ICTLEP Opinion
Name & Sex Correction
In Government Documents
Cooperstown, NY---September 18, 1997
[The International Conference on Transgender Law and Employment Policy
(ICTLEP), Inc., is a non-profit, Texas corporation that has been deemed by
the United States Internal Revenue Service to be a 501-c-3, tax-exempt,
educational corporation. ICTLEP was founded in 1991 and has held six annual
international conferences with legislators, judges, law professors, attorneys
and transgender advocates as speakers and workshop moderators. Each
conference has produced a bound volume of Proceedings which are available in
some university libraries and through the ICTLEP offices. All volumes are
indexed and the index is available on the ICTLEP web pages.]
Background
Transgendered people come basically in two types. One type is a part-timer
or partial gender crossover person. This person is often called a
crossdresser, a transvestite, an effeminate male, a masculine female, a drag
queen and a host of other labels. Essentially this person does not fit
within the extreme bi-polar, socially stereotypical format of an all-male
type of man or an all-female type of woman. With some social pain and
difficulty, this person learns that she or he naturally fits somewhere
between the bi-polar extremes. This person usually expresses a either a
continuously partial blending or a part-time yet complete blending of
socially stereotyped gender bi-polar behaviors or dress based upon past
social expectations and predictions of behavior that are genital based. Each
is an individual in composition, upbringing and presentation.
Essentially, if a child is born with what appears to penal and scrotal
tissue, the doctors predict that this person will grow up and be socialized
to be at the all-male type of man, bi-polar extreme. If the child is born
with what appears to labial and vaginal tissue, the doctors predict that this
person will grow up and be socialized to be at the all-female type of woman,
bi-polar extreme. For the part-timer or partial gender crossover person, the
crossdresser, transvestite, effeminate male, masculine female, or drag queen,
the bi-polar extreme is invalid, and it is cruel for this person to be made
to suffer with throughout their entire lifetime.
One way to conceptualize this crossover behavior is to note the country and
western trend across the United States. Some people in the USA who live on
farms and ranches with real horses and cows dress in a country and western
fashion. They like the clothes, the music and the social expectations.
Others of these same farm and ranch people do not: they do not wear the
clothes, do not like the music and do not like the social expectations.
There are in betweens of every shade and degree. Some of these folks go to
"the city" and go hippy, uniform, leather, yuppie, surfer, hollywood, jock or
whatever in manner of clothes, music and social custom while others remain on
the farm and ranch but are not "country and western."
As the country and western trend has grown in the United States, many
city-fied folks are now going country and western. They do not live on a
farm or ranch and do not own a horse or cow, yet they go to rodeos, wear
country and western clothes, listen to country and western music, go to
country and western bars and dance halls. Some who do not need a truck for
work will even drive a pickup truck so they can feel more country and western
by driving their "cowboy Cadillacs." Some folks do it a lot: some folks do
it a little: some folks make it a way of life. Yet because they are not
living on a farm or a ranch and do not own a horse or a cow, they are also in
a crossover behavior: they are crossdressing just the same and could
conceivably be called "trans-west-ites."
The other type of transgendered person is the full-time gender crossover
person. They are often called transsexuals, transgenderists, pre-op, non-op
and post-ops. The prediction made at their birth by the physician, nurse or
midwife -- whose social expectation of what usually results from pre-natal
brain formation and social training being directly associated with at-birth
genitalia -- is a non-negligent, incorrect prediction for them and must be
corrected.
Multiple biographies, medical texts and glitzy media tell us that the
correction process called transition is extremely difficult at best. Jobs
are lost, families of origin often ostracize or are ashamed, religious guilt
is often applied, divorces and loss of child or grandchild visitation can
result, and embarrassed piers and neighbors are often cruel during the
transition period of gender crossover. In addition, legal hurdles for
documentation correction add another layer of stress.
This person is full-time in her or his gender crossover. Some have genital
surgery as soon as possible, and others wait for a variety of reasons. Some
decide that now, with their completed full-time gender crossover, such
surgery is not important to them (or as in the above conceptualization, they
may have moved to a farm or ranch, but they do not want to own a horse or a
cow). They hire attorneys or follow state procedures to get their legal
documents in order. They take physiologically altering hormones, most of the
effects of which are irreversible without surgical intervention. Some go
through electrolysis, voice therapy, trachea shave, breast reduction surgery,
scalp hair transplant, breast augmentation surgery, hysterectomy, orchiectomy
or metaoidioplasty. At this point, they are all "completed" transsexuals
whether they have had the so-called "operation" (genital alteration surgery)
or not. Only by making the "completion" of transsexualism to be final,
without the precondition of genital alteration surgery, can the transsexual
decide if surgery is really the correct thing for that individual.
