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Legal Issues for transgender Women
Disclaimer: This is legal talk, not legal advice. Laws vary by
state, and some of the information discussed on this page may not be applicable
in your case. It is up to you to confirm any information herein by doing your
own research.
Contents:
Court order for name change
Social Security Card
Driver's License
Birth Certificate
Passport
Other resources
Recommended overviews:
The Transgender Law and Policy page has up-to-date listings of
all laws in the U.S. that are transgender-inclusive. In addition, it has resources
and information on legal issues affecting transgender and gender variant
people in the U.S. Overview and regular updates on jurisdictions with trans-inclusive
non-discrimination laws. Intended for activists, policymakers, and academics.
Lawyer Shannon Minter has also compiled excellent information available on
the National Center for Lesbian Rights Page.
Special note to young women
Many young women are reluctant to take these legal steps because they don't
want to deal with the hassle, or because they find official acknowledgement
of their wrongly indentified gender to be painfully embarassing. Making these
legal changes are essential for things like marriage and employment.
If you want to live a quiet happy life in mainstream society, these steps
are absolutely necessary. In fact, failure to do them when you are young could
lead to much worse problems later. Women in several states have been dragged
into court and put on television in highly publicized landmark court cases
because they didn't bother to take care of the legal documents we need in
order to protect our rights as women in the eyes of the law.
An ounce of prevention is worth a ton of cure in this case. Get your legal
documents taken care of as soon as possible. You'll thank me later!
Documentation changes
Court Order For Name
Change (expanded)
I recommend getting a court order for name change before anything else. You
will not run into any problems if you get this document first, since everyone
accepts it as valid proof. Other documents might not be adequate in some cases.
This has been expanded and moved to its own special section.
Social Security Card
After getting a court order for name
change, I would recommend getting your Social Security card changed next.
This section assumes you already have a Social Security number and are merely
changing the name and (hopefully) sex. If not, this may not apply to you.
It usually takes about a week to get a new card, so the sooner you get going,
the better. Some states require a Social Security card for a driver's license
name change, but in others (such as Illinois) you can get a driver's license
changed with nothing more than your old license and an acceptable document
indicating your name change (such as a court order).
You will probably need your Social Security switched over to change any employment
and financial information. In addition, my employer won't let me switch any
work documents until I have my new card actually in my possession.
The process is simple.
1. Fill out the form (Form SS-5)
This form is available at any Social Security branch office. To find the
nearest office, call 1-800-772-1213 (7 am to 7 pm). They also have a cool
search page at their website:
http://www.ssa.gov
It lets you type in your zip code and shows a map with your nearest office
marked, as well as its address and hours.
There is also a downloadable copy of Form SS-5 at the Social Security website:
http://www.ssa.gov/replace_sscard.html
It's a valid copy of the form, acceptable for official use. It's a .pdf
file, which can be opened in Adobe Acrobat. This can then be printed and
filled out at home, then mailed or taken to your branch office.
You will need evidence showing your old and new names. Social Security
requires original documents or certified copies made by the county clerk
or other official whose duty it is to keep the records (hence the extra
copies I got). Photocopies and notarized copies are not acceptable.
Common acceptable documents include:
- Court order for name change (this is my recommendation)
- Clinic, doctor, or hospital records (You might be able to use a letter
from your therapist, for example, but to be safe and official, get the
court order.)
- Driver's license (if you can do this prior to Social Security in your
state)
The following are usually used to establish former identity:
- School ID card, record, or report card
- Marriage or divorce record
- Military records
- Adoption records
- Church membership or confirmation record
- Health insurance card
- Insurance policy
- U.S. government or state government employee ID card
- U.S. passport
At their site they say: "We will NOT accept a birth certificate or
hospital record as proof of your identity. We will accept other documents
if they have enough information to identify you. Remember, we must see original
documents or copies certified by the county clerk or other official who
keeps the record."
You write in your chosen name and below that your name at birth. If you
have a certified copy of your court order, you can just mail it in. Otherwise,
you may need to present original documentation or certified copies in person.
2. Wait for your new card to come in the mail
The whole thing took one hour, then eight days before it came, and
cost nothing.
