Wednesday, 28 January 2009

The ACLU vs the state of Illinois

From a previous post:
The other issue that has been busy percolating through my brain has been the legal hoops that must be jumped through in the US state of Illinois regarding changing Birth Certificates.

First, for the situation to be corrected, the person concerned must have had sufficient genital reconstruction surgery, and of the right type. Now while that's arguably a problem, especially for Intersexed people, and those whose medical conditions preclude such surgery, let's take it as read that it's reasonable. It's certainly not wholly unreasonable.

Except... that the surgery isn't what's important. What is important is who performs it, not what is done. The surgeon must be one registered in the US to practice medicine. Certification of what was done by a US doctor isn't sufficient. This was introduced as the result of a deliberately fraudulent certification by one US doctor, once, a matter of compassion. Ok, so maybe that might be seen as reasonable, though surely certification by multiple US doctors would be a better solution.

Except... from a support group I'm on, for patients of the surgeon I went to...
Well, I have discussed the below situation with legal counsel and the Illinois law is quite clear. An affidavit from another physician does not meet the law's requirements. I have posted a file in the file section of what I'm doing next.

Here are the outcomes of my research:

Upon submission of the application for Birth Certificate Change for the state of Illinois an investigator is assigned to research each application and to confirm the affidavits are valid. In my case, even getting Dr. Suporn licensed in Michigan would not meet the requirements because he would not have been licensed in a state within the United States at the time my surgery was performed.

So what sex a person is, who they are allowed to marry, is not determined by the reality of their body: it's not determined by who performed the surgery even: it depends on what, who, and when. And all to stop "same sex marriage".

Whisky Tango Foxtrot?

At some point, you have to realise that you're playing a game by someone else's rules, a game where things like compassion, rationality, even sanity have no place. A game where the rules can be changed by the enemy at whim, where there really are no rules, no consistency, just pure irrational spite.
Well, it's taken some time, but now the ACLU has taken notice. From the Chicago Tribune :
In August 2007, a clerk and her supervisor told Rothkopf, who was born in Dixon, Ill., that the birth certificate couldn't be changed because she had planned to have her sex reassignment surgery outside the United States. On Tuesday, Rothkopf, 36, and Chicago resident Victoria "Tori" Kirk, both of whom had their sex-change surgeries in Thailand, sued the State of Illinois.

Their lawsuit, filed by attorneys for the American Civil Liberties Union, called the denials a violation of state law and asked a judge to order that their birth certificates be changed.

"It could create significant problems for me in the future," Kirk said Tuesday at a news conference. "A document that says I am male puts me at risk of embarrassment, harassment and possibly even physical violence."

The two women said they chose to undergo procedures in Thailand because they felt the one-step surgery offered there would be medically safer. Both women have been able to change the gender on their driver's licenses, passports and Social Security cards.
From the Chicago Sun-Times :
Officials with the Illinois Department of Public Health -- which encompasses the Vital Records division -- say their hands are tied.

"We are following the Vital Records Act, and we are simply enforcing that," said department spokeswoman Melaney Arnold. "The part that we are particularly looking at is the definition of physician. Physician means a person licensed to practice medicine in Illinois or any other state."

As in, one of the United States.
Joel Ginsberg, executive director of the Gay and Lesbian Medical Association, estimates that between 1,600 and 2,000 patients undergo major gender-related surgeries each year.

"Given that many if not most health plans will not reimburse for medically necessary transgender surgery procedures, many transgender people find it necessary to leave the country in order to get the services they need," Ginsberg said. "So it's both illogical and unfair to not allow people to change their legal documentation to reflect the reality about their bodies and their condition."
The Vital Records act requires that a physician (ie someone registered to practice in the USA) certifies that the operation has been performed. Not that they themselves have performed it. But the registry office only provides a form requiring the surgeon to attest to it, not a US physician. Moreover, they even require that the surgeon be registered in the USA at the time of the operation, and not at the time of attestation. Without such a form, they will not change the birth certificate, regardless of what the original law may say. They have a Policy.

