In May, I reported on an ACLU lawsuit against 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.
That lawsuit has paid off, and the three ACLU of Illinois clients soon will receive new birth certificates from the Division of Vital Records of the Illinois Department of Public Health that reflect their correct gender. A Cook County Circuit Court Judge ordered this remedy last week. Lauren Grey (pictured on right), Victor Williams and Nicholas Guarino all will receive new birth certificates under the order.
However, the lawsuit's result comes after a very unusual defense by the State of Illinois.
An Unusual Defense, And Musing About Good Faith
According to the ACLU of Illinois website, rather than file a response to the ACLU's lawsuit, the State of Illinois moved to stay the lawsuit, meaning that it be put on hold, pending legislative developments. The State argued that the plaintiffs ought to wait around until a proposed new rule to be considered by a legislative committee in September will not require genital surgery in order to receive a new birth certificate. This is an unusual defense -- the legislature might possibly act, maybe, we're not sure, and they might not discriminate against you, we think. I have another name for it, but I don't use it in polite company.
Judge Michael Heyman, nobody's fool, suggested that the State show its good faith in living up to its oral assurances by granting new, accurate birth certificates to the three named plaintiffs in the ACLU's case, all of whom have waited for years for these basic identity documents.
Apparently, the State wasn't willing to put its money where its mouth is, because the ACLU website reports that the judge had to order them to do it. "After a subsequent meeting in chambers, the Judge ordered the State to issue the new birth certificates. Illinois officials said they would not challenge the order." How gracious of them.
John Knight, Director of the Lesbian, Gay, Bisexual & Transgender Project at the ACLU of Illinois, noted that the State of Illinois has not been operating in good faith on this issue for quite a long time:
"...there has been no change in the rule as yet - and even the proposed rule includes no clear assurance that the state will not continue to require transgender individuals to undergo unnecessary surgeries. The court's ruling granting birth certificates applies only to our three clients. We continue to believe that there must be a written agreement or court order - enforceable by law - preventing the state from continuing to require genital surgery before transgender individuals can obtain an accurate birth certificate. The state has given our clients assurance before that they would address this unconstitutional practice, only to return to it after some time passes. It is essential that we have an enforceable agreement to prevent that from happening again."
I trust that the ACLU will continue to follow up and to demand a ruling in favor of all trans people born in Illinois. The idea of a stay while some legislative committee plays monkeyshines is ridiculous.
A Terminology Note, And A Deeper Question
I note that the ACLU of Illinois website says "State Issues New Birth Certificates to Three Transgendered ACLU Clients."
The usual formulation followed by most in the community is to say "transgender clients," using a noun as an adjective, as one would say "gay man" or "lesbian woman". No one would refer to a "gayed man," well, at least not anyone intelligent. While there are a few well-known dissenters, such as the estimable Pauline Park, most in the community see the formulation "transgendered person" as suggesting something untoward, perhaps as if the person made a lifestyle choice. Joanne Herman makes the argument well in the Huffington Post.
She says "I have found that whenever "transgendered" is being used, it is usually by a person who is not transgender, or by an organization wanting to be inclusive of transgender people, but not yet having a transgender person involved." I don't know if that's true of the ACLU of Illinois. Maybe they just love Pauline Park as much as I do. I do know that the ACLU of Illinois failed to connect with the people in the trans community there who were working diligently on birth certificate policies, as I reported in May. The miscued terminology might be something for the ACLU to think about.
Still, the ACLU of Illinois deserves to be commended for this result, and the time and energy they spent on behalf of our community. Thank you, ACLU. After seeing several major efforts by the ACLU on behalf of trans people, such as the recent suit in Alaska, I'm thinking it's time for me to become a member, pony up the 35 bucks. You can join here.
UPDATE: Edwin Yohnka, Director of Communications and Public Policy for the American Civil Liberties Union of Illinois responded to me regarding the issue of "transgendered" v. "transgender." He noted that he recognized the error, corrected it and apologizes deeply for the mistake.