It must be noted at this point that the previously mentioned hurdles are
faced only by teenaged and adult transsexuals. That is, once someone is past
puberty those hurdles are then erected. The hypocrisy is that for an infant
born with uncertain genital appearance or who is intersexed with both
genitals appearing completely or in part, a totally blind prediction is made
by the parents and the physician, and surgical intervention is applied to
make parental-physician chosen genitals. The infant's mental imprint is
never consulted. After that the social bi-polar gender extremes are applied
as the child grows. Sometimes the prediction dos not match the brain. Why
such commonplace procedures are deemed socially and medically acceptable at
birth -- with no way of knowing how the child's brain was formed, whereas
when an adult tries to do the same thing for her or his self (or the adult
person for whom the wrong chosen genitals were surgically applied at birth)
it is socially difficult at best and often socially brutal -- is an hypocrisy
and is very cruel to impose.
Changing Documents
One of many hurdles that transgendered people face is the challenge of
getting their legal documents in order. In the United States, they face the
fifty-one jurisdictions of the fifty states and the District of Columbia.
These legal documents are important because they are most often used in
everyday commerce as identification for cashing checks or verifying ownership
of credit cards. Because of immigration laws, these legal documents are now
being used in commerce as identification in job application. Some times
these legal documents are required to obtain a marriage license, but that is
usually on an ad hoc basis depending upon the clerk at the county or parish
where application is made. And if a person wishes to leave the country for
travel, these legal documents are required.
The most common document is the state drivers license (or state
identification card if the person does not drive or is ineligible to drive)
that is routinely issued by the Department of Public Safety (Highway Patrol,
State Police, "Smokeys") in each state. This usually shows the legal name,
address, date of birth, sex, a photo, a magnetic strip (as on a credit card)
and restrictions (eyeglasses and such) and if the person wishes to be an
organ donor in the event of an untimely and sudden death. THIS STATE ISSUED
DOCUMENT IS THE MOST COMMONLY USED IDENTIFICATION WITHIN THE UNITED STATES.
It is used for almost everything including job applications, period!
Change of name for any adult, who does not want to change their name to a
number or to Santa Claus or to some other fictitious or notorious name, is
routinely done without much problem. As ICTLEP Documentation Law Director,
Attorney Melinda Whiteway notes that some states allow for a fee and a form
to be filled out, while others require an order from a state court. The
full-timers, the transsexuals, often do this early in transition or at the
definite beginning of their transition. With this name change permit or
court order, the name on the drivers license is easily changed by the state's
policing agency. However, until recently, the gender marker -- "M" for male
or "F" for female -- remained unchanged on that identification.
In 1992 ICTLEP began the argument that for a transsexual in transition, such
a change of name on the most used form of identification without an
accompanying change of gender identification marker acts as an incomplete
change of name. Consider being John "F" or Cynthia "M". The results of
using a "mixed" identification is a constant form of stress, fear and
harassment when using the "mixed" document for check writing and credit card
use, and often results in not getting hired for a new job. (Singer Johnny
Cash sang a song entitled "A Boy Named Sue" and the lyrics related many
resulting social punishments.) This stress, ICTLEP argued, could lead some
transsexuals to "rush" through their transition and possibly have genital
surgery before they were ready or without being sure. The operative terms
are "could" and "possibly". The problem is that any legal system pressuring
anyone, who as a result has an life-threatening and expensive and possibly
unnecessary surgical procedure just to get a legal document changed to
reflect a genital prediction that most people will not see, is barbaric. As
a result, more jurisdictions are allowing the "full" name change ("full"
meaning to include change of gender identification marker) at the beginning
of the transition.
There is little or no case law here. All of this is being done on an ad hoc
basis. In the administrative states, if an uncooperative clerk is on duty,
the transsexual tries again on another day and in another location. In the
court order states, if an uncooperative judge is found, the name change goes
through without the change in gender identification marker, or a court
transfer is requested or the case is dismissed and refiled as a form of forum
shopping. Transsexual clients simply do not hire this appellate type of work
to be done.
The birth certificate is the second most altered document. (The passport is
not treated herein because it is used by fewer people and usually follows the
results of birth certificate alteration.) There are very few, Ohio being
one, USA jurisdictions that will not change the sex on the birth certificate.