So two people who both had the same procedures from the same overseas surgeon are of different sexes, depending on when the surgeon became registered to practice in the US:- as Dr Brassard of Canada did specifically to avoid this issue for his many patients from Illinois.

It's those who are transsexual who have a "serious mental disorder" according to the DSM-IV, not the regulatory authorities. Well, one of us does, that's for sure, because in my view, this situation is utterly bonkers. Inhuman and cruel too.


Anonymous said...

"A game where the rules can be changed by the enemy at whim, where there really are no rules, no consistency, just pure irrational spite."

Many times it the lowest clerk that makes the policy. Whatever their beliefs they can discourage many. Bringing these problems to court takes time and money.

radicalbitch said...

Let's be frank here. These situations have arose as a direct result of the efforts of transgender activists to confuse who is female and who isn't by constant attacks on post operative women and "education" efforts to sell feminine penises. I have watched with horror for the past 10-15 years as this gradually happened all across the US. Changing my own ID was fairly simple back then, now doing the same thing I did would be nearly impossible. It's called backlash and it will only get worse.

Thanks to the Helms, Sandeen and other monsters, transsexuals, as in those who actually change their bodies to reflect their gender, have gone from fairly well tolerated and accepted in the past to invisible with everyone who hears trans anything now thinking of a chick with a dick.

Anonymous said...

Government = mob with protection racket. Sometimes both versions also provide useful services, but they don't have to.

Sign me as "Coherent Visible EMR"

Anonymous said...

Why are heteronormative people so hung up on labels? Why do they even invent "rules" of when it's okay to use a label for a person and when its not?

Why be nasty and show your readers that you have a problem with some people when you could equally as easily be nice and show your readers that you have compassion and understanding. When this journalist is six-feet under is it really going to matter to him that he used his "invented labeling rules" to be nasty to somebody who didn't deserve it?

These same ignorant bigoted fools also label us transvestites and poofs, proving beyond doubt that they have no understanding of the concept of the natural variations of the human condition.

In time I hope society looks upon these bigots as the freaks.


Anonymous said...


Did you change something or am I going nuts? Hand me that copy of DSM-IV!

My comment above should've been in response to the blog post below. I'll copy it there now.


mina.magpie said...

At the end of the day it boils down to religious values interfering in a secular state. All the other issues - heteronormativity, that pervasive idea of man, woman, and never the twain shall meet ... it's all based on a Judeo-Christian worldview that elevates one sex, male, waaaaayyyy above the other. I don't know how it would work, 'cause I don't live in the US, but from my perspective, things are not gonna change until people start taking these rules and the judges/officials who enforce them as what they are: clear religious interference in a secular state. Interference which infringes upon individual rights to freedom of religion, individual liberty and all the rest of that "life, liberty and the pursuit of happiness" line we keep hearing about. Instead of fighting "for" rights to be "given", perhaps it's time to start asserting that those rights are everybody's BY DEFINITION in a secular state based on a bill of rights, and that religious conservatives are taking them away from people.


Anonymous said...

I sure hope they & the ACLU are successful in challenging this "policy" (maybe Illinois should change that term to "police you"), because as a post-op born in the state of Idaho, I'm left with an even worse predicament; the Nazis there will only amend a name on a birth certificate, and don't change gender marker, period. Further, your birth name is not expunged from the record.

I might as well go to a tattoo parlor and have "born male" tattooed on my forehead. When is the ACLU going to take some action for the folks born in Idaho, Tennessee and Ohio?

Ironically, because of the archaic laws in Idaho, it's legal for me to go topless there... HA! That would get their attention!

sign me,
Hooter Haha

Battybattybats said...


If one group of people suffer from a backlash to another group of people trying to get their fair share of supposedly universal equality while tragic and utterly unjust the people who are to blame are not those whose attempts to get their fair and due share of universal equality is responded to with that backlash but instead the hypocracy of those who benefit from a share of that equality but who oppose it being universal.

