The Letter of Recognition

When a baby is born, the doctor in attendance writes a gender on their birth certificate. Through their life, this one letter will have more impact on them than anything else on that document--where they're housed, their access to medical care, and even the way they interact with the police. That one little M or F can determine a whole lifetime of experiences. What if the doctor gets it wrong, however? This situation is a reality for transgender people all over the world, whose legal gender does not match with their actual identity. All hope is not lost, however--there are usually processes in place to correct these errors. Even where these services are available, however, the cost can be extreme, both financially and personally. Some jurisdictions even require trans people to be sterilized before granting them this simple consideration. (IBA LGBTI Law Committee, 12) Not to mention people for whom neither government-approved gender is suitable, who must resign themselves to an unfitting administrative box. Those who cannot access these services face discrimination whenever they interact with the government, up to and including acts of physical violence by state officials. Over-regulation of gender identity on government documents is one of the greatest challenges trans people face in their struggle for equity.

What is the state of things today? Worldwide, 24 countries have passed laws recognizing the rights of trans people (IBA LGBTI Law Committee, 10-20). However, many of these countries had or still have onerous requirements in order to make use of these services, most commonly medical sterilization in addition to testimony from medical or psychological professionals. This sterilization usually takes the form of gender confirmation surgery. These barriers have prevented many trans people from achieving legal recognition; in the US, only 24% of transgender people have successfully changed their legal gender, according to the National Transgender Discrimination Survey. (Mottet, 389). In addition to their effects of the rate of transgender recognition, legally requiring trans people be sterilized before they can be legally equal to cis people is eugenics, even if not intentionally, as it prevents trans people from reproducing. Requiring gender confirmation surgery also places a financial burden on trans people, as these surgeries are rarely covered by insurance; poorer applicants simply cannot afford to be treated with dignity. This is not even mentioning other even worse policies, such as requiring trans people divorce their partners.(IBA LGBTI Law Committee, 14)

However, the situation is not all bad. Some countries, including the United States, allow changing one’s legal gender through much simpler means. The exact process varies based on state, however, and in Puerto Rico, Tennessee, Ohio, and Idaho it is explicitly impossible.(Mottet, 381-382) Despite the lack of federal regulation, in states where courts decide whether a gender change will be approved the same bias towards surgery appears. In the US, transgender women who had had a vaginoplasty or orchiectomy, both surgeries which sterilize the subject, were more than twelve times as likely to be approved for a birth certificate correction compared to those who had received no surgery at all, and twice as likely as those who had received a non-sterilizing breast implant surgery. (Mottet, 390)

Given the obstacles in the way of trans people receiving these corrections, why do they try at all? Having an accurate birth certificate is of vital importance to anyone who wants to participate in society. Today, birth certificates are used as identification documents when applying for jobs, trying to get other government documents (such as passports and driver’s licenses), and enrolling in welfare programs. (Mottet, 391-393) Beyond those programs and services which are restricted to one gender, using an incorrect birth certificate risks revealing a person’s transgender history, which opens them up for discrimination. In particular, employers often use birth certificates to identify applicants, and discriminating against a trans person with an incorrect birth certificate would be entirely legal. Likewise, having an incorrect gender on one’s other forms of ID, especially passports and driver’s licenses, increases the risk that one’s transgender status will be revealed to police officers or administrative personnel. (Mottet, 392-394)Giving that sensitive information to people who may hold transphobic views is a huge risk, and one that trans people should not have to take.

A pointed example of the challenges faced by trans people who do not have their genders legally recognized is found in the prison system, one of the most gender-segregated institutions in modern society. Cis women are often kept separate from male inmates for safety reasons, yet the same security is not afforded to trans people, especially those whose gender is not legally recognized. For example, the UK segregates prisoners by legal gender, meaning that any trans person who has not gone through the lengthy process that the UK imposes for legal gender recognition will be housed with the wrong gender. This places them at increased risk of transphobic hate crimes, including a high rate of sexual abuse. Even when prison officials attempt to remedy this problem, the solution is usually placing trans inmates in solitary confinement or protective custody, which punishes them for being the victims of discrimination. (Lamble, 7-8)

