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2. The Nuts and Bolts of Gender Change Laws SACRAO 2014 Kristin Drapela Administrative Assistant II University of Georgia

4. What do the terms mean? • Sex -refers to a person’s biological status and is typically categorized as male, female, or intersex (i.e., atypical combinations of features that usually distinguish male from female). There are a number of indicators of biological sex, including sex chromosomes, gonads, internal reproductive organs, and external genitalia. • Gender -refers to the attitudes, feelings, and behaviors that a given culture associates with a person’s biological sex. Behavior that is compatible with cultural expectations is referred to as gender-normative; behaviors that are viewed as incompatible with these expectations constitute gender non-conformity.

5. What do the terms mean? • Sexual orientation -refers to the sex of those to whom one is sexually and romantically attracted. Categories of sexual orientation typically have included attraction to members of one’s own sex (gay men or lesbians), attraction to members of the other sex (heterosexuals), and attraction to members of both sexes (bisexuals). While these categories continue to be widely used, research has suggested that sexual orientation does not always appear in such definable categories and instead occurs on a continuum (e.g., Kinsey, Pomeroy, Martin, & Gebhard, 1953; Klein, 1993;Klein, Sepekoff, & Wolff, 1985; Shiveley & DeCecco,1977). In addition, some research indicates that sexual orientation is fluid for some people; this may be especially true for women (e.g.,Diamond, 2007; Golden, 1987; Peplau & Garnets, 2000).

6. What do the terms mean? • Gender identity -refers to “one’s sense of oneself as male, female, or transgender” (American Psychological Association, 2006). When one’s gender identity and biological sex are not congruent, the individual may identify as transsexual or as another transgender category (cf.Gainor, 2000). • Gender expression -refers to the “...way in which a person acts to communicate gender within a given culture; for example, in terms of clothing, communication patterns and interests. A person’s gender expression may or may not be consistent with socially prescribed gender roles, and may or may not reflect his or her gender identity” (American Psychological Association, 2008, p. 28).

7. What do the terms mean? • Transvestite -refers to individuals who regularly or occasionally wear the clothing socially assigned to a gender not their own, but are usually comfortable with their anatomy and do not wish to change it (i.e. they are not transsexuals). Cross-dresser is the preferred term for men who enjoy or prefer women's clothing and social roles. Contrary to popular belief, the overwhelming majority of male cross-dressers identify as straight and often are married. Very few women call themselves cross-dressers.

8. What do the terms mean? • Transsexual -refers to a person who experiences a mismatch of the sex they were born as and the sex they identify as. A transsexual sometimes undergoes medical treatment to change his/her physical sex to match his/her sex identity through hormone treatments and/or surgically. Not all transsexuals can have or desire surgery. • Transition -refers to a complicated, multi-step process that can take years as transgender people align their anatomy with their sex identity and/or their gender expression with their gender identity.

9. What do the terms mean? • Transgender -refers to people whose psychological self ("gender identity") differs from the social expectations for the physical sex they were born with. For example, a female with a masculine gender identity or who identifies as a man. An umbrella term for transsexuals, cross-dressers (transvestites), transgenderists, gender queers, and people who identify as neither female nor male and/or as neither a man or as a woman. Transgender is not a sexual orientation;transgender people may have any sexual orientation. It is important to acknowledge that while some people may fit under this definition of transgender, they may not identify as such.

10. What do the terms mean?

12. Gender Dysphoria According to the Diagnostic and Statistical Manual of Mental Health Disorders, Gender Dysphoria is a condition where the gender at birth is contrary to the one identified with. For a person to be diagnosed with gender dysphoria, there must be a marked difference between the individual’s expressed/experienced gender and the gender others would assign him or her, and it must continue for at least six months. This condition causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.

13. Gender Dysphoria Aetna's Clinical Policy Bulletin on Sexual Reassignment Surgery: Aetna considers sex reassignment surgery medically necessary when all of the following criteria are met: Requirements for mastectomy for female-to-male patients: Single letter of referral from a qualified mental health professional (see appendix); and persistent, well-documented gender identity disorder (see appendix); and capacity to make a fully informed decision and to consent for treatment; and age of majority (18 years of age or older); and if significant medical or mental health concerns are present, they must be reasonably well controlled. Note that a trial of hormone therapy is not a pre-requisite to qualifying for a mastectomy.

