UPDATE: Here is a link to the new policy. See comments for discussion.
The U.S. Department of State has announced new policy guidelines regarding gender change in passports and Consular Reports of Birth Abroad.
The previous policy, which was never made publicly available, required a surgeon's affidavit documenting specific sex reassignment surgery procedures used (and often non-US affidavits were not accepted), and restricted change in the sex marker on passports to those who had "sex reassignment surgery." I got a copy of the previous policy after a FOIA request during my own passport woes. There are different kinds of surgery that might be considered in aid of "sex reassignment," but the policy didn't specify. Passport issuance often depended on the interpretation of the particular official who reviewed the application.
The new policy is not yet publicly available, but the press release says that it will require certification from an attending medical physician that the applicant has undergone "appropriate clinical treatment for gender transition."
This will be sufficient to reflect the new gender on a passport and "Consular Reports of Birth Abroad," which is essentially an official birth certificate issued for U.S. citizens who are born outside of the U.S. No additional medical records, other than the physician's statement, will be required.
What constitutes "appropriate clinical treatment for gender transition"? There are detailed guidelines, but it will not include sex reassignment surgery.
The significance of this change goes far beyond providing relief to trans people who wish to travel abroad. The federal government has essentially declared that federal law now recognizes that legal sex is not synonymous with anatomical sex for all purposes.
More explanation of what this highly significant development means, and my own passport horror story with Secretary of State Hillary Rodham Clinton, after the jump.
The press release is a bit unclear. It states that "it is also possible to obtain a limited-validity passport if the physician's statement shows the applicant is in the process of gender transition."
A "limited-validity passport" has meant, in the past, that a passport valid for a year would be issued with the new gender. The underlying assumption was that a person who wished to obtain sex reassignment surgery was required to live in the opposite sex role for at least a year in order to fulfill the medical prerequisites to surgery.
Since sex reassignment surgery is no longer required for gender change, it was unclear to me why a limited-validity passport would be necessary
I was able to speak with Mara Keisling, Executive Director of the National Center for Transgender Equality about this.
She explained that the new policy will require a letter from the applicant's physician attesting to the "appropriate clinical treatment for gender transition." A model letter will be included with the policy to assist physicians in writing the letter. "Appropriate clinical treatment" is left undefined in the policy, and what is appropriate in particular cases will be decided within the doctor-patient relationship.
Prior to completion of this "appropriate clinical treatment," however, the "limited-validity" passport will be made available upon a statement by the doctor that such treatment is in process. It will be valid for two years.
The press release also notes, comfortingly, that passport issuing officers at embassies and consulates abroad and domestic passport agencies and centers "will only ask appropriate questions to obtain information necessary to determine citizenship and identity." That implies, I hope, that passport officers and agents will receive some training on what to ask and what not to ask. Otherwise, I would expect the status quo of raised eyebrows and intrusive questioning to continue. I would like to know what training passport officers and agents will receive to ensure that this really happens.
The Real Story
As I noted, the real story here is that the State Department appears to be acknowledging that gender identity and sexual anatomy can really and truly be different. In other words, genital surgery doesn't make one into a man or a woman.
This is not only being done for passports, which are a mere travel document, but also for the Consular Report of Birth Abroad. That is a form of birth certificate issued for US citizens who are born outside the U.S. That's a big deal. There was a big brouhaha a few years ago when New York City tried to change the law to recognize sex reassignment on birth certificates prior to surgery. Iowa is the only jurisdiction in the US I know of that permits this.
That is, aside from the federal government, as of now.
The Knife Doesn't Cut It
Many people, including the well-intentioned, believe that the dividing line between man and woman is a certain anatomical configuration. If it were possible to wave a magic wand and create the requisite anatomy, that might not be so bad. But that view doesn't come close to the reality.
Sex reassignment surgery is medically difficult and expensive. Average cost for male-to-female vaginoplasty is about $20,000, and female-to-male phalloplasty is about $30,000. Costs can be less in other countries, like Thailand, and the surgeons are reputed to be excellent, but there have also been many stories about sub-standard and even dangerous follow up care if complications require an extended stay abroad. Secondary costs of travel and follow-up care add to this burden. There can be serious, long-lasting and irreparable complications even in perfectly healthy people, as we discussed a few days ago on this blog, and many common ailments constitute serious contraindications. It's also not available to those under 18 except in very rare situations.
Many female-to-male transsexuals opt against phalloplasty because of lack of sensation and erectile inability without an implanted pump. It also requires a skin graft from other areas that can create serious disfigurement. Many opt instead for hysterectomy, vaginectomy and metoidioplasty. These are less invasive, and often more satisfactory to the individual.
The fact that the State Department has taken the time and effort to understand these issues is quite a breakthrough in sensitivity to trans identity. After years of dealing with well-intentioned people who can't seem to fathom the idea that sexual anatomy is not the dividing line between male and female, this is like a breath of fresh air. Whether it will smell like roses or not will depend on what the actual regulations say.
