate present proof from a health professional.  Instead, applicants would be able to self-attest as to their gender.  Additionally, the Department is proposing that the Board approve “X” as an additional sex designation for persons who do not identify as exclusively female or male.

The Department, in discussion with other states and advocates, has found that having practitioners affirm or attest to a person applicant’s gender identity is both a potential barrier for persons without access to a practitioner and does not add sufficient value in the process of deciding whether a new birth certificate should be issued.  Anecdotal evidence suggests that practitioners simply comply with their patients’ requests when asked to affirm or attest to a patient’s request for a change of gender.  Consequently, the Department proposes to rely on the applicant’s attestation that would require notarization.

The Department is also proposing that the Board approve “X” as an additional sex designation option that is not exclusively female or male for birth certificate sex change requests.  The sex designation on the US Standard Certificate of Live Birth is completed by the hospital or attendant at the time of birth.  The four choices are male, female, unknown and undetermined.  These are “sex” categories and not gender categories. The original public health data reported by the hospital is not changed under this proposal.

“Gender” categories are only applied on the birth certificate during an amendment process.  When the gender on a birth certificate is amended the original record is placed under seal and a new record is created.  There is no indication on the record of the amendment history.  The Department is proposing to allow “X” for those applicants who want a designation other than female or male on their birth certificate.

 
 
Subject: 

Proposed resolution to amend Section 207.05 of Article 207 (General Vital Statistics Provisions) of the New York City Health Code to eliminate the requirement that a person requesting a change to the sex designation on a birth certificate present proof from a health professional, and instead require self-attestation.

Location: 
New York City Department of Health and Mental Hygiene, Gotham Center
42-09 28th Street, 3rd Floor, Room 3-32
Queens, NY 11101
Contact: 

Svetlana Burdeynik, (347) 396-6078, resolutioncomments@health.nyc.gov

Download Copy of Proposed Rule (.pdf):