I wanted to cover an issue you do not currently address. Stealth and your
Social Security Number. Maximum stealth would require a new ss# as well
as new first and last names. Most people are unable to change their ss#.
Even if first & last names are changed, using the same ss# can lead
to discrepancies that can come back to haunt you years later. Let me share
just a couple of ways this has happened to a friend of mine. When opening
a new bank account, the banks run a social security trace. This a background
check to see if other names are or have been associated with your number.
Immediately after opening a new checking account my friend's bank was putting
extended holds on her deposits & treating her weird. She assumes that
the bank thought she might try some kind of theft like writing bad/fraudulent
checks. Another example, she recently had lab results come back to her new
physician for a minor skin biopsy. The lab report that came back had incorrect
name and sex information identifying her as a male, since they had a preexisting
entry for that ss# already in their system from years earlier using information
from another doctor. Both the bank and the doctor's office kept the discrepancy
to themselves, but they treated her differently from that point onward.
Obviously this is not desirable.
If you can't change your number, then you can minimize using it. I have
noticed that preventative measures to prevent identity theft simultaneously
maximize your privacy and minimize your history outing you. As identity
theft is a generally known problem, any request you make that is consistent
with prevention will be considered reasonable. Restrict your ss# to a "need
to know" basis. Only your employer, accountant, bank, investment broker,
and IRS need your ss#. Insist that all others use an alternative number
for identification or enrollment. Don't write or print your number on checks.
Do not allow your number to be used in on your insurance card or student
id card. Insist that insurance companies and schools to use an alternate
number for identifying you.
Driver's License
See my expanded section on how to
change your driver's license in your state.
Note that some states are now linking their records with Social Security
records, so you may need to revise your Social Security information before
you can get a license or state ID changed.
States differ, so you will have to contact your local bureau to find out
what procedure and identification is required in your case. You will probably
need to present some or all of the following ID:
- Birth certificate (old name)
- Social security card (new name)
- Two forms of other ID, showing your new name, such as utility bills or
medical records.
- While my local bureau did not give me a list of acceptable ID, I presume
they would accept the same documents as Social Security.
The following is from from Common Law Name Changes for Transsexuals,
Copyleft © 1995 Gary Bowen. My name and gender were changed concurrently on
my Social Security Card and Driver's License without any problems. If you
have trouble, please refer to the information below:
How to Change Gender
You will have to decide if you can live with the 'inappropriate' gender
marked on ID. This is not so bad, clerks rarely check ID for check writing,
all they want is your driver's license number. I went four years without
clerk's noticing that my address on my checks was different than the address
on my driver's license. To circumvent this, have your driver's license
number printed on your checks, then the clerks will only check that your
picture matches your face, and that will be that.
However, if you are determined to attempt a common law gender change,
you are entering murky waters, which will be both a boon and a risk. Social
Security has no established procedure for gender changes, so you will
be at the mercy of whomever processes your name change form. However-there's
no rule against it, either.
Social Security Gender Change
When you fill out the application for name change, mark the box of your
choice for gender. You can be brave and hope they process it through without
bothering to cross check the gender with the old records (it might happen),
or you can provide them with an explanation. Add a note to the application
telling them that you are a transsexual in transition and that you want
your new gender listed in the record. Supply the therapist's number for
them to call if they need confirmation or have questions. Be sure and
give your therapist a WRITTEN statement of permission to discuss your
case for this purpose. A verbal permission is not adequate, should your
therapist be challenged on it. This is for your therapist's protection;
your medical records are private and they have no right to discuss them
without your permission.
Assuming that Social Security accepts your gender change, the Social
Security records can be used to change all subsequent records. If Social
Security does not accept your gender change, you can ask your therapist
to intervene upon your behalf. Other transsexuals have made their gender
change with exactly the information provided here, if you are denied,
ask your local support group for help. Beating them over the head with
the fact that they have approved other people with the same level of documentation
will prove a powerful argument compelling them to approve you too.
However, you can perform a gender change another way: through bodily
evidence. Simply allow enough time for the hormones to alter your face
to the gender you desire, then go into the Social Security office (or
whatever agency you need ID from), and say, "Excuse me, there seems
to be a mistake on my records..."
