May 2007

A common question on a variety of forms is:  “What sex are you?”

“Most people don’t think about that question, but transgendered people constantly have to think about that question,” said Pauline Park, a transgender activist and co-founder of the New York Association for Gender Rights Advocacy. “For them it’s not an easy answer.”

A transgendered person is someone whose “identity does not conform unambiguously to conventional notions of male or female gender, but combines or moves between these,” according to the Oxford English Dictionary.  

Last year, the New York City Health Department, upon suggestion from three well-known transgender activists — Dean Spade, Carrie Davis and Paisley Currah — proposed updating Article 207 of the New York City Health Code.  Article 207 stated that in order to change gender on a person’s birth certificate one must have completed sexual reassignment surgery  and lived in that gender for two years. The Health Department’s proposal to update Article 207 suggested that people should be allowed to change their sex on their birth certificates without obtaining sexual reassignment surgery (SRS can cost up to $17,000 according to Miami-based doctor Harold Reed). 

Advocates had hoped that if the proposal passed it would  alleviate discrimination and difficulty for the purported tens of thousands of transgendered people in New York. (The new article would have also made New York City the first place  in the United States  where people could change their gender on their birth certificate without having sexual reassignment surgery.)  

In 2005, the Department of Health convened an external advisory committee of experts, including physicians, surgeons, psychologists, attorneys, and policy experts. One panelist, Dr. Arthur Zitrin, said, “I knew that it was important for people to be able to change sex without having surgery because most people cannot even afford that surgery.”

“Surgery versus nonsurgery can be arbitrary,” said Dr. Thomas R. Frieden, the city’s health commissioner. “Somebody with a beard may have had breast-implant surgery. It’s the permanence of the transition that matters most.”

And on September 26, 2006, the Department of Health presented the proposed new regulation to the Board of Health upon advisement from the advisory committee.

Not more than a week later, on Nov. 7, the New York Times published an article  by Damien Cave that featured the Department of Health’s proposal.

A media flurry quickly followed the Times' article and brought attention and debate to a proposal that otherwise may have been easily passed over.

Almost a month later, on Dec. 5, the Health Department announced to the Board of Health that it was retracting its proposal eventhough the Board of Health unanimously approved the proposed regulation for notice on December 7th.

“In withdrawing the proposal, the Health Department  acknowledged forthcoming federal regulations which are anticipated to include provisions on birth-certificate security,” said Erica Lessem of  the Office of Communications in the Department of Health.

But activists, like  Pauline Park, are skeptical about the Department of Health's explanation. The federal laws, in question, include the Real ID Act and the Intelligence Reform and Terrorism Prevention Act, both federal statutes that had been proposed long before the Department of Health's proposal was conceived. Both federal laws are in fact anticipated to include provisions on birth-certificate security, death-birth matching, and verification of driver's license applications with birth certificates (which will most likely make it harder for the transgender community, according to Park).

Beyond key federal statutes the Health Department’s panel recognized that gender changes on birth certificates may have created complications in many social settings, including  hospital wards, prisons and public bathrooms.  

But Park is adamant that the withdrawal of the proposal has more to do with the mayor’s political ambitions.

“Friedman had basically signed off because Damien Cave made the proposal seem very radical so the impact was pretty negative,” Park said. “I’m positive that the second this came before the mayor’s desk is the second this proposal was quashed.”

The Bloomberg administration has vetoed an economic benefits law and the Dignity for All Students Act (DASA), which would help the transgender community.

In the end, Article 207 was updated to national standards, allowing transgenders to change their sex after completing sexual reassignment surgery. And the New York Association for Gender Rights Advocacy and the Transgender Legal and Education Fund still promise to push forward in the fight.