14. Gender Dysphoria Requirements for genital reconstructive surgery (i.e., vaginectomy, urethroplasty, metoidioplasty, phalloplasty, scrotoplasty, and placement of a testicular prosthesis and erectile prosthesis in female to male; penectomy, vaginoplasty, labiaplasty, and clitoroplasty in male to female): Two referral letters from qualified mental health professionals, one in a purely evaluative role (see appendix); and persistent, well-documented gender identity disorder (see appendix); and capacity to make a fully informed decision and to consent for treatment; and age of majority (age 18 years and older); and if significant medical or mental health concerns are present, they must be reasonably well controlled; and twelve months of continuous hormone therapy as appropriate to the member’s gender goals (unless the member has a medical contraindication or is otherwise unable or unwilling to take hormones); and twelve months of living in a gender role that is congruent with their gender identity (real life experience).

15. Gender Dysphoria Requirements for gonadectomy (hysterectomy and oophorectomy in female-to-male and orchiectomy in male-to-female): Two referral letters from qualified mental health professionals, one in a purely evaluative role (see appendix); and persistent, well-documented gender identity disorder (see appendix); and capacity to make a fully informed decision and to consent for treatment; and age of majority (18 years or older); and if significant medical or mental health concerns are present, they must be reasonably well controlled; and twelve months of continuous hormone therapy as appropriate to the member's gender goals (unless the member has a medical contraindication or is otherwise unable or unwilling to take hormones).

16. Issues related to Higher EducationRegistrar and Admissions Offices • Name Changes • Gender Changes • Discrimination

17. Name Changes Changing a name is fairly straight-forward. Most judges will grant a name change as long as they are convinced that the petitioner is not trying to defraud anyone and as long as all paperwork and requirements have been met. For example, in Fulton County GA the steps are as follows: Fill out Petition to Change Name, Verification Form, and Notice of Petition to Change Name. Get Verification Form notarized. Publish the Notice of Petition to Change Name once a week for four weeks in the Fulton County Daily Report. Go before a judge in person and obtain the Final Decree. File the Final Decree and get a certified copy. Once a name change has been granted then the name can legally be changed on Social Security cards, Passports, Driver's Licenses and Birth Certificates.

18. Gender Changes Gender changes are not nearly as straight-forward as name changes and vary from agency to agency and state to state. Social Security Agency-requires a letter specifying “clinic or medical records or other combination of documents showing the sex change surgery has been completed”. This is enforced erratically. Changes have been made for generally worded statements like, “ has undergone all necessary treatment to be considered female”. Passports- requires a letter from physician certifying that petitioner has undergone “ appropriate clinical treatment”, although the formal rule is concluded genital surgery.

19. Gender Changes Birth Certificates-requires a court ordered name change and proof of surgical treatment. Washington and Vermont allow change of gender for appropriate clinical treatment (surgery not required). California and Virginia allow surgery other than genital surgery as proof of gender change. Idaho, Ohio and Tennessee will not allow gender to be changed on birth certificates. Alabama will only issue amended birth certificates showing name and gender changes. To confuse matters more, New York state requires that the applicant has undergone either penectomy or hysterectomy and mastectomy; while New York City requires that the applicant has undergone either a vaginoplasty or phallosplasty.

20. Gender Changes Driver's License-vary from state to state. Hawaii, Iowa, Massachusetts, New Jersey, Texas, and Virginia require an amended birth certificate. Arkansas, Georgia, Illinois, Indiana, Iowa, Mississippi, New Jersey, Ohio, Pennsylvania, South Carolina, Texas, Utah, West Virginia, and Wisconsin require a court order. California, Connecticut, Delaware, District of Columbia, Illinois, Indiana, Maryland, Minnesota, Montana, Nebraska, New York, Oregon, Vermont, Washington, and Wisconsin require a doctor's letter, but not surgery. The other thirty five states require a doctor's letter showing surgery.