Changing your Driver's License and Social Security Card, in combination with
your court order for name change, should be enough to switch over most official
documents you'll need for day-to-day living. The only tricky thing may be
if you plan to leave the United States: most people have found switching the
name and (especially) sex on their passport and birth certificate to be more
strict. Many have needed confirmation of SRS from a doctor.
Special note to young women:
A reader sent this good advice along on limiting the use of your Social Security
number before and after transition:
I wanted to cover an issue you do not currently address. Stealth and your
Social Security Number. Maximum stealth would require a new ss# as well as
new first and last names. Most people are unable to change their ss#.
Even if first & last names are changed, using the same ss# can lead to
discrepancies that can come back to haunt you years later. Let me share just
a couple of ways this has happened to a friend of mine. When opening a new
bank account, the banks run a social security trace. This a background check
to see if other names are or have been associated with your number. Immediately
after opening a new checking account my friend's bank was putting extended
holds on her deposits & treating her weird. She assumes that the bank
thought she might try some kind of theft like writing bad/fraudulent checks.
Another example, she recently had lab results come back to her new physician
for a minor skin biopsy. The lab report that came back had incorrect name
and sex information identifying her as a male, since they had a preexisting
entry for that ss# already in their system from years earlier using information
from another doctor. Both the bank and the doctor's office kept the discrepancy
to themselves, but they treated her differently from that point onward. Obviously
this is not desirable.
If you can't change your number, then you can minimize using it. I have noticed
that preventative measures to prevent identity theft simultaneously maximize
your privacy and minimize your history outing you. As identity theft is a
generally known problem, any request you make that is consistent with prevention
will be considered reasonable. Restrict your ss# to a "need to know"
basis. Only your employer, accountant, bank, investment broker, and IRS need
your ss#. Insist that all others use an alternative number for identification
or enrollment. Don't write or print your number on checks. Do not allow your
number to be used in on your insurance card or student id card. Insist that
insurance companies and schools to use an alternate number for identifying
you.
Birth Certificate
This varies by state. If you don't live in the state where you were born,
you may need to have a court order performed in your current state of residence
and then have it sent to you birth state. Becky Allison has a list of state by state
information.
See also my expended section on changing
your birth certificate.
I strongly urge you to amend your birth certificate as soon as you are done
with SRS.
- It's fresh on your mind
- The necessary documents will be handy.
- After SRS, you get sort of burned out with transition matters, and it's
easy to put it off for a long time.
- The laws in your birth state can change at any time, and you might miss
your chance to have the record impounded.
Here's why you should do it:
- Marriage and other legal documents. Some TS women have run into legal
troubles when trying to get a marriage license, or even long after they've
been married because of discrepancies on their birth certificate, especially
sex designation. In one Texas case, a widow was denied the right to collect
damages in her husband's wrongful death suit, and her unchanged out of state
birth certificate was used as evidence against her.
- Travel: if you do not have a U.S. Passport, it is sometimes possible to
travel to certain parts of the world using an original birth certificate.
If you plan to do this, your name and sex should match your birth certificate.
- Stealth/privacy: One less record of your old name floating around. For
those who are living stealth, it's possible that this information can come
back to haunt them.
If it's available in your state of birth, request
that your record is impounded or sealed and a new record is created.
Instructions (a general guide-- laws vary by state)
1. Have vaginoplasty or orchiectomy.
(Orchiectomy alone may not always work for getting documents changed. Your
letter from your surgeon must state that you had irreversible genital surgery.)
2. Get a signed, dated, notarized letter from your surgeon
confirming the date of the procedure. The surgeon should include your name,
date of birth, date of surgery, type of surgery (male-to-female), and where
it was performed.
3. Obtain your original birth certificate or a certified copy.
4. Obtain a certified copy of your Court Order for Name Change
5. Write a letter to the Department of Health and Human Services in your
birth state (see Becky's state by state
information). Explain that you are transsexual and seek to amend your
name and sex and have the original birth record impounded. They will send
you instructions, or possibly a form which can be used by any state to order
information on your birth record to be changed. Remember, your state may have
their own rules as to what they are authorized to order another state to change
on a birth record. You will need to check state law yourself or contact your
courthouse or legal advisor. It's a good idea to obtain written
instructions from your birth state. I needed to show my instructions
to the judge so that she understood what was being requested.
