Dr. Jillian T. Weiss

ACLU Files Suit On Illinois Refusal To Correct Birth Certificates

Filed By Dr. Jillian T. Weiss | May 19, 2011 8:30 AM | comments

Filed in: The Movement, Transgender & Intersex
Tags: ACLU, birth certificates, IDPH, Illinois

The American Civil Liberties Union (ACLU) is suing the Illinois Department of Public Health for refusing to correct birth certificates of transgender and transsexual people, requiring proof they have undergone a series of sex-reassignment surgeries before they can change the sex marker on their birth certificates.

The ACLU released a statement May 10, claiming that the State Registrar of Vital Records had failed to uphold a promise it made two years ago to amend outdated policies that blocked most transgender men and many transgender women from updating their birth certificates.

This tracks a similar suit that was filed in New York a few months ago, and brings a reminder of the federal government's change of policies regarding the birth certificates it issues for foreign births. The story also raises some questions about whether the ACLU knows what it's doing, its relationship with the local trans community, and whether the local trans community knows what it's doing.

According to the Windy City times, the lawsuit was filed on behalf of two transgender men and one transgender woman.

Grey told Windy City Times that she has been working on changing her documents to say female since 2006 and has successfully changed her name and driver's license, although updating documents has cost her more than $1,000 in both application and legal fees. She said she has been trying to change her birth certificate for more than a year and was recently rejected because she had not completed all the surgeries required.

The article says that it is unclear whether the state registrar of vital records currently has a written policy. In addition, until 2005, most transgender people had been able to change their birth certificates without undergoing surgeries. It's rather surprising to hear of a state going backwards like this once the policy is made more progressive.

Interestingly, the article also says that the ACLU represented three transgender individuals who sued IDPH for birth certificate amendments in 2009. That was settled, granting the plaintiffs' birth certificate changes, and throwing out a policy that refused to recognize transgender surgeries performed by physicians licensed outside of the country, and promising to update birth certificate policies to make it easier for transgender people to update their paperwork.

The ACLU said that IDPH failed to make good on that promise.

IDPH released a new proposed policy in January, but that proposal was met with immediate opposition by transgender community leaders. It also mandated a laundry list of surgeries, especially for transgender men who rarely undergo genital surgery, which is both costly and still considered experimental by many.

Strangely enough, or perhaps not so strangely given the fractured nature of the trans community, Illinois Gender Advocates, an advocacy group that had been working with IDPH for the past few years trying to come up with a policy, released a statement of non-support for the lawsuit.

"We are dismayed that the ACLU has chosen to independently interject itself into the process, in such a confrontational and non-productive manner," the Illinois Gender Advocates statement read.

The Illinois Gender Advocates is an interesting organization. It has a series of videos from its cable TV show, as well as training videos they have produced. Here's their video channel. I don't have any information on what their proposed policy would have said.

But the ACLU spokesperson said his clients cannot wait any longer. "We've been telling the department for two years that its arbitrary surgery rules clash with the medical standard of care for transgender people and make it impossible for most transgender people to correct the gender on their birth certificates," he said in the press release. "We took them at their word when they said they would make an appropriate change, but all we've seen is more delay. It's time that they did something to fix that."

Interestingly, the Windy City Times has a quote from the ACLU that raised my eyebrows.

"Illinois is the only state that requires genital surgery," said John Knight, who directs the ACLU's LBGT and AIDS Project. Knight said that other states that allow transgender people to amend their birth certificates typically require a doctor's letter stating that a person has changed their sex in some way, even if they haven't undergone genital surgery.

I may not be up on the latest, but the last time I looked, Illinois is the not the only state that requires genital surgery. A lot of them do. In fact, the New York-based Transgender Legal Defense and Education Fund filed a similar suit back in March of this year, based on New York State's refusal to amend birth certificates without genital surgery.

The federal government also changed its requirements for the Consular Report of Birth Abroad, the federal government's equivalent of a birth certificate for births outside the U.S. Surgery is no longer the criterion for correcting that document.