For some of us, though, it is easy to believe that bigotry manifests in the prison system. Are government officials so corrupt outside of that context? Absolutely. In a 2019 survey of trans women in Latin America and the Carribean, Lanham et al. found that the majority of subjects experienced gender-based violence from government officials in healthcare, education, and law enforcement. Sometimes this violence took the form of insults or denial of services, which caused significant distress and led to the subjects feeling that they did not belong in their community or could not make use of social services. Other times the violence was direct threats, sexual harassment, or physical attacks by police officers and soldiers. In some cases this escalated to detainment or arrest on spurious charges, which risks placing these trans people in even more danger within the prison system, as previously discussed. Considering that some of the individuals surveyed were threatened with guns and other deadly weapons, there is also the strong likelihood that some trans women did not survive to be interviewed, or were forced into silence for their own protection. Most importantly for this paper, many of these experiences did involve identification with an incorrect gender marker, especially in healthcare and police contexts. Being forced to use the incorrect gender or name caused participants significant distress and put them at risk for physical harm.

With this context, the importance of gender recognition seems vital. Why, then, have the governments of the world not already dedicated themselves to solving this problem? Some lawmakers are motivated by transphobia, almost certainly. If these biases exist among government employees it stands to reason they would also exist in the legislature, where trans people are strikingly rare.(Lyons) There are more complex arguments than simple bigotry, however. Legally, the standard is often that birth certificates reflect sex, not gender, and depending on jurisdiction this can be defined as the appearance of one’s genitals, one’s genetic characteristics, or even a quality “immutably fixed by the Creator” (Hanssen, 303). Changing these standards would require rewriting many laws, and re-evaluating the way the government approaches sex; not an inviting prospect for any lawmaker.

Some on the left also argue that reducing gender’s importance in the law will prevent the creation of anti-discrimination measures or affimative action programs for women, since being a woman would not be a legal trait but a personal identifying factor. (TGEU, 2) These arguments ignore that there are already many government policies which benefit minorities but do not require a legal document certifying membership. The prime examples are affirmative action programs for racial minorities. Race is not listed on one’s birth certificate, instead, these programs rely on self-identification to determine whether one is eligible for benefits.

Beyond this is the idea that permanence matters for gender recognition, and thus that surgery is a vital qualifier to have one’s birth certificate corrected. Often, fears are brought up that cis individuals will falsely claim to be trans in order to get the gender on their birth certificate changed. (TGEU, 2) There is no clear reason for a cis person to do this, however. Birth certificates do not determine one’s social gender--which bathroom you use or whether you are allowed to enter certain safe spaces. They are legal documents and identification. If a cis person changed their gender marker without socially transitioning, they may even face the same forms of discrimination as trans people with incorrect gender markers, for the same reasons. If they persist through all that, an observer would have to conclude that they were experiencing a persistent desire to be a different gender than the one they were assigned at birth. By definition, this would make them a trans person, and thus entitled to the protections these laws are intended to give.

That argument does reflect a larger issue in our society; gender is considered such an essential quality that it influences many aspects of our daily lives. Despite the popular attitude that people of all genders should have equity in the eyes of the law, the existence of these legal gender markers enshrines gender as an axis of discrimination in the government’s framework. Making it easier to shift these markers helps to reduce their power, in the same way that making housing easier to acquire reduces the amount of rent people are willing to pay. Ideally, they could be done away with entirely, relegating the history of someone’s sex to their medical history, along with the history of every other part of their body. This would benefit everyone, cis and trans alike. Besides ensuring that trans people needn’t pay huge sums of money or sterilize themselves in order to be legally recognized, it would also help to reduce discrimination along gender lines by government institutions, healthcare workers, employers, and any other organization that sees a person’s identification documents before meeting them in person.

As of yet, however, no country or state has chosen to remove the gender markers from their government IDs or birth certificates. In the present situation, legally recognized gender is incredibly important to how we live our lives. Until trans people can correct their gender easily, they will be at a legal disadvantage compared to cis people. It is time to stop letting the snap judgement made in the first moment of our lives control every moment thereafter.