The U.S. is falling behind on trans identity laws

Pretty much everyone, including the president, recognizes that Caitlyn Jenner is a woman.

But if she wanted to legally prove it by having her California driver’s license say she’s a woman, she would need a note from her doctor.

That’s because the U.S. has lagged behind other countries when it comes to laws that allow transgender people to self-declare their sex on government-issued IDs. Laws vary from state to state, but all of them require some form of medical approval. Some require sex reassignment surgery before they allow people to update their gender on legal documents. And others, like Kansas, Idaho and Tennessee, will not issue changes to the sex listed on a birth certificate.

For transgender people in the United States updating legal documents can be complicated, expensive, and sometimes impossible.

In order for a transgender person in California to get a driver’s license with the correct gender marker, they need a physician or psychologist to certify that they’re transitioning or have completed their transition.

“No one needs a doctor to verify their gender,” said Sasha Buchert, a staff attorney at the Transgender Law Center, a San Francisco based civil rights organization.

“There are simply no serious arguments in favor of creating unnecessary barriers to accurate identification — no one undergoes the financial cost and social stigma associated with being transgender in order to commit fraud,” Buchert told Fusion.

Meanwhile, a somewhat surprising country has become a leader on trans identity laws. Colombia this week said it would drop requirements that forced trans people to first seek medical or court approval to change their gender. Instead, they can do so simply by going to a notary and signing a legal document. Denmark, Argentina and Malta also allow transgender people to change their sex on government issued identifications without getting medical approval first. Ireland is poised to do the same later this month.

The official order has surprised many Colombians, since the vast majority of Colombia is Catholic. The country still doesn’t allow same-sex couples to adopt children, and abortions are illegal.

“Judges used to order bodily inspections to determine if people had physically changed their sex, or demanded a psychiatric exam to know if the applicant had gender dysphoria,” Colombia’s Justice Minister Yesid Reyes told the Colombian newspaper El Espectador. referencing the previous process to legally change gender identity.

“Both exams were profoundly invasive of privacy rights and were rooted in unacceptable prejudice. The construction of sexual and gender identity is an issue that doesn’t depend on biology,” Reyes said.

Colombia’s Ministry of Justice and Rights tweeted: “The change of gender in identity documents will take a maximum of five working days after filing #Idecide.”

“This is a huge step in the recognition of trans people,” Laura Weinstein, director of the transgender rights group G.A.A.T in the capital of Colombia, Bogota, told Fusion.

“We’ll no longer be pathologized and we’ll avoid procedures that were disparaging and violated our dignity,” Weinstein told Fusion in a telephone interview.

For transgender people in the United States updating legal documents can be complicated, expensive, and sometimes impossible.

“A few states do not allow gender changes at all, either via case law or – in the case of Tennessee – through a statute that expressly prohibits transgender people from changing the gender designated on their birth certificates,” said Stacey Long Simmons, director of public policy and government affairs for the LGBT rights group National LGBTQ Task Force.

Simmons said states are trending toward easing the requirements for updating gender markers like, eliminating court orders and surgical requirements. Just in the last month, for example, Connecticut, Maryland, and Hawaii passed birth certificate modernization bills, which replace surgical requirements with gender change letters from physicians.

But even laws in more progressive states present barriers for trans people.

Only 21 percent of transgender people have been able to update all of their IDs and records with their new gender

“Even these less invasive requirements present financial barriers that fall disproportionately on low-income individuals, who often cannot afford therapy, time off work, or court costs and attorney fees,” said Simmons.

At the federal level, surgery is no longer required for gender marker updates to passports and Social Security records but medical thresholds still remain.

If a trans person applies for a passport, for example, they have to get doctor to declare under penalty of perjury that the applicant “had appropriate clinical treatment for gender transition to the new gender.”

If the applicant is in the process of transitioning, they can apply for a passport that’s valid for two years. If they’ve already completed their transition, they’re able to apply for a full passport that’s valid for ten years.

In the end all these barriers result in many transgender people not having government-issued documents that reflect their gender identity.
Only one fifth (21 percent) of transgender people have been able to update all of their IDs and records with their new gender, and one third (33 percent) had updated none of their IDs/records, according to a 2011 survey conducted by the LGBT civil rights groups the National LGBTQ Task Force and National Center for Transgender Equality.