6. Fill out all forms exactly as specified, making sure to
specify that the birth certificate should be impounded and a new birth certificate
should be created for the registrant.
7. If your current state of residence allows ordering the record in your
birth state to be impounded, you can get the order certified where you live
(otherwise, you should see about returning to your birth state and doing it
in person). Go to your county courthouse, where the Clerk of Court or Deputy
can assist you in preparing the proper forms. It is very likely you will have
to pay a fee, and it is also likely you will need to appear before a judge.
The cost for the appearance will vary significantly: I paid $221 in Illinois.
8. Appear in court. You can appear in court for yourself (pro se), meaning
you are your own lawyer. It's easy if you have all the forms filled out correctly.
You should consider having a lawyer or TS friend who has been through this
help you if you are uncomfortable filling out forms yourself. You will probably
have to fill out a cover sheet, a Complaint, and an Order that the judge will
sign.
Everyone I encountered at my local courthouse, including the judge, had never
done one of these before, and they process almost 20,000 cases a year. I recommend
coming in with all of the necessary information, including the written instructions
you received from your state. Below is the text of the Complaint and Order
I wrote out by hand, which worked fine.
Complaint
I, [full name], seek to amend the name and sex on my birth certificate
to reflect my Court Order for Name Change and to reflect my surgical sex
reassignment to female. I also seek to have the original birth record
impounded as allowed under [birth state] law. I ask the Court to grant
relief in this complaint by ordering the Clerk of Court to certify the
[name of form or order required by birth state].
Order
In this case which came today, Plaintiff testified under oath in the
complaint. Relief in this complaint was granted after presentation of
a notarized letter dated [date on letter] from [SRS surgeon], M.D., confirming
that he performed surgical sex change on the Plaintiff on [SRS date].
The [birth state] Department of Health and Family Services is directed,
upon receipt of appropriate fees, to make the following changes on this
birth record:
- Amend the name to read [new name]
- Amend sex to read female
- Impound the old record and create a new birth certificate for the
registrant.
The Clerk of Court is so ordered to certify the Order To Change Name
& Sex On Birth Certificate Due To Surgical Sex-Change Procedure.
Again, the wording will depend on your state's laws, and your birth state's
requirements. Be sure to have someone in the County Court offices look over
all your materials before you appear in front of a judge.
9. Return the form imprinted with the court seal along with any required
fees and documents. I recommend you not trust this document to the standard
U.S. Mail-- you should send this through an express service so it can be tracked
in the event of its loss.
10. Enjoy your new birth certificate!
Passport (expanded)
To get your name and sex changed on a valid US passport, you will need a court-ordered
name change and a notarized letter from your surgeon showing you have had
sex reassignment surgery.
For more, including important steps you must take, see the passport page.
Other resources
LINK: Deakin Law Review publishes thematic issue on transsexualism
LINK: Federal law status for sex discrimination and gender variance (Harvard Journal of Law and Gender 2005) [PDF: requires reader]
Recent Scholarship
An Interdisciplinary and Cross-Cultural Analysis of Binary Sex Categories, in TRANSGENDER RIGHTS: HISTORY, POLITICS, AND LAW (Paisley Currah & Shannon Minter, eds., Univ. of Minnesota Press, forthcoming 2005)
Gender Nonconformity: A Comprehensive Theoretical Approach to Break Down the Maternal Wall and End Discrimination Against Gender Benders :Commentary on Keynote Speaker Joan Williams's "Beyond the Glass Ceiling," 26 T. JEFFERSON L. REV. 37 (2003)
Legal Aspects of Gender Assignment, 13 ENDOCRINOLOGIST 276 (2003)
Definitional Dilemmas: Male or Female? Black or White? The Law's Failure to Recognize Intersexuals and Multiracials (ch. 5), in GENDER NONCONFORMITY, RACE, AND SEXUALITY: CHARTING THE CONNECTIONS 102 (Toni Lester, ed., Madison: Wisconsin Univ. Press, 2002)
Deconstructing Binary Race and Sex Categories: A Comparison of the Multiracial and transgender Experience, 39 SAN DIEGO L. REV. 919 (2002)
When Is a Man a Man and When Is a Woman a Woman?, 52 FLA. L. REV. 745 (2000)
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