Ill. court OKs end to genital surgery requirement for birth certificate changes

A Cook County judge approved a new decree Tuesday that would allow transgender Illinoisans to obtain birth certificates with their correct gender from the Illinois Department of Public Health without having to undergo genital reconstruction surgery.

The policy change comes as the result of a settlement reached in July in a class-action legal challenge involving three transgender individuals who filed suit in May 2010 after they were denied corrected birth certificates from the IDPH because they did not undergo genital surgery.

The short “fairness” hearing Tuesday was meant to go over the final agreement, which ensures the state will no longer be in the business of requiring “unnecessary genital surgery that is not recommended by a someone’s physician,” said John Knight, director of the LGBT Rights Project for the American Civil Liberties Union of Illinois.

“It is critical that our clients and others are able to get birth certificates that accurately reflect who they are without being required to undergo costly surgery that they may not want or need,” he said. “The State never should have involved itself in these private decisions about medical care.”

Judge Michael Hyman quickly approved the decree and order Tuesday afternoon, according to Edwin Yohnka, director of communications and public policy at the ACLU of Illinois.

The IDPH is now prohibited from denying applicants for new Illinois birth certificates who seek to change to change their gender marker solely because they have not had genital reconstruction surgery, but there is still a requirement for a different type of surgery to be performed. The specifics of the required procedures are left up to the individual’s physician, according to Melaney Arnold, Public Health Communications, Illinois Department of Public Health shortly after the agreement was reached in July.

This is a step forward for many transgender people who cannot afford the genital reconstruction therapy or do not feel the need to undergo such a procedure. However, the other procedures that may fit the state’s criteria may be just as invasive to some, including double mastectomy, hysterectomy, orchiectomy, or facial feminization surgeries.

Ultimately, the decision will come down to the individual’s physician, according to IDPH.

The policy also dictates that the state promptly process and decide on all pending applications for new birth certificates and provide notice to every applicant who was denied a new certificate since at least January 2010 — and possibly as long ago as 2008, for which it has records. It also requires that the IDPH publish a statement on its website clarifying the surgery requirements for gender marker changes to birth certificates.

The statement was already live on the department’s website Tuesday afternoon and read, “This notice sets forth the basic terms of the proposed settlement reached in the class action case of Lauren Grey, Victor Williams, and Nicholas Guarino v. LaMar Hasbrouck, pending in the Circuit Court of Cook County, Illinois, number 11 CH 17091, concerning the denial of certain applications of transsexual persons to change the sex designation on their existing Illinois birth records.”

For nearly half a century, Illinois has allowed citizens who have had sexual reassignment surgery to change gender markers on their birth certificate. The Department of Vital Records, however, began to interpret the the law to require these procedures to be done by a United States-licensed physician several years ago, according to the ACLU, which successfully forced the state to drop the U.S. surgery requirement in a previous lawsuit.