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Sex and the City—A Commentary by Kenji Yoshino

The following commentary was posted on Slate.com on Monday, Dec. 11, 2006.

Sex and the City
New York City Bungles Transgender Equality
By Kenji Yoshino

Last week, New York City's Board of Health scuttled a proposal that would have given people more freedom to change the sex on their birth certificate. The proposed plan would have been the first in the country to permit individuals to declare a gender without making any anatomical changes. But before it could get off the ground, the plan spawned a furor. In failing to anticipate that backlash, the board did a significant disservice to the transgender community.

Under a New York City Health Code provision enacted in 1971, individuals are entitled to a new birth certificate if they change their names and undergo "convertive surgery"—sex-reassignment surgery. The law entitles people to have their original sex erased, not changed; the "M" does not flip to an "F" in the "Sex" box, it is just deleted. From the perspective of transgender activists, this is not ideal, as it leaves individuals without any gender, rather than recognizing their post-transition status. Nonetheless, when the city enacted the statute, it was a frontrunner in the movement for transgender equality.

Now the city has fallen behind other jurisdictions. Most states currently allow transgender people to get new birth certificates if they have had sex-reassignment surgery. The gender classification on the birth certificates of these states is altered, not erased. Only three states—Idaho, Ohio, and Tennessee—have rules that say no change to a certificate will be made even if the applicant has had surgery.

If it had enacted the new proposal, New York City would have again gone where no jurisdiction has before. Under the plan, an individual who is over 18 can change her sex so long as she 1) has changed her name; 2) has "lived in the acquired gender for at least two years"; and 3) has submitted "two affidavits, demonstrating ... full transition to and intended permanence in ... her acquired gender." One affidavit must come from a physician licensed in the United States who has demonstrated at least "two years experience ... related to transgender treatment." The other must come from a mental-health professional with similar experience.

As a New York Times article observed, the new law sought to reflect a better understanding of the transgender community. Many transgender individuals do not have the funds to undergo sex-reassignment surgery, which has been estimated to cost between $10,000 and $20,000. Other people cannot have surgery for health reasons. Perhaps most importantly, many do not feel they need to have surgery to redefine their gender, which they understand to be more than the sum of their physical parts. As City Health Commissioner Dr. Thomas R. Frieden recognized, "Surgery versus nonsurgery can be arbitrary."

All of which sounds enlightened. But the health department, surprisingly, did not anticipate the wave of practical concerns that surfaced when the plan was publicized. These included the worry that the plan would conflict with rules adopted by New York state, or possible new federal rules, concerning identification documents. Reservations were also voiced by institutions like hospitals, jails, and schools, which routinely segregate according to sex. These concerns led the Board of Health to withdraw the proposal, settling instead for a minor amendment permitting individuals to change, rather than to delete, the sex on their certificate after surgery. "This is something we hadn't thought through, frankly," said Dr. Frieden. "What the birth certificate shows does have implications beyond just what the birth certificate shows."

The board's failure to grasp that a sex change on a birth certificate might be more than a changed mark on a piece of paper is startling. It can only be explained by the deference our culture and government give to self-identification. We rightly give broad leeway to individuals to declare their sexual orientation, religion, political affiliation, and even (starting with the 1980 census) race. Sex is different from these other classifications, because we have historically believed it to turn on a stable, biologically based binary. Yet this assumption—that sex is binary and written on the body—is what transgender activists are contesting. It is easy to see how the New York City health board might have gotten carried away by the view that if gender was not biologically determined, it was up to the individual to decide.

This explanation, however, does not excuse the department's apparent failure to engage in the most rudimentary diligence. The panel that came up with the proposal did not have any representatives from the institutions (such as jails, hospitals, or schools) that might have been affected by it. Even so, the department should have been able to anticipate the concerns of such institutions. A moment's reflection suggests that the nontransgender female prisoner who does not want to be housed with a transgender female prisoner who remains anatomically male may have a legitimate interest in the gender of her cellmate.

Another moment of reflection suggests at least four interests that a person or the state might have in another person's gender. First, personal safety: Many communal spaces, like prison cells and public bathrooms, are segregated by sex to protect women, who are generally physically weaker than men, from assault or rape. Second, privacy: As employment-discrimination law recognizes, individuals have an interest in ensuring that their sexual privacy is not invaded by members of the opposite sex in contexts like nursing or medical care. Third, prevention of fraud: Lowering the barriers to sex reassignment increases the incentive for individuals who have no sincere desire to change their sex to do so for opportunistic reasons. Fourth, national security: Permitting individuals to make any alterations to their birth certificates makes those records less useful to Homeland Security.

These interests will not necessarily trump the transgender person's right to self-determination. Indeed, one reason the board should have articulated them more clearly is so they could have been contested. There is little evidence that transgender individuals present a security risk to women, while there is a great deal of evidence that transgender individuals themselves are at immense risk if they are not given accommodations. To the extent that privacy concerns rest on a fear of sexual objectification, they rely on a specious assumption of universal heterosexuality. Fraud seems unlikely when a perpetrator would have to live two years in another gender to effectuate his ends. National security would not be undermined if the original records were sealed to all but those in charge of enforcement.

The New York City health board, then, seems to have engaged in an all-too-common form of pious progressivism, in which good intentions took the place of good analysis. If transgender people ever win more discretion over their own self-definition, it will be because the countervailing considerations have been overcome rather than ignored. In failing to consider those interests, the board failed the group it was ostensibly seeking to protect.

Kenji Yoshino is the Guido Calabresi Professor of Law at Yale Law School and author of the recently published Covering: The Hidden Assault on Our Civil Rights.