A lot of people deserve credit for this. Those I know of include Secretary of State Hillary Clinton and her staff, Reps. Barney Frank and Steve Israel, NCTE, NCLR, the Task Force, GLIFAA, and the Council for Global Equality, the American Medical Association and the World Professional Association for Transgender Health.
Me And Hillary
Now for a history lesson. It was Spring 2001. My boyfriend was taking me to Paris.
Only one problem.
My passport had an old name and an old gender. I was planning on SRS (sex reassignment surgery) at some point in the future, but I wanted to wait until I was really, really sure. (I had started living as a female at the beginning of '98.) I had friends who had opted for it early on, and they were having some trouble adjusting.
I also had no money, as I was working as a secretary, and I had child support payments to make, and high expenses travelling from New York to Western Massachusetts every two weeks to see my 8 year old son.
I was very concerned about being stopped at airport security. My "awkward transsexual" phase was over, and it wasn't obvious to most observers that I was trans. The "M" on my passport, the male picture, and the male name would stand out like a sore thumb when presented by a female-looking person. My driver's license already had an "F" on it, so that would raise even more questions if requested.
What joy could I have in anticipating a trip to Paris, if I was constantly worrying that I would not be permitted to board the plane, perhaps charged with some kind of fraud, or worse yet, detention in a foreign country?
I called the passport agency to ask about the rules, and no one there seemed to know. I finally, after hours of trying, got someone on the line who purported to know the answer. The answer was there was nothing I could do, except update the picture. I didn't have a court order changing my name, and I didn't have sex reassignment surgery. In New York State, a name change requires a petition to the New York Supreme Court, takes months, and is not guaranteed if the judge thinks it's not appropriate to allow a male to change to a female name. (Advocates are still working on this problem.) Attorney fees run into the hundreds of dollars. (Now there are free name change clinics available, but there weren't then.)
I decided to call my U.S. Senator's office -- Senator Hillary Rodham Clinton.
I was referred to a very nice, sympathetic constituent services person there. He did some research, and said that I couldn't change my name, but I could use an "AKA" on page 24 of the passport that would say "Jillian." The front page would still have the old name, but at least I could refer people to that page to show them why my air tickets, customs form and hotel registration used a different name. However, I had to show three years of previous tax returns using the new name. Since I hadn't been using the new name for three years, that was a problem. (I wound up filing amended returns for the last three years.)
I couldn't change the gender, however. That left me concerned. I explained to the nice man why I was concerned. Airport security (even in those pre-9/11 days) sometimes caused major problems for trans people. And I didn't know what faced me on the other side of the border, where I didn't know the language or the culture. We talked about different ways to address the problem. He said he would speak to the French consulate and find out the best way to handle the issue.
He called me back after speaking to the French consulate. Apparently, their office would issue a letter to me for use just in case there was a problem in France.
However, there was a catch. They wanted me to go to a doctor of the consulate's choice for a genital examination. Then, if everything "checked out," they would issue a letter in French. I was stunned. Submit to a medical examination? I did not like the idea at all of some person I didn't know asking me to drop my drawers and taking a gawk. It was demeaning, and it also made no sense. Why would I lie about not having surgery? My passport said "M"; and I was being open about the fact that my genitalia didn't match. What did they expect to find in my underwear, flowers?
I explained my dissatisfaction with the procedure suggested. I asked if he could call them back and ask them to accept a letter from my doctor. He declined. "Do you want to do this or not?" he testily inquired.
I went to the doctor. She was a very nice older woman with a heavy French accent. She was nice, but matter of fact. She asked me to disrobe, and probed around a bit, asked no questions. I felt humiliated, but turned my head and thought of Paris.
I got my letter. I went to Paris and had a wonderful time.
P.S. Three years later, in 2002, I went to Canada for SRS. After I recovered, I went to the passport agency in Manhattan to present my surgeon's affidavit, along with my old passport and a generic form requesting a new passport. I waited on the line until I got up to the window. There were several windows right next to each other. Everybody could hear everything every one else was saying. I submitted my forms silently to the woman behind the thick plexiglas. She looked at the forms I had submitted, but could not figure out what the requested change was. She asked me a question I could not hear. Eventually after putting my ear right up to the window, I figured out that she was asking why I was asking for a new passport. I whispered "change of sex." "What?" she mouthed. "Change of sex," I whispered, a little louder. "What??" she mouthed.
Finally I gave up trying to be quiet. "I changed my sex!" I shouted into the window. The entire enormous room got very quiet for a moment. I did not look up, my face red.
After a moment, the cacophony resumed, and she accepted my papers.
This is all now ancient history. I rarely think of these incidents, and they're filed under "Curiosities" in the back of my mind.
I am glad that a new generation of trans people will not have to endure official disrespect when they get a passport.