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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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