Court Scores NYC Health Department for “Capriciousness” in Refusal to Issue New Birth Certificate for Transgender Applicant

Justice Paul G. Feinman of New York County Supreme Court ruled on March 16 in Birney v. NYC Department of Health and Mental Hygiene, 34 Misc.3d 1243(A), 2012 WL 975082, 2012 N.Y. Slip Op. 50520(U) (Unreported Disposition), that the City Health Department must reconsider its refusal to issue a new birth certificate to Louis Leonard Birney, a transgender man, showing his current male gender identity.  The Department had rejected as inadequate proof the certified statement by Birney's surgeon that he had been through convertive surgery, and was seeking more detail about the surgical procedures as well as psychiatric reports about Birney's gender identity.  According to an Associated Press report about the case published on March 26, Birney is nearly 70 years old.

Birney submitted his application for an amended birth certificate on April 1, 2010, noting that his birth name of Luella Lillian Birney should be changed to Louis Leonard Birney and the gender, originally recorded as female, should be changed to male.  He enclosed copies of his original birth certificate, an order by Supreme Court Kings County dated November 10, 2009, authorizing the legal change of his name, and a certified letter from Dr. Toby R. Meltzer, dated March 1, 2010, stated that Dr. Meltzer had "performed Female to Male Gender Reassignement Surgery" on Birney on May 12, 2009, and that the "surgery was performed and successfully completed" at the "Greenbaum Surgery Center Scottsdale Healthcare Osborne" in Scottsdale, Arizona. Dr. Meltzer certified that the procedure was done in compliance with the World Professional Association for Transgender Health guidelines, and that Birney "is now a fully functioning male."

This was not good enough for the NYC Health Department, however, which responded with a "memorandum" to Birney dated July 6, 2010, asking for a "detailed Surgical Operative record including the date of surgery," and well as pre- and post-operative psychiatric evaluations signed by a psychiatrist or clinical psychologist, and a copy of Birney's "current valid photo identification."  Birney responded through his attorney, Yetta G. Kurland, in a letter dated September 23, 2010, contending that the materials submitted with the original application were sufficient to meet the requirements of the City Health Code (24 RCNY Sec. 207.05), pointing out that Dr. Meltzer's letter should be sufficient to document Birney's transition.  Birney's attorney enclosed with this letter a copy of Birney's NY State Identification Card, and indicated that Birney would file a lawsuit if the Department did not issue the amended certificate.

The Department's Director of Corrections and Amendments Unit, violating what should be professional protocol, did not respond to the lawyer's letter, instead sending a new memorandum dated November 1, 2010, directly to Birney, setting forth a revised list of forms and documents that would be necessary, this time listing a request for information concerning the "reconstruction procedure," a post-operative examination by a physician attesting that a surgical change of gender had taken place, and a post-operative psychiatric evaluation.

Birney then filed suit under CPLR Article 78 on March 18, 2011, seeking an order compelling the Department to issue the requested certificate, alleging that the Department was imposing an "extra-statutory legal burden" on him and other transgendered individuals seeking new birth certificates.  Birney asserted that Dr. Meltzer's certified letter was sufficient proof and the further requests were a violation of his privacy.  Indeed, Birney asserted, the Department was violating the New York City Human Rights Law's prohibition on gender discrimination, and he pointed out that the state of New York and the federal government did not impose such burdensome requirements for changing sex designations on documents.

The City's response, seeking dismissal of the action, was to argue that the Health Code delegates to the Department discretion to decide the standard of proof necessary to change a birth certificate, and that it was rational for the Department to seek documentary proof that a person has permanently transitioned before authorizing this change in a vital record.  Rejecting Birney's privacy claim, the City argued that having petitioned for the change, he could not assert a privacy claim regarding the details of his transition, and noted as well that the information he submitted would be treated as confidential and not made available to the public.  The City rejected the argument that the Human Rights Law ban on discrimination applied to this process as a "public accommodation." 

Relating the City's argument, Justice Feinman wrote, "It argues as well that because birth certificates categorize based on persons' genitalia, i.e., their biological sex, the DHMH will only change the description on a birth certificate if the applicant establishes he or she has the genitalia that corresponds to the requested designation on the birth certificate."  Are they arguing that in female-to-male transitions, they are looking for evidence that the applicant has acquired a surgically-constructed penis?  This would be absurd, since such a requirement would be outrageously expensive and, in the view of most experts in the field, the science has not yet advanced to produce a truly satisfactory prosthetic male organ. 

The City also cited Hispanic AIDS Forum v. Estate of Bruno, 16 App.Div.3d 294 (1st Dept. 2005), in which the Appellate Division rejected the argument that a landlord had violated the City Human Rights Law by basing public restroom access on biological sex rather than gender identity.  The City also argued against a constitutional equal protection claim, asserting that "a transgender person seeking to change the Birth Certificate's designation of sex is not similarly situated to a person seeking to correct a ministerial error as to their sex created by the hospital at birth," which is the other ground that the City allows for changing a sex designation on a birth certificate.  Finally, as to the merits, the City argued that the court does not have jurisdiction to compel the Department regarding a discretionary function.

Responding to these arguments, Justice Feinman provided a history of the City's response to such requests.  The Health Code provides for corrections and amendments to birth certificates, but did not address this issue prior to 1965, when an application from a transgender individual prompted the Board of Health to seek advice from the New York Academy of Medicine.  This organization constituted a committee to examine the issue, which issued a report opposing any change on birth certificates, taking the view that transsexuals were "psychologically ill persons" and it was "questionable whether laws and records such as the birth certificate should be changed and thereby used as a means to help psychologically ill persons in their social adaptation."  Trending beyond their medical competence, the Academy committee also commented that a "public interest for protection against fraud" outweighed "the desire of concealment of a change of sex by the transsexual."  The Board of Health responded to this by resolving that the Health Code should not be amended to "provide for a change of sex on birth certificates in cases of transsexuals."