If people on a lifeboat with lots of room to spare start rocking it wildly to stop some drowning people in the water from getting on board too and some people already on board are thrown off into the water the fault for that is not that of the drowning who were attempting to get on board too, the fault is those who in their attempts to stop them through others overboard!

Battybattybats said...

Sorry, too little sleep this week. That should have read:

"the fault is those who in their attempts to stop them THROW others overboard!"

Leah said...

Vital Records is lying. A couple years ago THEY changed the rules because one FtM tried to skirt the rules. Instead of punishing that individual somebody with an ax to grind decided to punish ALL transsexual people who were born in Illinois. If a bureaucrat changed the policy then, why can't they change it back now? They're lying, acting in a discriminatory fashion and will lose in court.

sumptos devil s advocate said...

Quick question, in Australia how are the birth certificates? Is it done by the states or by the Commonwealth? Australia has a federal system like America's, so it would be by states right?

Zoe Brain said...

Birth Certificates are a State issue, but marriage is a Federal one.

This has led to some interesting court cases, where Federal Courts have told the states that if they knowingly refuse to change BCs in accordance with reality, the BC will be ignored.

To change BCs requires both evidence of sex reassignment surgery - two letters of attestation by Australian medics, and that the person be unmarried.

I could supply neither, as my genital reconstruction wasn't sex reassignment, and I remain married. However in the case where Australian citizens are born overseas - and that's nearly a third of the population - then the "cardinal document" is the immigration record.

And to change that requires a different set of criteria, namely, that you be biologically more like the target gender than not.

My problem with the passport office was that they were ignoring the immigration record, contrary to their own regulations, as they *knew* what the criteria were - so didn't bother checking.

Hence the apology and refund. Eventually.

Abby said...

Zoe, your understanding of the source of the problem in amending birth certificates in Illinois for those traveling outside the U.S. for SRS is incorrect. You said,

"The Vital Records act requires that a physician (i.e. someone registered to practice in the USA) certifies that the operation has been performed. Not that they themselves have performed it. But the registry office only provides a form requiring the surgeon to attest to it, not a US physician."

In fact, the requirement that a birth certificate can be changed only if the surgeon who performs the surgery is licensed in the U.S. is the result two Illinois statutes. First, subsection 1(d) of section 410 ILCS 535/17 states that, to amend the sex marker on an Illinois birth certificate, the applicant must submit "An affidavit by a physician that he has performed an operation on a person, and that by reason of the operation the sex designation on such person's birth record should be changed." In other words, the physician who completes the affidavit must be the surgeon who performed the SRS.

OK, so no big deal, since you just get Dr. Suporn or whoever to fill out the correct form before you come home, right? No such luck, I'm afraid, because subsection 1(9) of section 410 ILCS 535/1 says that, for purposes of the Illinois Vital Records Act, which includes 410 ILCS 535/17, "physician" means "a person licensed to practice medicine in Illinois or any other State." In other words, not only are you barred from having a doctor other than the surgeon who actually performed the surgery complete the required affidavit, the surgeon him/herself must be licensed in the U.S. Therefore, unless Dr. Suporn and other overseas surgeons go to the trouble of getting licensed somewhere in the U.S., as Dr. Brassard did, their patients are barred by Illinois law, not just a policy of the Dept. of Vital Statistics, from ever changing their birth certificates.

Only the Illinois legislature, or the courts, can make the changes necessary to eliminate this unfortunate and unnecessary requirement. Unfortunately, an effort to make these changes in 2007 failed amid a hail of sexist and transphobic "jokes" on the floor of the Illinois House.

Zoe Brain said...

The word "State" is ambiguous, and the Vital Records Act has been amended several times recently in this area.

"State" can mean "one of the United States" - so thus, for example, excluding Guam, the District of Columbia and Puerto Rico - or it can mean a nation state, depending on context. For example, the Vatican State.

535/1 states in its preamble :
"As used in this Act, unless the context otherwise requires:" - and it is arguable that in this particular context, the defined meaning of "physician" is different, based on historical precedent.

I agree that the only long term solution lies with the legislature. Should the bill be re-introduced, the expense and outcome of this court proceeding will be relevant.