ICTLEP continues to suggest that all completed transsexuals from any state
who want to marry someone who is now of their same sex, should go to Ohio
with their unaltered birth certificates to get "heterosexually" married and
"cram the law down their throats". (Note too, that as homosexual leaders
work for the right to obtain legal same-sex marriage, they continue to ignore
the equal protection argument of same-sex marriage already being legal for
transsexuals. Consider an oppositely genitaled couple that becomes legally
married where one or both later become completed transsexuals. Unless they
file for divorce, they remain legally married. ICTLEP began in 1992 to
encourage such couples to resist physicians' misinformed efforts to force
their divorce prior to or after their transsexual completion.)
During the early days of transsexual sensationalism, many states applied the
Corbett logic to deny correcting the legal, birth certificate sex. After
many court fights in the nineteen sixties and nineteen seventies, most states
have now come around and passed laws allowing for birth certificate
correction. Usually a petition is filed which contains a notarized letter
from a physician that surgical genital alteration is finished, a hearing is
held and the court so orders. This is all post surgical and has become for
the most part no problem in almost all of the states in the United States.
In the case of those born in the Ohio-type states, transsexuals can move to
another state and get a sex correction order. A non-Ohio-type sex correction
state court order that is coupled with an Ohio-type non-correctable birth
certificate will yield a sex corrected USA passport which can then be used in
place of the birth certificate when needed even in an Ohio-type state.
In 1995 ICTLEP began to push for the legality of the completed transsexual
without genital surgery being a precondition. Much of the theory has been
discussed above. But to summarize, why should someone have to choose between
having genital surgery or going back to the previously incorrect and
unlivable gender presentation? In other than prison housing or military
bivouac situations, just how many people will experience someone else's
genitals in their lifetime? That number for most of us is comparatively few.
(And in prison situations, why aren't the transsexuals segregated upon their
request so they will not be raped by either heterosexual rapists or
homosexual rapists? And as to bivouac branches of the military service,
just how much actual combat is done using the genitals as weapons? Further,
to deny non-bivouac branch, military service to transsexuals is a waste of
taxes and talent.)
Why should someone have to choose between having genital surgery or going
back to the previously incorrect and unlivable gender presentation? And if
genital surgery is a precondition to legality, how can a transsexual make a
free and uncoerced decision to have genital alteration surgery? Over the
past two years, with ICTLEP guidance, some completed transsexuals who are
long-term, irreversibly hormonally altered, employed and physician verified,
have gone through the courts with full knowledge of the judges that they have
not had genital alteration surgery and are getting their birth certificate
correction orders.
"Correction", not "change". "Correction" because when the person was born,
the brain was already opposite to the genital prediction. The genital
prediction written on the birth certificate at birth was a non-negligent
error which simply needs to be "corrected". No wholesale "change" is being
made if we are merely "correcting" to the brain. (After all, if parents and
physicians can blindly and sometimes incorrectly do the same to infants, why
can not a mature society allow an adult to be true to their brain?) After
this is done, the person may choose to have genital surgery or may choose to
remain as they are.
As a final note, not every transgendered person in the USA agrees with the
above. Even so, the above is the result of six years of annual intellectual
intercourse with most of the transgender legal and transgender activist minds
in the USA, Canada and England. This is cutting edge. It is also
transgender generated, which is a departure from previous legal thinking on
transgender issues that is written by non-transgender, so-called experts in
the clinical and academic settings. By and large the non-transgender, member
physicians of the transgender dedicated, medical organizations simply remain
uninterested in what the transgender community has to say. Further, it does
not invite transgender lawyers or transgender physicians or transgender
activists to present at its non-transgender attended, medical conventions.
If transgender dedicated, medical organizations really want to help
transgenders, they should institutionally begin listening to the transgender
legal, medical and activist leadership.
Phyllis Randolph Frye
Executive Director
INTERNATIONAL CONFERENCE
ON TRANSGENDER LAW
AND EMPLOYMENT POLICY, INC.
(new addresses, please note)
PO Drawer 1010
Cooperstown, New York 13326 U.S.A.
607-547-4118
ictlephdq@aol.com
America On Line, Keyword "ICTLEP"
web page: www.abmall.com/ictlep
Executive Director, Phyllis Randolph Frye, Esq, prfrye@aol.com
Gender Rights Director, Sharon Stuart/Tom Heitz, Esq, stucomone@aol.com
Documentation Law Director, Melinda Whiteway, Esq, melindamw@aol.com
Family Law Director, Spencer Bergstedt, Esq, mstrspence@aol.com
Health Law Director, Shannon Minter, Esq., shanminter@aol.com
Treasurer Director, Sandy Kasten, Esq, aldebke@aol.com
Employer Education Moderator, Diana Cicotello, dainna@aol.com
Imprisonment Law Moderator, Raymond Hill, 107 S.Ct. 2502, rayhill@iah.com
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