Oregon Legislature Repeals Surgery Requirement for Gender Change on Birth Certificate
& Becky Straus, Legislative Director, ACLU of Oregon
& Kevin Díaz, Legal Director, ACLU of Oregon
With Gov. Kitzhaber's approval of HB 2093 yesterday, transgender people in Oregon will no longer have to show proof of surgery in order to change their birth certificates to accurately reflect their gender. Previously, Oregon law required surgery in order to update a birth certificate gender marker, even for those transgender people who did not need or want it, or were unable to access surgery for financial, medical, or other reasons. The ACLU supported the great work of agency and advocate partners to reach this victory. We are glad to see Oregon's legislature and governor sign off on this important change and advance the rights of transgender Oregonians.
In 2011, the ACLU LGBT Project and the ACLU of Oregon submitted a friend-of-the-court brief on behalf of a transgender woman who was seeking to update her birth certificate but unable to afford surgery. The Linn County Circuit Court later cited our brief in finding the surgery requirement unconstitutional. That case allowed one individual to amend her birth certificate without surgery, but today's legislation was necessary to fix the problem statewide. The change will take effect January 1, 2014.
Gender identity is a person's psychological identification as male or female, which for transgender people may differ from that person's anatomical sex. When an individual transitions his or her gender to better align these two things, that individual's transition and treatment aim to permit him or her to participate fully and comfortably in society in the gender role with which he or she identifies. While medical treatments, including surgery, are critical to a healthy transition and medically necessary for many transgender people, medical authorities recognize that each transgender person's specific course of treatment must be determined on an individual basis with the patient's physician.
Surgery is not a universally required or prescribed aspect of gender transition for every transgender person. Many public and private insurance carriers have historically refused to cover gender-transition-related surgical procedures, leaving them out of reach even for those patients who do need them unless and until those individuals can save or raise tens of thousands of dollars. Whether a transgender person has had surgery is irrelevant to determining his or her gender. And yet, for decades Oregon law has required that transgender individuals seeking to obtain accurate birth certificates undergo costly surgical procedures without regard for whether they wanted or had any medical need for the surgeries.
The ability to obtain correct gender markers on their birth certificates is a right that many Americans take for granted. People often have to show their birth certificates in a variety of situations, from enrolling in school or the military to starting a new job or applying for another form of identification like a driver's license or passport. Lacking access to accurate birth certificates has stigmatized transgender Oregonians and put them at serious risk of harassment and discrimination.
Long overdue, HB 2093 aligns Oregon law with well-established medical standards. It promotes fairness and equality and makes life easier for transgender people born in Oregon.