In 1971, however, the Board had a change of heart and amended the Code to provide that a new birth certificate could be issued when "the name of the person has been changed pursuant to court order and proof satisfactory to the Department has been submitted that such person has undergone convertive surgery."  Under this provision, the new certificates were issued without any designation of sex, leaving that section of the certificate blank, and subsequent court challenges to the refusal to indicate the new sex of the applicant were rejected, mainly in reliance on the NY Academy of Medicine report and the purported interest of preventing fraud.

In 2006, responding to continuing lobbying by the LGBT community, DHMH proposed an amendment to the Health Code that would allow a change of sex to be shown on the amended birth certificate if the applicant provided affidavits "from a doctor and a mental health professional laying out why their patients should be considered members of the opposite sex, and asserting that their proposed change would be permanent."  This proposal was subsequently withdrawn by the Board of Health, with an explanation focused on the desire of "societal institutions" to segregate people by sex – undoubtedly a euphemism for the restroom issue.  But the Board of Health "announced that, while it would continue to require proof that the applicant has undergone convertive surgery, it was changing its policy of omitting the sex designation on the Certificate of Birth and would now 'allow transgender individuals to acquire new birth certificates reflecting their acquired sex.'"  This would bring NYC in line with what New York State was doing outside the five boroughs, and would also be in accord with the approach in many other states.

So the question in this case is whether the Department is being reasonable in refusing to accept Dr. Meltzer's letter as sufficient evidence.  The City argued that to prevent fraud it needs more than the doctor's letter with its "conclusory" statements.  The City submitted an affidavit from its Registrar of Vital Statistics, stating that the City has "continuously" required detailed surgical reports post-operative physical and psychological examinations, to ensure that a permanent change had taken place.  This new affidavit, curiously, omitted the requirement from the July 2010 memorandum for a pre-operative psychological report, and differed in some details from the November 1, 2010, memo that the Department had sent to Birney specifying the documents that he would have to submit.

At oral argument on the City's motion to dismiss, wrote Justice Feinman, the City's position seemed to change again, focusing entirely on whether Meltzer's letter was sufficient documentation.  "The psychiatric reports apparently are not really at issue," wrote Feinman, "which of course begs the question of why the Department demanded them.  As far as what petitioner provided concerning proof of convertive surgery, respondent describes Dr. Meltzer's signed and notarized letter of March 1, 2010, as a 'conclusory statement of an unknown physician.'  This is strained," continued Feinman, "given that the letter includes the doctor's contact information and his license number."  As to the City's quibbles about the wording of the letter, Feinman wrote, "the plain meaning of the words would seem to indicate that petitioner, formerly a female, underwent surgery and is now 'fully functioning' in life as a male."

After highlighting other discrepancies between the Department's various document demands, the Registrar's affidavit, and the arguments submitted at the hearing, Justice Feinman continues, "While anything is possible, of course, it does not seem very likely that an individual would go through all the years of required preparation for surgical transition, including psychotherapy, undergo major surgery, assume life under his or her new gender, and then decide it was all a mistake and change back.  This apparent assumption tends to suggest a certain ignorance by the Department of the lengthy transition process and the lives and experience of transgender people, also revealed in its legal papers which consistently refer to petitioner using female pronouns despite petitioner asserting himself as a transgender male.  It is further revealed in respondent's apparent conclusion that because at this point petitioner's birth certificate indicates that petition is a female, it is 'accurate' to continue to refer to him as a female.  As noted by petitioner's attorney, without a corrected birth certificate, a transgender person faces many potential difficulties in being treated appropriately, as well as in obtaining employment and in many other areas of life."

"Based on the record before the court," the judge continued, "petitioner has certainly revealed what looks like a capriciousness in respondent's manner in carrying out its governmental function when addressing petitioner's application, but he does not establish that respondent's concerns as to the importance of birth records and its adherence to the current law, are entirely lacking in a rational underpinning that rests on the Health Code Rule."  Abstaining from ruling on questions under the constitution or the City's Human Rights Law, Feinman concluded that it would be appropriate, in light of all the discrepancies between the communications to Birney by the Department, the Registrar's Affidavit, and the arguments made at the hearing, for the matter to be sent back to the Department for reconsideration.  Feinman found that the City "offered no rational reason why a notarized letter from a physician on letterhead stationery and including the physician's license number, and which states that the physician himself successfully performed and completed 'Female to Male Gender Reassignment Surgery' on petitioner on May 12, 2009, at a specific named surgical center in Scottsdale, Arizona, and that petitioner 'is now a fully functioning male' is insufficient to establish that petition has undergone convertive surgery."

Thus, the court concluded that the Department should "reconsider petitioner's application without regard to the psychiatric records and should provide a written explanation, if any, as to why the notarized statement of Dr. Meltzer that he completed convertive surgery is insufficient."  The petition was thus granted to the extent that the matter would be remanded to the Department for reconsideration, but otherwise denied.

It is discouraging to see that the New York City Health Department, at least as revealed by this opinion, seems to be so far behind other jurisdictions in adopting a uniform, rational policy for dealing with petitions by transgender individual seeking new birth certificates.  The State does not seem to have such problems outside of New York City, and it should be an easy matter for the State and the City to adopt a uniform approach to a recurring issue of transgender individuals seeking amended birth certificates.  In the absence of widespread reports of fraudulent use of amended birth certificates, the City's rationale for its defense in this case is hard to understand.

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