Certificate Policies to Current Medical Standards for Transgender Patients (June 9, 2014).

Transcription

1 October 7, 2014 Dr. Michael Fine, Director Rhode Island Department of Health Three Capitol Hill Providence, RI Via Re: GLAD s comments regarding and support of proposed amendments to birth certificate regulations Dear Dr. Fine, I am an attorney with Gay & Lesbian Advocates & Defenders (GLAD), a New Englandbased legal organization dedicated to ending discrimination based upon sexual orientation, gender identity, and HIV status. GLAD writes to express our support for the Department of Health s (DOH) proposed regulations related to correcting the gender designation on an individual s birth certificate and to suggest a few important changes. We believe these proposed regulations bring Rhode Island in line with contemporary professional standards of care along with the best practices of six other states and several federal agencies, including the State Department, Veterans Administration, Social Security Administration, Office of Personnel and Management, and U.S. Citizenship and Immigration Services. 1 The American Medical Association (AMA) has also called for the elimination of any requirement that individuals undergo gender affirmation surgery in order to change their sex designation on birth certificates and for policies that instead would allow corrections to gender markers on birth certificate on the basis of clinically appropriate treatment. 2 The AMA s stance is based on the fact that gender transition is a highly individualized process, and surgical intervention is not an 1 See D.C. Code Ann (d) (2013); Cal. Health & Safety Code ; Iowa Code Ann (3) (2004); N.Y. Comp. Codes R. & Regs. Tit 10, 35.2 (2014); Or. Rev. Stat (2014); 18 Vt. Stat (2011); Wash. Dept. of Health, Ctr. for Health Stats., Proc. No. CHS- B5, Changing Gender on Birth Certificates (2008); U.S. Dept. of State, Office of the Spokesman, New Policy on Gender Change in Passports Announced, Washington, D.C. (June, 9, 2010); available at (last visited July 9, 2014); Office of Personal Management, Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace (May 27, 2011); Veterans Health Administration, Directive : Providing Health Care for Transgender and Intersex Veterans 3 (June 9, 2011); United States Citizenship & Immigration Services, PM : Adjudication of Immigration Benefits for Transgender Individuals (April 10, 2012). 2 American Medical Association, House of Delegates, Resolution 5-A-13: Conforming Birth Certificate Policies to Current Medical Standards for Transgender Patients (June 9, 2014). Through strategic litigation, public policy advocacy, and education, Gay & Lesbian Advocates & Defenders works in New England and nationally to create a just society free of discrimination based on gender identity and expression, HIV status, and sexual orientation.

2 appropriate benchmark for legal or social recognition of one s gender. 3 The DOH s proposed regulations recognize this essential fact. We support DOH s revisions and suggest one technical revision as well as two recommendations to be considered the next time it seeks to amend its regulations, but need not be addressed in the context of this hearing process. With regard to the technical revision, the current proposal defines contemporary clinical standards by referencing Version 7 of WPATH s Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People. While it is appropriate to reference WPATH s SOC, we believe the regulations should refer to the most recent version generally rather than version 7 specifically. As WPATH explains, the SOC are based on the best available science and expert professional consensus. As a result, they are updated as new research is conducted. For this reason, WPATH has altered its Standards of Care six times since 1979 to reflect the continually evolving medical understanding of transgender people and the efficacy of various treatment options. 4 We anticipate that WPATH will eventually revise its SOC and therefore do not suggest referencing a specific version that might inadvertently tie Rhode Island to outdated clinical standards. This change will also prevent the need for future rulemaking when WPATH alters its SOC. With regard to future amendments, we would suggest at a later date allowing all qualified, licensed health care providers including therapists, counselors, and social workers, in addition to physicians to confirm a person s gender, as the Rhode Island DMV has done. Due to barriers in health care and insurance coverage, transgender individuals receive transitionrelated health care through a variety of means. In addition, health care workers such as therapists and/or social workers who regularly work with transgender clients can be just as knowledgeable as physicians regarding the SOC. We would also recommend in the future that the regulation specify that the affidavit from the individual requesting the amendment need only confirm the person s identity and request for a gender marker change. The remainder of this letter details the medical and public policy support for the DOH s proposed recommendations. The Impact of Birth Certificates on Transgender Discrimination Birth certificates represent a necessary and vital document that is required throughout a person s life to perform various activities and access essential services. Without a birth certificate that accurately reflects their identity, transgender people are routinely forced to disclose their transgender status, which results in increased difficulty accessing employment, educational opportunities, lines of credit, medical and life insurance policies, driver s licenses, and government benefits. The National Transgender Discrimination Survey (NGTLF/NCTE Survey) found that an astounding 44% of 6,450 transgender respondents reported harassment, assault, or denial of service when they presented identifying documents that were incongruent 3 Id. 4 Id. at 97.