There's a lot here in this story, and it will be interesting to hear more about some of the questions that it raises, including the propriety of the Illinois rules regarding birth certificates, the Illinois Gender Advocates group's work with the Illinois Department, and the ACLU's relationship with the trans community after filing this lawsuit.


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Ah, the ACLU. They do tend to file lawsuits without working with the local community, don't they? In Indiana they brought a lawsuit challenging the DOMA law - one of the first lawsuits in the country. When they lost (duh!) in state court, they set the precedent that's been used around the midwest to deny marriage rights to same-sex couples. The ACLU filed suit without bothering to tell anyone in the LGBT community that they would be doing it. We all found out from the newspaper.

You're absolutely right. One example from ten years ago involving an organization that has filed hundreds of LGBT rights lawsuits over its history must make it true!

I'd like to get more information on the Illinois Gender Advocates and their efforts to create a new policy with the IDPH. Anyone know anything about that? I'll send an email to them and see if I can get a response.

I'd be happy to help, Jillian, since I know, have met, or have worked with everyone involved.

FWIW, last winter I attended one of the IDPH's info-gathering meetings on the proposal that IGA refers to, which representatives of IGA, everyone trans in the audience, and two state assemblymen roundly criticized as unworkable and unreasonable. It was a message that the IDPH's representative seemed to understand.

That said, one of the politicos in attendance, state rep Sara Feigenholtz, had previously tried to get legislation passed that would have made getting birth certificates amended without surgical requirements a matter of law, but was thwarted by downstate conservatives. People have been working to get this changed, which I expect is the point of contention: those who would like to work with IDPH to get a trans-friendly policy adopted are troubled for the fate of their efforts by those who will sue over the existing injustice.

For myself, I don't have a problem with the suit as a matter of trying to address an injustice, even as IGA and other organizations try to get the IDPH to adopt more reasonable standards. Taken collectively, it should help a state bureaucracy better understand that they are not responding to their citizens' needs. There are legislators who get it -- ideally, we'll make it happen, but whether we get there with a bill, policy adoption, or through the courtroom, they're fights worth fighting.

brandigirl | May 19, 2011 9:33 AM

Here's the part they caught my attention.
But the ACLU spokesperson said his clients couldn’t wait any longer. "We've been telling the department for two years that its arbitrary surgery rules clash with the medical "standard of care " for transgender people and make it impossible for most transgender people to correct the gender on their birth certificates.
I don't think the ACLU has a clue about what the SOC says. Because if they didn't they known that there are NO Standards of care covering the transgender they don't mention "transgender" they solely refer to "Transsexuals"
Transsexuals are the individuals who are born with the feeling of being in the wrong body not transgender individuals. I'm going to keep bring this up because I think it's high time EVERYONE starts using the correct terminology. I feel that doing so will help clarify the differences in the various gender groups to the general public as well as bring some moniker of peace between the trans gender camp and the Transsexual one.
We are NOT all the same and everyone who puts on a dress doesn't have GID/GI some who do so ARE just freaks pervs and weirdo’s. I also saw in the story were it says.
Interestingly, the article also says that the ACLU represented three transgender individuals who sued IDPH for birth certificate amendments in 2009. That was settled, granting the plaintiffs' birth certificate changes, and throwing out a policy that refused to recognize transgender surgeries performed by physicians licensed outside of the country, and promising to update birth certificate policies to make it easier for transgender people to update their paperwork. The ACLU said that IDPH failed to make good on that promise.
Uh No the IDPH didn't go back on their promise they ONLY change they agreed to is to change their policy and to start accepting surgery documents of out of the U.S. They didn't stop requiring Proof of surgery. This is exactly what the social deconstructionist that push the transgender agenda would like they like to make it law and even have legal protections for every swinging D%$# who wants to wear a dress and force everyone else in society to play along. They like to force a third gender of half male and half female upon society and have it legally protected, but society isn't going to just roll over and neither will I or many others who like the binary system.

It's pretty easy to see that the ACLU just like the vast majority of other political and social orgs doesn't have a clue about the Differences in the Gender variant groups or the needs or requirements of either

"We are NOT all the same and everyone who puts on a dress doesn't have GID/GI some who do so ARE just freaks pervs and weirdo?s."
You say that like it's a bad thing.

