The National Center for Transgender Equality writes these comments in full support of the Division of Vital Records proposed amendment to the regulations for change of sex designation on Virginia birth certificates. The proposed amendment is an update and modernization of these regulations and puts these regulations in compliance with Virginia Code. The below testimony provides background information about why this amendment is so important, issues the old regulation caused, and how this amendment will remedy those issues.

1. Transgender people may need to correct the sex designation on their birth certificates for practical, personal, and safety reasons

Birth certificates are a critical identity document used in many settings to verify an individual’s identity and having an accurate gender marker is important for many practical reasons, in addition to validating a person’s intrinsic dignity. Birth certificates are often requested for purposes related to employment, education, and family law, to verify an individual’s identity, and specifically to verify their citizenship. Even in settings where birth certificates themselves are not required; other identity documents based on birth certificates are often required. In order to avoid discrimination in these situations, transgender individuals need access to birth certificates that accurately reflect their gender.

Medical professionals have long recognized the importance of updated identity documents as an intrinsic part of gender transition. The American Psychological Association encourages “legal and social recognition of transgender individuals consistent with their gender identity and expression, including access to identity documents consistent with their gender identity and expression which do not involuntarily disclose their status as transgender for transgender people who permanently socially transition to another gender role.”[1]

Correcting the sex designation on a birth certificate is important to help avoid discrimination and bias against transgender people. Data from the 2015 U.S. Transgender Survey—a national survey of nearly 28,000 transgender adults, including 723 Virginia residents—shows that a lack of proper identification greatly contributes to discrimination. Over half (66 percent) of transgender respondents living in Virginia did not have an ID with the name and gender they prefer. A quarter (25 percent) of transgender Virginians who showed ID that did not match their gender presentation were verbally harassed, denied benefits or services, asked to leave, or assaulted.[2] As a result, it is critically important that transgender people be able to provide official documents to agencies, employers, schools, and more that correspond to their gender identity.

2. The Current Regulations Impose Additional Evidentiary Requirements Not Required by Statute

The current regulations include language requiring additional evidentiary requirements that the statute did not require. Within the Virginia statute, there are only two requirements: 1) a certified copy of an order from a court of competent jurisdiction indicating that the sex of the individual has been changed by medical procedure, and 2) a request from the individual seeking a change on their birth certificate.[3] However, the current regulations add a set of additional evidentiary requirements, identifying that acceptable evidence as “(preoperative diagnosis, postoperative diagnosis and description of procedure)…and a notarized affidavit from the physician performing the surgery.”[4] The regulation goes on to interpret the statutory language requiring “medical procedure” to be a “surgical gender reassignment procedure.” These additional evidentiary requirements are discriminatory and cause the regulation to contradict the mandate of the statute.  For the following reasons, this lack of clarity between the statute and the regulation creates a significant amount of confusion for both those requesting to change their birth certificates and the courts trying to follow the state law.

1. Virginia Judges Do Not Know Whether to Follow Statute or Regulations

Because the statue and old regulation have two differing evidentiary requirements, judges are unsure of whether to follow the requirements of the statute or the regulations. This means that an applicant may present evidence in compliance with the statute, but have their petition rejected because of the language in the regulations. This discrepancy is causing needless confusion and a lack of consistency across Virginia in decisions on changing gender markers on birth certificates. The proposed update to the regulation would provide clarity and consistency on the policy that the courts are supposed to follow.

2. Virginia Vital Records is rejecting Valid Court Orders from other States

The United States Supreme Court has long held that the concept of full faith and credit is central to our system of jurisprudence.[5] This clause is included in the constitution to ensure that the judgement of a state court should have the same credit, validity, and effect, in every other court of the United States, which it had in the state where it was pronounced.[6] Currently, the Virginia Department of Health has not been honoring court orders issued by other states recognizing the sex change of an individual born in Virginia. The Department will request the supplementary documentation submitted to the court in the other state in order to meet the requirements of the current regulation. Well established precedent has held that under the full faith and credit clause, a state may not disregard the judgement of another state because it disagrees with the reasoning underlying the judgement or deems it to be wrong on the merits.^[7] The full faith and credit clause specifically prevents the inquiry into the merits of the logic or consistency of the decision on which the judgement is based.^[8] When Virginia courts are requesting to looking into the evidence presented in another state for the court order, they are explicitly violating the full faith and credit clause. The updated the regulation will provide clarity and resolve this full faith and credit issue.  

3. Requiring proof of surgery or any other specific medical treatment is outdated and discriminatory

Virginia statute requires that sex by changed by medical procedure, but the current regulations require surgical procedure. A surgical requirement does not comport with current understandings in transgender health care, which recognize that gender transition is an individualized process that is not the same for all transgender people.^[9] The World Professional Association for Transgender Health (WPATH), an international medical society devoted to understanding and properly treating transgender people, released a statement in 2010 that urged “governments and other authoritative bodies to move to eliminate requirements for identity recognition that require surgical procedures.”^[10] The American Medical Association supports “elimination of any requirement that individuals undergo gender affirmation surgery in order to change their sex designation on birth certificates and supports modernizing state vital statistics statutes to ensure accurate gender markers on birth certificates.”[11]

Many transgender people cannot undergo surgery for a number of reasons, including fear of complications, the cost of surgery,^[12] inability to take time off school or work for the recovery period, and medical conditions that make surgery impossible. Furthermore, some people choose not to have surgery because they simply do not require it to feel comfortable in their gender.  Removing the surgery requirement would allow transgender people and their healthcare providers to choose the correct course of treatment for each individual without compelling people to undergo surgery or other treatment that is unnecessary, inappropriate, or simply not possible.

4. Courts and Vital Records Need Standardization of this Process

The courts have already attempted to standardize the gender change process by instituting the Petition for Change of Sex. Following Virginia Code §32.1-269, the courts created  a “Petition for Change of Sex” available to those seeking to change their gender on their birth certificate.[13] This petition specifically asks for supporting documents from a licensed provider “indicating that the sex of the individual has been changed by medical procedure,” per statutory requirements.[14] The petition was created by the courts to make the process of changing the gender listed on a birth certificate easier, clearer, and more streamlined. However, the differing evidentiary standard in the current regulation is causing confusion for judges approving gender petitions. This proposed amendment will alleviate the lack of clarity between the current statute and old regulation, allowing for an easy to follow and standardized process.

Similarly, currently the Vital Records office is left to follow inconsistent and conflicting rules for what evidence they may accept to update a gender marker. There is no valid reason for the Vital Records office to be evaluating medical statements about gender transition. The experience and details of gender transition are between an individual and their healthcare provider. There is no public policy argument for why it would be necessary to know the detail of a person’s medical procedure. Knowing the detail of a person’s medical procedure does not aide in public safety, it only violates a person’s expectation for privacy. Forcing people to discuss, in detail, any medical treatment they have undergone can cause significant discomfort, not to mention a privacy violation. Doctors and medical providers that provide transition related care, in collaboration with the patient, are the experts in deciding what treatment is best and should have a reasonable expectation of privacy around that treatment.

5. Conclusion: We Applaud and Support this Amendment

We support and approve of this amendment modernizing Virginia’s process for correction of sex designation on birth certificates. These proposed suggestions align with transgender people’s needs to update the sex designation on their birth certificates, reaffirm contemporary healthcare standards, and make the sex designation correction process accessible and practical for registrants. Thank you for considering these important updates to the language of this regulation and please do not hesitate to contact us if we can answer any further questions