3 with their visible gender expression. 5 It is therefore essential that transgender Rhode Islanders have access to birth certificates that reflect their lived gender identity. Unfortunately, regulations and laws that require proof of surgery before amending gender markers on birth certificates represent an outdated medical practice and are incongruent with the way many transgender people choose to transition. Surgical requirements in no way reflect contemporary medical and psychological standards of care that providers actually use in treating transgender people. The Current Treatment Guidelines for Gender Transition Gender identity refers to one s innate sense of being a man or a woman. Many people have a gender identity that is congruent with their sex as assigned at birth. However, some experience discordance between their assigned sex and their gender identity. This incongruity can cause extreme anguish and, if significant enough, is diagnosed as gender dysphoria (GD). GD is recognized as a serious medical condition in both the International Classification of Diseases-10(ICD-10) and the Diagnostic and Statistical Manual of Mental Disorders (DSM-V) published by the American Psychiatric Association. 6 As the AMA explains, GD is characterized by a persistent and often intense discomfort with one s anatomical sex and can cause intense emotional pain and suffering that is intractable, severe, and often incapacitating. 7 Treatment for gender dysphoria has evolved considerably in recent decades and is largely undertaken in accordance with the standards of care published by the World Professional Association for Transgender Health. WPATH is recognized as the leading world health organization dedicated to the study of transgender health issues. 8 It has also condemned surgical requirements stating that no person should have to undergo surgery or accept sterilization as a condition of identity recognition and has called for identity documents to recognize a person s lived gender. 9 The current SOC recommends a variety of treatments including mental health care, social transition, hormone therapy, and sometimes sex reassignment surgery. The proper combination of treatments is to be determined by the patient s needs, the treating physician, and other mental health professionals Jaime M. Grant et al., Injustice at Every Turn: A Report of the National Transgender Discrimination Survey 153, National Gay & Lesbian Task Force and National Center for Transgender Equality (2011). 6 American Medical Association, supra note 2; American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000). 7 American Medical Association, supra note 2. 8 Id. 9 WPATH, Identity Recognition Statement (June 16, 2010). 10 WPATH, Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People 97 (7th ed. 2011)

4 Transgender people have a variety of medical, financial, and personal reasons for choosing not to undergo surgery. First, surgery is not medically necessary for many individuals as part of their treatment for GD. 11 In fact, given the risk of medical complications and the possibility surgery will eliminate reproductive capacity, many physicians recommend against the procedure. The high cost of surgery, which is rarely covered by health insurance, also places a financial obstacle in front of transgender people. Finally, some choose not to have surgery to avoid alienating family members. Given these facts, a significant percentage of transgender people do not require surgery to be comfortable living in their new gender. According to the National Transgender Discrimination Survey, less than 4% of transgender men and only 23% of transgender women have what are popularly understood as genital surgeries. 12 As a result, surgical requirements inadvertently deny many transgender people access to gender confirming and accurate birth records. By contrast, DOH s proposed regulations are in keeping with contemporary treatment practices and accurately reflect the experiences of transgender individuals. DOH s proposal would allow for an individual to change their gender marker after undergoing either surgery, hormonal treatment, or other treatment appropriate for the individual. This tripartite therapy is aligned with the medically accepted treatment for gender transition, which recognizes gender transition after receipt of counseling, hormone therapy, or sex reassignment surgery, or combination thereof. 13 The NGLTF/NCTE Survey found 75% of survey respondents had received counseling and 62% had received hormonal therapy for the purposes of gender transition. By recognizing these common treatments for GD, DOH s proposal accurately captures the gender of all Rhode Islanders. WPATH has noted a strong trend in individualized treatment stating that what helps one person alleviate gender dysphoria 14 might be very different from what helps another person. 15 Rather than attempting to circumscribe what constitutes acceptable treatments, the proposed regulations provide a standard that can adapt to evolving medical practices. Similar Policies Adopted by Other States and Agencies The proposed regulations are also comparable to the current policies of six other states, the District of Columbia, five federal agencies, and the Rhode Island DMV. California, Iowa, New York, Oregon, Vermont, and Washington have all adopted rules enabling individuals to change the gender marker on their birth certificate after submitting one certification from a licensed physician stating that the individual has undergone surgical, hormonal, or other 11 Id. at Grant, supra note 3, at WPATH, Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People 97 (7th ed. 2011) 14 Gender Dysphoria is the medically recognized term for the emotional distress that results from gender-sex incongruity. See Zack Ford, APA Revises Manual: Being Transgender is No Longer A Mental Disorder, Think Progress (Dec. 3, 2012). 15 WPATH, supra note 10, at 168.

5 appropriate treatment for gender transition. 16 Similarly, the U.S. State Department will issue a new passport reflecting a change of gender upon receipt of one letter from a licensed physician certifying that the individual has had appropriate clinical treatment for gender transition. 17 The U.S. Office of Personnel Management, Veteran s Health Administration, Social Security Administration, and U.S. Citizenship and Immigration Services have adopted similar regulations when it comes to changing the gender markers on the documents and records they maintain. 18 Even within Rhode Island, the Department of Motor Vehicles will change the gender designation on a license after receiving a completed Gender Designation form in which a health care provider certifies that an individual s gender identity has changed. 19 DOH s amendments therefore bring the rules governing vital statistics in line with other state policies. By enabling individuals to amend their birth certificates to reflect their lived gender, the new rules also ensure that Rhode Island is able to maintain the most accurate records. Conclusion DOH s proposed amendments represent an inclusive policy that reflects the modern medical and legal understanding of transgender people and their needs. By recognizing the individuality involved in gender transition treatment and grounding the new standard in contemporary medical science, the proposed rules ensure that every Rhode Islander is able to obtain a birth certificate that reflects their true gender identity. We therefore support the proposed regulations and urge their adoption with the one technical correction suggested. Sincerely, Janson Wu Deputy Director & Senior Staff Attorney 16 Supra note Id. 18 Id. 19 See State of R.I., Dep t of Motor Vehicles, Gender Designation on a License or Identification Card (May 2012) available at

6