@brandigirl,

Genital Reconstruction Surgery would be a "nice-to-have" thing for trans people who have medical conditions that make surgery dangerous and life-threatening. But we can't have it.

Requiring it for a birth certificate change when an individual is medically transitioned via HRT, is or should be considered arbitrary and capricious.

In addition, for those without medical issues, who are medically transitioned, and/or who have had surgical procedures that fall short of full genital reconstruction, a GRS requirement can also be deemed to be arbitrary and capricious.

Based on my understanding of the medical research since 1995, it is clear that trans people are not correctly assigned the sex they were assigned at birth. The initial assignment of sex is an error. Period.

So, what would be non-arbitrary? Leave the determination and correction of sex on all identity documents, including birth certificates, to the individual and the individual's qualified physician or mental health professional.

Brandi, if you want to use "correct" terminology, I suggest that you use the modern mainstream terms:

Transgender is the term used to mean what you use "transsexual" for.

Bigender is the term used to mean what you use "transgender" for.

In this nomenclature, transsexual and transgender are largely synonymous, and you're really not dealing with "umbrella" issues in the context of birth certificate and other identification records.

This nomenclature is distinguishable from "gender identity and expression" which is the shorthand version of the statuitory construction used in human rights, hate crime, and other anti-discrimination ordinances. The statutory language for human rights laws is necessarily broader and does bring in a lot of the "umbrella."

In those areas, the evolution of the statutory language has come a long way from 1975, when trans was treated as a kind of sexual orientation. By the time of the adoption of the second Seattle ordinance, and the adoption of similar language for the first time for a state ordinance in Rhode Islannd, the GI&E formulation and the wider umbrella has been used for human rights laws.

Birth certificates are clearly a different issue. Part time crossdressers do not need a birth certificate amendment. Neiter do male-identified drag performers. People who are transsexual (using your term - or transgender using he modern term as used in the mainstream)include all people who live full time in a cross-gender role. (Cross-gender meaning not in accordance with the role expected by birth-assigned sex).

You don't have to insist on using older terminology, when the mainstream outside the inside-the-trans-community-terminology-war has already moved past us.

Brandigirl | May 19, 2011 5:55 PM


Joann while I respect your right to your own opinion I completely disagree.

Genital Reconstruction Surgery would be a "nice-to-have" thing for trans people who have medical conditions that make surgery dangerous and life-threatening. But we can't have it. Requiring it for a birth certificate change when an individual is medically transitioned via HRT, is or should be considered arbitrary and capricious.

I see your point and I agree that there are those who can't have surgery for medical reason, but they are a minuet group of a already very small group and as such don't warrant a change in state law or policy in my opinion.

Then you stated In addition, for those without medical issues, who are medically transitioned, and/or who have had surgical procedures that fall short of full genital reconstruction, a GRS requirement can also be deemed to be arbitrary and capricious.
Again we Disagree I don't feel that cost should be a determining factor in the least, a chemical castration does not a sex change make. And thus doesn't warrant a change in birth certificate. Only full and complete GRS/SRS should be accepted for a birth certificate change
You then stated based on my understanding of the medical research since 1995, it is clear that trans people are not correctly assigned the sex they were assigned at birth. The initial assignment of sex is an error. Period.
Well It depends on what who you are referring to with the word "trans" if you mean HBS diagnosis transsexuals then I agree they should have documents changed once they have had surgery, but if you mean transgender individuals then we disagree again.

You said Brandi, if you want to use "correct" terminology, I suggest that you use the modern mainstream terms:
Transgender is the term used to mean what you use "transsexual" for.
Bigender is the term used to mean what you use "transgender" for.
In this nomenclature, transsexual and transgender are largely synonymous, and you're really not dealing with "umbrella" issues in the context of birth certificate and other identification records.

