Kirk v. Arnold - Case Profile

November 16, 2009

Two transgender women are suing the Illinois Department of Vital Records for refusing to change the gender marker on their birth certificates because they had reassignment surgery outside of the United States.

For more than four decades, Illinois has permitted individuals who have gender confirmation surgery (sometimes known as sex reassignment surgery) to change the gender “marker” on an original birth certificate. The Illinois Department of Vital Records, however, recently started interpreting the law to provide this option only if an individual has the surgery performed by a United States-licensed physician.

This creates an unnecessary and unfair burden for the growing number of persons who select a surgeon from Europe, South America or Asia.   Both of the women in Kirk v. Arnold opted — for their own reasons — to have their gender confirmation surgery in Thailand.  

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Kirk v. Arnold argues that denying these women – and others who face the same discrimination – the ability to secure a new, accurate birth certificate not only creates everyday challenges that are unnecessary and dangerous, but it is antithetical to the advice of medical experts who recommend that persons who transition their gender identity ensure that all aspects of their lives reflect that gender identity.  An accurate birth certificate is important not only in those situations where an employer may require a birth certificate to start a new job, but also – especially under REAL ID proposals approved by Congress --- may be necessary in the future to secure identification to drive a car, enter a federal building or board an airplane.

The plaintiffs are represented by lawyers from the ACLU of Illinois, the ACLU's LGBT Project and pro bono counsel from the Chicago office of Jenner & Block.

The State of Illinois changed its policy regarding transgender persons who choose a non-U.S.-licensed surgeon and provided accurate birth certificates to our plaintiffs. The state has said it will revise its policy for determining how much surgery must be completed prior to a gender marker change will be revised, but that revision has not yet occurred. The ACLU continues to monitor any arbitrary denials of birth certificates.

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