In a move that occasioned the city health commissioner, Dr. Thomas R. Frieden, to acknowledge "we were at fault," the Board of Health Tuesday abruptly pulled back from a proposal that would have allowed New York City-born transgendered individuals who have not undergone sex-reassignment surgery but nonetheless provide significant medical certification of their transition to change the gender designation on their birth certificate.
Instead, the board adopted a far narrower measure that will allow those who do undergo such surgery to change their designation from M to F or vice versa. Until now, they could merely remove their original gender marker but not substitute the other, leaving the category blank on the revised birth certificate.
In an interview with Gay City News, Frieden declined to comment on whether the change in course reflected any input from the police department, city corrections officials, or the federal Department of Homeland Security regarding the tightening of official standards for personal identification in the wake of the 9/11 attacks.
The climate of increased security concerns, however, makes the birth certificate issue even more critical for individuals who have completed a gender transition and need to receive basic personal identification such as a driver's license or a passport.
The original proposal put forward by the Department of Health and Mental Hygiene was the result of a lengthy task force process that included city officials, medical practitioners, and transgender advocates, and received overwhelmingly positive response during a public comment period that concluded with a hearing on October 30. In 139 pages of input published on the health department Web site, all but seven pages endorsed the approach, often in significant detail, even though many urged that even greater flexibility be incorporated into the regulation change.
The negative comments on the Web site were largely brief e-mail correspondences, most with harshly transphobic comments. "Are you guys losing all sense of moral values?" read one. "Modern day Sodom and Gomorra-May God forgive you."
"If I wish to call myself a dog, I suppose you people would allow that too?" was the comment from another correspondent.
"I am befuddled and wonder if the inmates are now running the asylum," read a third.
In explaining its reversal in direction, Frieden's department, in a written release, said, "After reviewing that plan and input received during the public comments period, the health department concluded that the proposal would have broader societal ramifications than anticipated. Besides being a key element of identity, gender has important implications for many societal institutions that need to segregate people by sex. These include hospitals, schools, and jails, as well as some workplaces."
Citing those issues-which have been central to the debate over transgender rights for years-raised more questions than it answered.
First, it left largely unexplained how the department could have put forward a proposal, received nearly unanimous public comment essentially saying it reflected a good start but that more needed to be done, and then settled on a final plan well short of what it originally put on the table.
"Citing unspecified 'ramifications' of the proposed policy, the Board of Health has missed an opportunity to help transgender people move from the margins to the mainstream," said Michael Silverman, executive director of the Transgender Legal Defense & Education Fund, in a written statement. "For many transgender people, sex-reassignment surgery is a financial impossibility. For others, it's medically inappropriate. And still others choose not to undergo surgery for a variety of personal reasons."
"I'm extremely disappointed that the Board rejected the widely supported recommendations in such a cursory manner," said Paisley Currah, director of the Transgender Law & Policy Institute. "The recommendations were the work product of a dedicated advisory committee and were proposed after two years research and consideration. It's simply indefensible that nonsensical reasons blamed on identity security were cited as the key reason for rejecting the recommendations."
"I'm surprised and very disappointed," said Bonnie Scott Jones, a staff attorney at Lambda Legal, who had offered a detailed response, urging greater flexibility regarding medical and mental health certification of a gender transition, during the public comment period.
Asked whether transgender advocates were justified in feeling as though the ground rules for public comment and negotiation of a solution had been changed on them, Frieden said, "That's a perception that could well be out there."
He insisted, however, that the Board of Health was in fact considering two proposals-one to allow for a switch in gender designation on the birth certificate and the other to modify the criteria for what constituted a gender change. The proposal considered at the October 30 hearing would have modified the requirement that sex reassignment be completed to a less prescriptive formula that relied on a medical doctor and a mental health professional certifying that unspecified medical and psychotherapeutic treatments have been undergone as part of a gender transition.
While acknowledging the clear preferences uncovered in the public hearing process and lauding the work of those who advised the department in developing the original proposal, Frieden said, "We were at fault" for not consulting with other parties such as law enforcement, hospital administrators, and schools that have requirements for sex-segregated facilities, including cells, patient wards and rooms, and showers.
"The advisors we had we were wonderful but we received input from a fairly narrow range of interests," he said.
Asked why the health department-regarding the sensitive sex-segregation issues that concerned it-could not look to the guidelines established by the city's Human Rights Commission when it adopted a code for enforcing the 2002 amendment to city law outlawing gender identity or expression-based discrimination, Frieden said, "A certificate and human rights law are very different and should not be conflated."
Pressed to clarify what that meant, the commissioner said, "In the city law, whatever gender you consider yourself to be you are." He did not specifically address how the lack of a changed birth certificate might limit the ability of transgendered individuals to access the protections guaranteed under the 2002 law, except to say that their rights are not defined by their birth documentation.
The concerns about sex-segregated facilities-bathrooms and showers in particular-have consistantly percolated at the surface of the debate, both about trans rights and the effort by then-President Bill Clinton to allow open service by gays and lesbian soldiers prior to falling back on the Don't Ask, Don't Tell policy. In a number of recent controversies, trans people have been arrested for using public bathrooms, including those at Grand Central Terminal, intended for persons of their post-transition gender.
Yet, Frieden could not explain why the health department came to this concern so late in the game, after several years of discussion.
"Hindsight is always easier," he said.
In addition to the concerns cited over sex segregation, the department's press release also alluded to "forthcoming federal regulations which are anticipated in 2007 and which are anticipated to include provisions on birth-certificate security, death-birth matching, and verification of driver's license applications with birth certificates." An internal health department memorandum, provided to Gay City News by the city, made specific mention of draft regulations due under the Real ID Act of 2005, and the importance of birth certificates to the federal government signaled by the Intelligence Reform and Terrorism Prevention Act of 2004.
Asked whether the health department had received input on the earlier proposal after the October 30 hearing from the NYPD, city corrections officials, or the U.S. Homeland Security Department (but which had not been entered into the public record), Frieden momentarily conferred with aides with him at the time of the telephone interview and then said, "No comment."
Despite the reversal this week, trans activists vowed to keep pressing for change and voiced optimism about eventually prevailing.
"We are certainly not giving up," said Z Gabriel Arkles, a staff attorney at the Sylvia Rivera Law Project, which does advocacy work on behalf of the transgender community. "We believe the department is taking us seriously and it's possible to get a victory in this area."
Pauline Park, chair of the New York Association for Gender Rights Advocacy, said, "NYAGRA is more eager than ever to meet with the department of health."
In fact, Park and Transgender Legal Defense's Silverman were at best lukewarm about the proposal considered in October, feeling that it embodied a medicalized perspective of gender variance that assumes that it is a pathology and was at odds with the gender self-definition and expression assumptions of the 2002 transgender rights law. Silverman, in his release this week, said that the proposal that had been rejected included "race and class disparities," a reflection of his view that many would be unable to access the medical certification required.
"On balance, adoption of the policy as written was not a significant advance for the community," Park said, suggesting that if advocates are able to reopen discussion of the issue with health officials, she for one will be pushing for far more than the city ever contemplated.
City Council Speaker Christine sent the Board of Health a statement supporting the proposal originally put forward, with provision for some greater flexibility.
In a written reply to a Gay City News query, Quinn said, "I am very disappointed at the Board of Health's decision to withdraw its transgender proposal, and have begun conversations with the Department of Health and Mental Hygiene to better understand their rationale." She added she hoped "to move this issue forward."