While I admit that's "transgender" as become the used term and that there in lye’s the problem as Transsexuals have very difference needs then those under the transgender umbrella. I am seeing more and more newspapers as well as new blogs beginning to use both terms when writing about Trans issues, this I feel is because myself and others continue to educate people, bloggers and news orgs on the huge differences between these two groups.

You don't have to insist on using older terminology, when the mainstream outside the inside-the-trans-community-terminology-war has already moved past us.

Yes others and I feel we must and will as their needs to be made clear the distinction between HBS Transsexuals and the transgender who don't feel the need for surgery but expect the same rights.

Birth certificates are clearly a different issue. Part time cross dressers do not need a birth certificate amendment. Neither do male-identified drag performers. People who are transsexual (using your term - or transgender using he modern term as used in the mainstream) include all people who live full time in a cross-gender role. (Cross-gender meaning not in accordance with the role expected by birth-assigned sex).

Just as you stated Cders and Drag Performers don't need changed birth certificates nor do they want them, simply because they are safe and secure in their male gender Identities, like wise I feel that those who Refuse surgery also have male gender Identities and lacking the proper GID/GI diagnosis shouldn't be allowed to change birth certificates or other documents imho

like wise I feel that those who Refuse surgery also have male gender Identities and lacking the proper GID/GI diagnosis shouldn't be allowed to change birth certificates or other documents imho
What about those who are Intersexed? They're precluded from a GID diagnosis, even if they match all of the other criteria. What about those women with masculinised genitalia but original female birth certificates?
Brandigirl | May 19, 2011 11:51 PM

Zoe I have no interest in intersexed Indidivuals and could care less as they are also such a minuet group that not many people care except for the ones it effects. Sorry I known that's not the answer you wanted.

"No one is free when others are oppressed."

The continued use of post-op status as a bright line legal prerequisite for the correction of what is actually an erroneous assignment of sex at birth is barbaric, arbitrary and capricious.

In 1965, when New York City assembled a "blue ribbon" commission of reknowned medical experts, it was the commission's conclusion that transexual the term used in those days) people (were merely delusional members of their originally assigned sex for whom the various hormonal and surgical treatments were deemed to be "merely palliative."

At that time, the commission recommended that birth certificate records not be changed, even for those who had had surgical treatment.

Since 1995, medical studies have been coming in that have changed the understanding of the nature of transgender (the current term used for transsexual) people, so that it is becoming well settled that we are developmentally different from the onset of ontology - when the embryo starts sexual differentiation, some parts follow one genetic sex blueprint, while others follow the blueprint for the other sex.

Technically speaking, at birth, we are "other." We are not properly classified as members of the original sex because our brains (or at least the parts the our brains that determine gender identity) developed the other way, and we don't fully belong to the non-assigned sex because our genital tracts developed along the assigned-sex's path.

We live in a society that is arranged on an artificial binary basis and expects two and only two sexes to be assigned.

The most humane criteria to use for obtaining a correction of sex designation on legal identification documents, including birth records, would involve reliance on the individual's self-determination coupled with confirmation by a duly licensed medical or mental health professional.

At the most, society might take a position that individuals assigned to one sex not continue to be reproductively capable along the lines of the members of the other assigned sex. This could be accomplished hormonally, or by much less dangerous surgery than GRS.

It is bad enough trying to cope with needing GRS and not being able to have it. Setting the bar in such a place that only a tiny minority of those with HBS can be recognized in their correct binary sex is not only arbitrary and capricious, it could be deemed to be cruel and unusual.

But of course we can politely disagree, we're all members of "minute" populations after all - but no one is free until we are all free.

Is there any further word about the possibility of a similar effort in Idaho?

ellysabeth | May 19, 2011 11:28 AM

When I was preparing for my trip to visit Dr Suporn in Thailand, I found myself in need of a copy of my birth certificate, so that I could file for a passport. I applied immediately at Vital Records to get a copy. As I was living very far out of state, and could not find a relevant telephone number (or, even, any number capable of putting me into contact with a human being), I used their online system.

I dutifully filled out every line truthfully, including the name given on the birth certificate, my current name, and my SS#, which should tie the two together.

