A new policy adopted by the Illinois Department of Public Health's Division of Vital Records makes it easier for transgender people to receive birth certificates that accurately reflect their gender identity.
Previously, trans people who had sex-reassignment surgery ( SRS ) were only able to have that surgery recognized if it was performed by a U.S.-licensed surgeon. With the policy change, people who travel overseas for surgery—for reasons of cost or to seek surgeons with greater expertise—will be able to obtain birth certificates reflecting the fact of their SRS no matter where it was performed.
The change came as the Division of Vital Records issued new birth certificates to two transwomen who had overseas surgeries. It also issued a new birth certificate to a transman who, under the previous policy, would have been required to have medically unnecessary surgery.
"I am a woman and now I have a birth certificate that reflects this reality," said Victoria Kirk, one of the beneficiaries of the policy change, said in a statement.
Kirk was a plaintiff in a lawsuit filed by the American Civil Liberties Union ( ACLU ) of Illinois. According to the ACLU, Illinois had for years allowed individuals to change the gender marker on their birth certificates regardless of where SRS took place. Earlier this decade, the state reversed its policy and began interpreting the relevant law to require that individuals obtain treatment from U.S.-licensed surgeons only.
The statute pertinent to the case requires " [ a ] n affidavit by a physician that he has performed an operation on a person, and that by reason of the operation the sex designation on such person's birth record should be changed."
Under the newest policy, said ACLU attorney John Knight, individuals seeking a change in the gender marker on their birth certificates need to file two affadavits with the state if they had surgery overseas: one from the doctor who performed the surgery, and one from a U.S.-licensed physician able to "confirm" that the surgery took place.
"This is not necessarily the policy we would have asked for," Knight told Windy City Times, noting that the initial interpretation of the law—the one in place until several years ago—required only one affadavit from the
attending surgeon, no matter where that surgeon was located. "But this is a huge improvement over what is was."
The change, he said, "puts [ Illinois ] a little more back in the norm," where previously the state "was alone in having that kind of requirement."
Cynthia Richards, president of Illinois Gender Advocates, called the policy change "a huge step forward for the state of Illinois."
Richards said that while Illinois is generally progressive when it comes to policies protecting the rights of trans people, the surgeon-licensing requirement was "the sore thumb sticking out. It was a point of frustration."
After several years of trying to persuade the state to change policy, the ACLU filed suit in January 2009 on behalf of several plaintiffs, including Kirk. Now that the policy has been changed, the suit is expected to be dismissed within the month.
Also included in the case was transman Riley Johnson. In 2004, according to the ACLU, Illinois began requiring transmen to obtain genital surgery in order to obtain new birth cerficates—surgery "for which the vast majority of applicants have no medical need, nor a desire to complete." Although no official rules have been released, with the issuance of a new birth certificate to Johnson, this policy has now apparently been reversed.
Attorney Knight said, though, that the details of the new policy remain to be seen, and that he does not know when the state will release the new rules: "We're going to wait to see what comes out of that," Knight said.
Richards said that her group, too, is eager to see the specific rules laid down by the Division of Vital Records. "We are currently very curious to see just what the language will be for the new policies," Richards said. "We're very encouraged that the ACLU has made such inroads."
