Testimony of Ashe McGovern, LGBTQ Law Project, Before the New York City Council,
Committee on Health, Regarding Proposed Bill Int. No. 491

November 10, 2014

Thank You Committee Chair Johnson and members of the Committee on Health for spearheading this important bill.

My name is Ashe McGovern and on behalf of the New York Legal Assistance Group and its LGBTQ Law Project, we offer our strongest support for the proposed amendment to the Administration Code of the City of New York, to amend sex designation on birth records.

The New York Legal Assistance Group (NYLAG) serves immigrants, seniors, the homebound, families facing foreclosure, renters facing eviction, low-income consumers, those in need of government assistance, children in need of special education, domestic violence victims, persons with disabilities, patients with chronic illness or disease, low-wage workers, and Holocaust survivors, as well as others in need of free civil legal services. The LGBTQ Law Project at NYLAG, provides free legal services and advocacy to low-income Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) communities throughout New York City. We work to defend and expand the rights of New York City’s LGBTQ communities by offering legal advice and representation on a wide variety of poverty-related civil legal matters. The LGBTQ Law Project focuses on removing discriminatory barriers and increasing our client’s access to: employment, housing, public assistance, legal name changes, family law and gender-affirming healthcare.

We applaud the proposed change to NYC’s birth certificate policy to remove the surgical requirement currently required to change the gender marker on a New York City birth certificate. We believe this new policy will increase access to critical identity documents for transgender and gender non-conforming people born in NYC. The proposed change will also bring NYC’s policy in line with the rest of New York State, and in accordance with modern medical standards1 recommending that transgender and gender non-conforming people may obtain new birth certificates without first requiring gender affirming surgery.

Transgender and Gender Non-Conforming Communities are Extremely Vulnerable to Discrimination, Harassment and Mistreatment

Transgender and gender non-conforming (TGNC) communities experience devastating levels of discrimination, harassment, and mistreatment in nearly every aspect of their lives, particularly in attempting to access stable employment, safe healthcare, secure housing and economic stability.

According to the most comprehensive national survey of TGNC communities in the United States2, over half of the survey respondents report losing a job specifically as a result of their employer’s bias. Ninety (90) percent of those surveyed report experiencing harassment, mistreatment and discrimination at work or took actions such as hiding who they are to avoid being retaliated against. Respondents who had lost a job because of bias experienced tragic consequences, including a four times higher likelihood of being homeless and an eighty-five (85) percent increased likelihood of being subject to incarceration.

Over half of those surveyed also report being harassed in places of public accommodation, including hotels, restaurants, buses, airports and government agencies. Nearly one-fifth of those surveyed report being refused medical care due to their transgender or gender non-conforming status, and almost one-third of respondents postponed medical care all together. Nearly one-fifth report being refused a home or apartment because of their gender identity or expression.

As a result of these widespread experiences of discrimination, TGNC communities, particularly communities of color, are four times more likely to live in extreme poverty and earn less than $10,000 annually. Nearly sixty (60) percent report being survivors of physical or sexual assault during their lifetimes and over half have experienced significant family rejection3.

The Proposed Amendment Will Decrease TGNC Vulnerability to Discrimination, Harassment and Mistreatment

Having inaccurate or mismatched identity documents significantly increases the likelihood that TGNC community members will be forced to “out” themselves to potential employers, landlords, healthcare providers or government workers, exposing them to the aforementioned discrimination, harassment, and mistreatment. In a recent survey, four out of ten of transgender people said they experienced harassment when presenting identity documents that did not match their gender4.

The vast majority of transgender New Yorkers have inaccurate birth certificates. Eight out of ten transgender women and nine out of ten transgender men have not had the surgeries the 1971 policy requires. All the people who requested services of the LGBTQ law project because they wish to correct the gender marker on their City issued birth certificate have been unable to because of the surgical requirement imposed in 1971. Although other agencies have updated their policies to remove the surgical requirement currently codified by New York City, one’s birth certificate remains a vitally important document in accessing a variety of systems. An accurate birth certificate would help facilitate TGNC community members’ access to other important documents and it is often the only form of identification low-income New Yorkers have in accessing employment, healthcare, government benefits programs, or housing.

The Proposed Amendment Will Bring New York City in Line With Currently Accepted Medical Consensus

The birth certificate policy, written in 1971 and unchanged in over 40 years, is outdated and no longer in line with modern medical consensus. In June of 2014, the American Medical Association issued a statement specifically recommending that TGNC communities should be free to change the gender marker on their birth records regardless of whether or not they have had gender affirming surgeries. The World Professional Association for Transgender Health (WPATH) is also recommends that “no person should have to undergo surgery. . . as a condition of identity recognition.”

Furthermore, the implicit presumption in the current policy, that surgery is a threshold requirement for transgender people to affirm their gender, is inaccurate. Gender affirming health care includes a range of treatments and differs according to the needs and overall health of individual transgender people. Gender affirming surgery may be medically necessary for a given individual. Having undergone a particular medical intervention, however, is not the appropriate marker of whether a transgender person is a man or a woman. Many TGNC community members choose not to have surgery for a variety of reasons, including health restrictions or personal preference. Many others, even if they would like to access surgery, are unable to afford it because both private and public insurance programs, including New York’s own Medicaid program, have explicit exclusions for transgender-related surgeries. As a result, TGNC community members are only able to access these expensive procedures if they are able to pay out-of -pocket, making this standard especially burdensome for low-income New Yorkers who cannot afford to have any form of surgery.

The Proposed Amendment Will Bring New York City in line with other Jurisdictions who have Modernized their Birth Certificate Record Procedures

Other jurisdictions have already modernized their birth record laws, allowing TGNC community members to obtain new birth certificates without first requiring gender affirming surgery. For example, in May of 2014, the New York State Department of Health removed its surgical requirement for correcting gender on birth certificates for the entire state, outside of New York City. Similarly, California, Vermont, Oregon, Washington, Rhode Island, and the District of Columbia have all removed surgical prerequisites in their respective states for access to accurately gendered birth certificates.

Even the federal government has modernized their procedures. In June of 2010, the U.S. Department of State announced that TGNC people may change the gender marker on their passport after receiving certification from qualifying professionals that they have undergone appropriate clinical treatment, which need not include surgery of any kind.

We hope that New York City will be the next jurisdiction to follow suit. TGNC community members are among the most vulnerable residents of New York City and desperately need access to accurate identification documents in order to decrease their likelihood of experiencing discrimination, harassment, and mistreatment.

NYLAG applauds the City Council for taking this critical step towards modernizing the City’s code to reflect current medical consensus and to ensure that all TGNC community members are able to access stable employment, safe healthcare, secure housing and economic stability free from discrimination.

Respectfully submitted,
Ashe McGovern
New York Legal Assistance Group

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1. WPATH Standards of Care
2. Grant, Jaime M., Lisa A. Mottet, Justin Tanis, Jack Harrison, Jody L. Herman, and Mara Keisling. Injustice at Every Turn: A Report of the National Transgender Discrimination Survey. Washington: National Center for Transgender Equality and National Gay and Lesbian Task Force, 2011.
3. See id.
4. See id.