21. Gender Changes Driver's License cont.- For example in the state of Georgia, from the Georgia Department of Driver Services: • Gender updates requires applicant to submit a court order or physician's letter certifying gender change. • The letter or court order shall state the person's name, date of birth, date of gender reassignment operation and other identifying information.

22. Discrimination In a 2012 decision, the U. S. Equal Employment Opportunity Commission found that “discrimination against a transgender individual because that person is transgender is...discrimination 'based on... sex', and ...violates Title VII.” Previously, in Holloway v. Arthur Anderson & Co. the Supreme Court held the view that gender identity discrimination is different from sex discrimination. In Ulane v. Eastern Airlines the Supreme Court found that Title VII's use of the term sex referred to anatomical gender and not those with Gender Dysphoria. In Price Waterhouse v. Hopkins the court found that Title VII covers discrimination based on the ideas of what is appropriate for genders, and “acknowledged that enforcing a specific sex-gender match may be discrimination.” In Smith v. City of Salem, the Sixth Circuit Court of Appeals found that sex discrimination is present when an employer discriminated for not adhering to cultural norms in gender expression.

23. Discrimination In October 2009, President Barack Obama signed into law, the federal hate crimes act, the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. The wording of the law includes both OFFENSES INVOLVING ACTUAL OR PERCEIVED RACE, COLOR, RELIGION, OR NATIONAL ORIGIN and OFFENSES INVOLVING ACTUAL OR PERCEIVED RELIGION, NATIONAL ORIGIN, GENDER, SEXUAL ORIENTATION, GENDER IDENTITY, OR DISABILITY and gives the Justice Department the power to investigate and prosecute bias-motivated violence.

24. Discrimination In Iowa, Maryland, New Jersey, New Mexico, North Carolina, Rhode Island, Vermont, and the District of Columbia, the non-discrimination statutes explicitly include “gender identity” as a protected characteristic. In Colorado, Illinois, Minnesota, Maine, Oregon, Washington the non-discrimination laws prohibit discrimination based on sexual orientation, and include gender identity or expression within the statutory definition of sexual orientation. California offers protection to transgender people by including gender identity or expression within the statutory definition of sex for purposes of its discrimination laws. Hawaii similarly prohibits discrimination based on “sex,including gender identity or expression.” In June, 2013 Delaware Legislature passed the Gender Identity Nondiscrimination Act.

25. Discrimination

26. Discrimination Federal Protections All government employees are protected by the U.S. Constitution against irrational discrimination based on sexual orientation or gender identity. In addition, some measure of protection already exists under Title VII based on gender, which has been held to include gender identity and expression. The U.S. Equal Employment Opportunity Commission (EEOC) and several courts have interpreted Title VII to protect transgender employees, and the EEOC has interpreted Title VII to cover sexual orientation discrimination. The Supreme Court has held that the EEOC's interpretations of Title VII are entitled to "great deference." 

28. Resources • National Center for Transgender Equality • Transequality.org • Transgender Law & Policy Institute • Transgenderlaw.org • American Civil Liberties Union • Aclu.org/translaw • Lambda Legal • Lambdalegal.org

29. References • Abigail W. Lloyd, Defining the Human: Are Transgender People Strangers to the Law?, 20 Berkeley J. Gender L. & Just. 150 (2005). • Kristine Holt, Comments: Reevaluating Holloway: Title VII, Equal Protection, and the Evolution of a Transgender Jurisprudence, 70 Temp. L. Rev. 283 (1997). • Katherine Womack, Comment: Please Check One-Male or Female? : Confronting Gender Identity Discrimination in Collegiate Residential Life?, 44 U. Rich. L. Rev. 1365 (2010). • Dean Spade, Documenting Gender, 50 Hastings L. J. 731 (2008). • John M. Ohle, Constructing the Trannie: Transgender People and the Law, 8 J. Gender Race & Just. 237 (2004-2005). • ACLU, Know Your Rights-Transgender People and the Law, April 24, 2013, www.aclu.org. • APA, The Guidelines for Psychological Practice with Lesbian, Gay, and Bisexual Clients, Feb 18, 2011, www.apa.org.

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