A good amount of time passed, after which I received a letter from the Depth of Vital Records informing Mr that I was ineligible to receive a copy of this person's birth certificate - only the person named on the certificate, the mother, or the father could apply.

By this time, the window to get my passport was narrowing speedily. While my father happened to be in the area, he and I were not on speaking terms anymore, so that was no help. Fortunately, my mother was willing to drive down there and pick up a copy in person, which she immediately FedExed to me.

I wonder what would have happened, were my mother unable to help me. My name has legally been changed, in the state of IL, even. I no longer possess any documentation capable of identifying me as the individual listed on the birth cert - while I do possess a copy of the name change order, it is questionably useful, as a clerical error resulted in an incorrect copy of the form being filed in the court archives, with the actual signed-by-a-judge original in my hands.

In summary, even if proper legislation were passed, even if the right court decisions were made, I do not have faith that the state's various bodies are sufficiently competent to properly execute. My best advice to trans people: do not be born in Illinois. If you should happen to be so unfortunate, you have my sympathy, and I hope you are wealthy enough to be able to litigate yourself into state-recognised personhood.

OMG, you're describing a situation similar to that which spurred me to start the first of the batch of New York lawsuits that are now being handled by TLDEF.

The NYC Bureau of Vital Records refused to allow me to have a copy of my unamended birth certificate - when I brought an Article 78 proceeding sounding in mandamus to have the court require the city agency to disgorge my BC, I added a number of other claims, including one that asked the court to order the health department regulations be changed to eliminate the catch 22 provisions and allow for correction of birth certificates without the onerous requirements currently imposed.

When this survived the City's motion to dismiss, I turned to TLDEF for help.

I could have got my 83 year old mother to make an application from Florida, but that was not the point, for me. It is bad enough when bureaucrats make up arbitrary rules to make people suffer - we should not have to put up with it when they do.

The rules of administrative law puts tremendous power in the hands of the bureaucrats - but the courts will take action when they crss the line into being arbitrary and capricious.

Based on a modern scientific understanding of the trans phenomenon, it is actually possible for the courts to bring justice to a realm where the bureaucracy has eben mired in science that is out of date and wasnot good science even when it prevailed.

ellysabeth | May 19, 2011 8:26 PM

I remember reading about your case in an article somewhere! It managed to pull a bit of media attention. You're a braver soul than I. The moment I got my passport, I resolved to use it in preference to birth cert wherever possible, to keep it current, and to never, ever lose it. I am boned again if I do.

I am basically terrified of dealing with bureaucracies in aneven the most mundane of ways, let alone taking one on in court. I play by the rules, do my best to keep my head down, and still occasionally get accused of fraud by confused bureaucrats incapable of following established procedures.

I suspect that in taking up cases like these, the ACLU probably thinks they are speaking up for people like me - the little mice too cowardly, poor, or busy to be able to fight their own battles. I can see the nobility in that, but I can also see the problems inherent in having a self-appointed white knight charging into battles that might not need to happen...

ellysabeth | May 19, 2011 8:40 PM

Also for the record I am completely happy with the ACLU applying additional pressure here, especially in the context that I plan to continue to remain in my questionable legal status up to the point that it impacts my rights. If someone else manages to get things fixed between now and then, they get a heartfelt "thank you" from me.

Lawsuits, along with demonstrations and the like, are generally "outside" strategies, while traditional advicacy, negotiation and lobbying are "inside" strategies.

As someone who usually takes an inside tack, but does not hesitate to take the outside tack when necessary (and it is often necessary), I am disappointed in the IGA's statement of dismay.

Having a lawsuit - people working the outside track - should be a stimulus to the State of Illinois to work even harder to accommodate the folks working the inside track, rather than waiting for a court to make the decision.

If the state and the IGA work out a reasonable policy, it may well lead to the lawsuit being dismissed as moot - but both the ACLU and IGA should welcome a positive outcome, whether it's the lawsuit that accomplishes the result, or the negotiations.

The fact that there is both an outide and an inside track is actually a good thing - and it's likely that the presence of one strategy will actually help the other.

