The city health department's sudden retreat last week from it plan to expand opportunities for New York-born transgendered people who have completed a gender transition to update their birth certificate is an unfortunate error in judgment.
It is wrong on the underlying public policy question and flies in the face of city law aimed at ending anti-trans discrimination; it is a breach of trust after a public comment period that generated nearly unanimous support for the city amending its policy (and in fact doing even more than the health department originally proposed); and it leaves unanswered the question of whether the city buckled in the face of misguided security concerns raised secretly by law enforcement interests here or in Washington.
Dr. Thomas R. Frieden, the commissioner of the Department of Health and
Mental Hygiene, has acknowledged that the process could have been managed better, but he owes the public full disclosure on what transpired, and the transgender community can rightfully demand a re-examination of the outcome.
The birth certificate proposal originated in the health department, after a long period of consultation with transgender advocates and medical and mental health professionals who work with them. Until now, only those who had completed gender reassignment surgery-which by no means is the only test of gender transition-were allowed to alter their birth certificates, and then only by removing the sex designation listed, not by substituting their new gender. That category on the changed certificate was left blank.
The original health department proposal-the subject of a full public hearing in late October-would have allowed gender-variant New Yorkers who provide fairly stringent evidence of a completed transition from both medical and psychotherapeutic practitioners to change their gender designation from M to F or vice versa. The option would not have allowed for willy-nilly changes in a birth certificate. In essence, the professional documentation required could only have come after either surgery or hormonal treatments or some similar course and with two years experience of living in one's new gender, post-transition.
Nearly all those who offered public testimony-advocates, civil rights groups, medical and mental health experts, and even City Council Speaker Christine Quinn-recommended a further loosening in what the health department proposed. Several leading advocates went so far as to say the overall approach relied far too heavily on a medicalized view of the matter contrary to city law regarding gender identity and expression.
The health department having proposed well more than half a loaf, and told that nearly everyone wanted a full loaf, suddenly decided to offer a crumb. Only those who complete gender reassignment surgery will now be eligible, and Frieden offered a spurious explanation based on concerns about sex-segregated facilities, like bathrooms and showers.
It's hard to buy his contention that this concern first occurred to the health department after more than a year of consideration-the supposed horror of gay and straight soldiers showering together was the first complaint lodged when President Bill Clinton tried to end the ban on homosexual soldiers 13 years ago.
In any event, the sex-segregation issue was studied exhaustively by the city Human Rights Commission in the two years following passage of the 2002 gender identity and expression nondiscrimination law, and reasonable guidelines have been established. The health department need not re-create the wheel.
More fundamentally, Frieden's action sabotaged the rights of the public to comment on major initiatives proposed by the health department and other city agencies. Actions are suggested, New Yorkers are asked to respond, and then in the end are told the original recommendation on the table was not the question after all. It's hard not to walk away from that sort of process cynical about government's claim that it cares what the voters have to say.
Most troubling, however, was the commissioner's refusal to say whether the change in course was spurred by feedback from either local law enforcement or the federal Department of Homeland Security, concerned about the integrity of basic identification documents in the U.S. The health department did note that new federal guidelines are expected in 2007.
It is reasonable for the government to take steps to ensure that official records about Americans and guests in the U.S. are accurate, but this goal should not be pursued on the backs of transgendered people. Now more than ever, people who complete a gender transition require updated records that reflect the realities of their lives-such documents are essential to get a job, to travel domestically or abroad, even to gain entry to the municipal building where the health department holds its hearings.
It is time for Commissioner Frieden to clear the air on this troubling turn of events.