August 2016 Bar Bulletin
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August 2016 Bar Bulletin

Naming Your Gender

By Carol Betts

 

Think about all the stresses associated with applying for college and then consider having the added stress of wondering whether your dream college will support your gender identity. If your dream college is North Carolina State University and you want to use the bathroom that corresponds to your gender identity when you get there, you’ll need a birth certificate with a gender marker that matches how you identify.

An analysis of federal and state data estimates that there may be as many as 1.4 million adults in the U.S. who identify with a gender that is not the one on their birth certificate.1

Last month, Washington Initiative 1515 failed to garner enough signatures to qualify for the November ballot. It would have added language to Washington’s civil rights statute, RCW § 49.60.040, permitting public and private entities to prohibit transgender people from using the bathrooms and similar facilities that correspond to their gender identity.

While not enough Washingtonians were willing to allow discrimination to be added to a law that was enacted to protect against it, many other states are considering similar laws. Twenty-three states have sued the Obama Administration over the president’s executive order requiring federally funded public schools to allow transgender children to use the facilities that correspond to their gender identity.2

Much of this battle turns on what gender is listed on a person’s birth certificate. North Carolina, which infamously now has a law that would require citizens to carry a birth certificate to the bathroom in order to enforce it, permits a person to change the gender marker on a birth certificate following sex reassignment surgery. Forty-seven other states also allow it under a variety of rules. Only Idaho, Ohio and Tennessee do not allow gender to be changed on a birth certificate.3

Thirty states either permit or require a court order for gender to be changed on a birth certificate. Each state has its own rules regarding the proof required for the change. Washington permits the birth certificate change to be done by court order, but also allows the change to be made based on a letter from a physician stating that the requestor has had “the appropriate clinical treatment.”

As a practical matter, the court will require the same letter from a physician to support the court order, so it isn’t clear why one would want to obtain the court order to change a Washington birth certificate. More information about changing a gender marker on a Washington birth certificate can be found on the Department of Health’s website: http://www.doh.wa.gov/LicensesPermitsandCertificates/
BirthDeathMarriageandDivorce/GenderChange
.

For states that require a court order, King County will issue the orders in ex parte. Prepare a basic petition using allegations similar to those in a name change petition. The petition can request a name change at the same time. A letter from the physician stating that the petitioner has had the appropriate clinical treatment should be submitted with the petition. It cannot be submitted as a sealed health care record using a cover sheet, so a separate motion to seal under GR 15 will have to be submitted.

King County also asks for a copy of the Affidavit of Correction, which would be submitted to the Department of Health to change a Washington birth certificate. If the order is to change a birth certificate issued by another state, a similar form will be available from that state.

The U.S. Government permits a transgender person to change gender on their Social Security records and passport with a physician’s certification that they have had appropriate clinical treatment.

Most people will never have to think about bathroom selection or worry that their basic identifying documents have different gender markers. Thanks to Washington’s relatively progressive rules and laws, attorneys here can help our transgender residents alleviate some of this uncertainty.

Carol Betts practices at Family Law & Mediation PLLC in Bellevue — www.SeattleFamilyLawyer.com

1 http://www.motherjones.com/politics/2016/06/estimation-us-transgender-population-doubles

2 http://www.motherjones.com/politics/2016/07/10-more-states-sue-federal-government-over-transgender-bathroom-rules

3 National Center for Transgender Equality: http://www.transequality.org/documents..


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