IF the state is not negotiating with IGA in good faith, they might take an attitude that "we'll wait for the lawsuit to resolve before we tak to you again" approach.

Such an approach would be quite short-suided on the part of the state, and if that were to be the case, it would be more evidence of animus on the part of the state that would encourage the court to make a proper decision.

Again, the ultimate effect is likely to be a good one.

IF the only reason for the IGA objection is that someone else would "get the credit" if the lawsuit is the vehicle by which the needed reforms take place, that is a very, very shortsided rationale.

Outside strategy and inside strategy - they actually work together!

It'll be interesting to see how this develops - and post more if you get more information about the Illinois Gender Advocates and their stance.

Something tells me a national standard on this wouldn't be favorable to the community.

How's this for a standard; if people want to change their sex designation, then let them. Something tells me that cisgender people won't want to change it and only transfolk will.

ellysabeth | May 20, 2011 8:52 PM

Honestly, "changing sex designation" is barely the tip of the iceberg.

Trans people are continually at a massive disadvantage when dealing with bureaucratic systems of any sort - it can be difficult for trans people to obtain a driver's licence of -any- sort, let alone one with a reasonably representative gender marker. In the US, we receive "no match" letters from the SS admin when applying for jobs. These letters tell our prospective employers that we are -not eligible to work in the nation of our birth. At any point in time where identity needs to be proven, we have to be prepared to deal with ours being questioned, no matter who or what we claim to be.

People who ask why we need gender markers to match on documents listing gender are missing the point. Desiring properly representative identification documents is not a simple matter of wanting to feel good about how these documents portray us and our histories. In some areas (even in the "Land of the Free"), it is actually a crime to be in public without proper identification. Or to use "improper" identification.

It is easy for the ignorant public to brush aside these sorts of concerns as some sort of delusion-enabling flight of legal fancy, but for those of us affected by it every day, lack of proper identification can result in very harsh, very real consequences.

(Not saying you implied this a flight of fancy or unnecessary, just wanted to note the seriousness of the issue for those affected.)

Right now, I thinkwe have a window of opportunity, Alex. The State of Washington is already working in this direction, and we have the federal Department of State regs on passports following the most modrn standard, ina ddition to negotiations in New York and Illinois and lawsuits in both of these states.

The time is probably ripe for something on the order of a "Model Gender Recognition Act" to be introduced and passed in at least a few states, and then hopefully, eventualy in the rest. There are organizations that create and promote "Uniform" or "Model" statutes for adoption by states that help ease the patchwork quilt effect of having to deal with the "states rights" aspects of the 10th Amendment, for matters that might or might not have national implications. One of the most successful of these uniform laaws is the Uniform Commerical Code, which, even though it has numerous state variations, has been adiopted in oe form or another in all 50 states.

A uniform or model gender recognition act could go a long way toward beginning to ease the "patchwork quilt."

Unless we can establish a sufficient federal nexus, we might not be able to get something like this done via a litigation approach - though it may well be that at some point, "gender recognition" might be viewed as having a sufficient federal nexus.

If I may gather some wool here - In Article 1 Section 8 of the federal constitution, there are clauses that relate to "general welfare" and to "uniform rules of naturalization."

On the latter, traditionally, "naturalization" has the meaning of "To grant full citizenship to (one of foreign birth)" - but there is also the definition of "To cause to conform to nature."

It might be argued that a federal statute as to the latter sort of "naturalization" might make sense - after all, the scientific studies since 1995 have militated toward the idea that transgender (meaning "transsexual" or "having HBS" for those who don't like the word) people are naturally different and are not correctly assigned the sex we are assigned at birth. Perhaps to make it clar, a bill for a federal Gender Recognition Act could be styled as a federal Gender Naturalization Act to make it lear that Congress would be intending to include "conforming to nature" in its understanding of "naturalization: as written in the Constitution.

Still, one shudders at the current composition of the House of Representatives - with that body controlled by people who have no respect at all for science or nature, it would be unlikely that any sensible legislation will emanate from the federal government until after the 2012 elections, and then only if there is a sizable backlash at the unevolved baboons who are currently gibbering wildly in control of the House.