After years of battle with the state, transgender Illinoisans have won the right to update their birth certificates without undergoing genital surgery.
The American Civil Liberties Union of Illinois (ACLU), which sued the state behalf of three transgender people, announced the win Oct. 19.
The news means that transgender people who had been previously disallowed from updating their certificates will now be far more likely to have the state approve them.
"It confirms our long-held belief that the State never should have involved itself in these private decisions about medical care," said John Knight, LGBT project director of the ACLU, in a statement." We hope that everyone who sought a new birth certificate listing their correct gender from the Department of Public Health in the past—and been denied—will act quickly to apply for a new birth certificate. "
The ACLU sued the Illinois Department of Public Health (IDPH) in May on behalf of Lauren Grey, Victor Williams and Nicholas Guarino, who wanted to change the gender on their birth certificates but had not had the state required genital surgeries to do so.
The suit alleged that the old policy unfairly prevented many transgender people from changing the gender markers on their birth certificates because it required costly, sometimes unwanted surgeries.
A Cook County Circuit Court judge ruled in favor of the three in July, granting them birth certificates and ruling that the state update its policy. At the time of the ruling, however, a new set of rules had been already sent to Illinois Joint Committee on Administrative Rules (JCAR), the legislative committee that oversees policy changes at state agencies.
LGBT activists, who had been working with the IDPH on rewriting the policy internally, believed that the new set of rules would provide a non-surgical option.
However, when none appeared in the document submitted to JCAR, activists had the proposed rules yanked from consideration, fearing that if passed, the rules would permanently mandate genital surgery.
Consequently, the changes ordered were made in court, and IDPH signed an affidavit confirming that they would no longer ban applicants who had not undergone genital surgery.
According to the agreement, the department has more than 50 applicants awaiting new birth certificates. Many of those applicants should be able to update their documents now, the agreement states.
However, activists say significant work remains.
Anthony Martinez, executive director of The Civil Rights Agenda, had been working with other activists on drafting the new rules with IDPH. He said the new changes lack the kind of language that guarantees applicants can change their certificates without undergoing surgeries.
"Although this is broad and can be interpreted in the way we want it to, it can also be interpreted in another way," he said.
The new rules mandate that transgender applicants prove they have had an "operation," which is better than the word "surgery," Martinez said. "Operation" could be interpreted by physicians as hormone replacement therapy, which might allow some who have not had surgery to update their documents. "Surgery," the word used in the old policy, required actual cutting.
Knight shares similar concerns as Martinez, fearing the while the new rules are more lax, surgery may be required in some form.
In addition, he said, the affidavit is not as permanent or enforceable as the ACLU would like. The organization will be working on a more official policy, he said.
"This seems to be a case in which there is never a satisfying resolution," Knight said. "But for now, it is very good news."
