Amending Birth Certificates to Reflect Your Correct Sex

Why did one transgendered man have to threaten to sue the Commonwealth of Virginia?

After receiving a hysterectomy, double mastectomy, hormone therapy, a name change and a court order to amend the gender on a birth certificate, actually getting the amended certificate was supposed to be the easy part. But that wasn't the case for one transgendered man in Virginia, who had to threaten to sue before government officials finally followed state law.

Raised as a female, by 1998 the man was ready to begin what would become a four-year journey to correct his gender before the law and the world. In the process he underwent extensive medical procedures, making sure to follow the accepted steps -- medical and legal -- to change his gender. Two years later, with the necessary surgery completed, he legally changed his name from the one given at birth to his present male name. But in order to fully live his life as a man, he would need an accurate birth certificate. Essentially, birth certificates form the foundation of our everyday identity documents, including driver's licenses and passports. Having accurate documentation is necessary to show new employers and ease border crossings. Even so, it can create administrative and personal nightmares when the gender on a birth certificate does not match the gender that someone lives day-to-day.

So in 2001, the man inquired at the Office of Vital Records about amending his birth certificate, and was told that a court order mandating the change was needed in order to proceed. He then went to court. In January 2002, a judge determined that under Virginia law the man had met all the legal requirements for a birth certificate amendment and ordered that the certificate be changed. He returned to the Office of Vital Records, not only with the required court order, but also with a letter explaining that he has met the prevailing medical standards for a sex change. Still, he was denied the amendment. The reason? He didn't undergo a phalloplasty -- an often-unsuccessful genital reconstruction procedure that a small percentage of female-to-male transsexuals undergo. Faced with the truth about the procedure and Lambda Legal's impending lawsuit, the state Attorney General's office backed down and finally granted the birth certificate amendment.

Why did Virginia ignore a court order to amend the birth certificate? Officials at Virginia's Office of Vital Records believed that by not having a phalloplasty the man didn't meet Virginia's legal requirement of changing his sex "by medical procedure." Therefore, they believed that they had the right to disregard the court order. Under Virginia law, however, neither was their choice to make. State law says that once handed a court order, officials must make the amendment.

What's more, Virginia law doesn't specify that a person must receive a phalloplasty to complete a sex change, only that he undergo medical procedures. The surgery and hormone therapy undertaken by the man are consistent with the internationally recognized standards to establish a full sex change as developed by the Harry Benjamin International Gender Dysphoria Association, a global authority on transgender issues. In fact, phalloplasty carries a risk of serious complications, can be quite costly and often has poor results. For these reasons, fewer than 10 percent of female-to-male transsexuals have had the operation, which is regarded as unnecessary among medical professionals in the field.

What state laws exist for amendments to birth certificates of transgendered people?

Like in this case, correcting identity documents to show an accurate gender is often one of the first legal hurdles that transgendered people face. Almost every state has a procedure permitting amendments to birth certificates to correct a mistake, change a name or indicate an adoption. In addition, the vast majority of states allow a transgendered person to amend a birth certificate to reflect a change in gender.

Among the states, however, great diversity exists in how someone can secure an amended birth certificate. Many states have passed specific laws that clearly authorize adjustments to birth certificates in the case of sex changes. Other states have more general laws covering amendments to birth certificates, which include a process for altering the listed gender. A few states don't have statues on the issue, but provide amended birth certificates to transgendered people through an administrative process. But a small handful of states -- either through explicit laws or administrative procedures -- have refused to amend birth certificates for transgendered people, ignoring the great lengths to which they have gone to reflect their true selves to the world.

Birth certificate amendments must be obtained from the state in which the person was born and often require a court order. There is also variety in what the amended birth certificate will look like. While some states issue an entirely new birth certificate with the new sex designation, others will only modify the prior certificate, sometimes noticeably. Yet, as demonstrated by Virginia's Office of Vital Records, even with established laws or processes for making amendments, there is no guarantee that state officials will follow state rules. So despite the vital importance of an accurate birth certificate in someone's daily life, a transgendered person may not be able to get a correction without a fight.