Identity Crisis: Changing Legal Documents No Easy Task for Transgender Individuals

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A parade goer waves a flag during 43rd annual San Francisco Lesbian, Gay, Bisexual, Transgender (LGBT) Pride Celebration & Parade, on June 30, 2013.

Cecilia Gentili couldn’t stand the looks on their faces. The looks waiting room patients would give her when a nurse called a man’s name and she stood up instead. The looks nurses would give her when they said they were looking for someone else. The looks she’d get at the bank when she tried to open an account.

“They made you feel like less than a person,” Gentili says.

Gentili is a transgender woman, and in person, with shoulder-length blond hair, she is the woman she always knew she was. On paper, however, it was another story. For years, Gentili’s legal name and documents didn’t match her identity, and navigating that discrepancy became a daily struggle. For transgender people — those who don’t identify with the sex are born with — any time they have to show ID can turn into moment of awkwardness, humiliation or, in some cases, discrimination: making credit card purchases, applying for jobs, checking into hotels, securing housing, getting into school, voting. Gentili even avoided medical care and traveling through airports because of how uncomfortable the interactions made her feel.

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That’s because there are plenty of barriers, both personal and financial, keeping people like Gentili from updating their documents. Many are intimidated by the process, which isn’t as standard as legally changing your name. And the high cost of legal fees, as well as some courts’ continued misconceptions that all transgender people undergo gender-reassignment surgery, are also factors. Data from the 2011 National Transgender Discrimination Survey of close to 6,500 transgender individuals found that only 21%  have updated all of their documents, and 60% had experienced discrimination during the process.

“I shouldn’t explain to you that I look like this and my name is another one,” says Gentili. “It’s discriminatory to have to make it clear. I believe that [discomfort] is borderline discrimination.”

For the past year and a half, however, Gentili, 41, hasn’t had to feel that discomfort. As a former client of the Transgender Legal Defense & Education Fund’s Name Change Project, she worked with a volunteer lawyer to update her identity documents. Based in New York City but now operating satellite services across the country, the program is one of a handful across the country that helps transgender people navigate the legal system, and since its founding in 2007, the group helped 1,000 people update their documents. As the country’s transgender community grows — a 2011 report from the Williams Institute at the University of California Los Angeles School of Law estimates there are around 700,000 transgender people in the U.S. — the demand for these services is also growing: The Name Change Project, a similar service based in New York, has a seven-week wait list, and similar programs in other cities have emerged in recent years.

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“We’ve had clients who transitioned 20 years ago but felt like they couldn’t afford an attorney, or the process on their own was too confusing or they were turned away by court personnel,” says Amy Nelson, the supervising attorney of legal services at Whitman-Walker Health in Washington, D.C., which started its legal clinic a year ago last month. “[Lawyers] are just ecstatic to get involved in this issue because they recognize this is one of the newest, freshest, cutting-edge civil right issues out there.”

What took so long? Part of the reason involves the fact that there’s no one-size-fits-all way to update name and gender. Procedures vary not just from state to state, but also from county to county, and it can be difficult to know which set of rules to follow. The process almost always begins with a court-ordered name change, which includes paperwork, a court hearing to approve the change and sometimes a publication notice in a courthouse or a newspaper of record. The court order can then be used to inform agencies such as banks and the Department of Motor Vehicles (DMV) about the change, though the exact steps vary. “Part of the problem is there aren’t even just 50 sets of rules for changing one’s name,” says Michael Silverman, the executive director of the Transgender Legal Defense & Education Fund. “It’s all over the map.”

Still, the name change is fairly straightforward compared to the process for altering gender, which policy advocates are still trying to modernize. Some agencies, like certain states’ DMVs or the State Department, require forms or letters from both the applicant and a doctor acknowledging treatment, while others have mandated therapy as a condition of altering documents. Others request proof of some kind of medical treatment, often sexual reassignment surgery. Silverman says some judges have even asked for proof of surgery before granting a name change — an extra, arbitrary requirement they are not legally allowed to consider just because a person is transgender. But for many transgender people, such therapy or treatment isn’t appropriate, necessary or accessible. Those treatments can be prohibitively expensive, and some patients have medical conditions that make such surgeries inadvisable and some simply don’t want them.

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“There’s always been a misunderstanding that being trans has something to do with surgery,” says Mara Keisling, the executive director of the National Center for Transgender Equality, one of several groups that works on policy in this area. “You shouldn’t have to have to be able to afford tens of thousands of dollars in surgery in order for your ID to match who you are. There’s no government interest in people having the wrong gender marker on their ID. It’s always just done because it’s always been done.”

Some states also require court orders to modify birth certificates, while others don’t even allow such alterations. Policies about gender makers can also have unexpected consequences: If a married couple stays together after a spouse comes out as transgender, updating gender markers on documents can invalidate a marriage in some states, such as in Ohio and Illinois. The recent Supreme Court decision invalidating the Defense of Marriage Act may eliminate some of these barriers, although it’s not clear yet how that decision will affect gender changes in marriage licenses.

Cost is another barrier, as filing fees with courts and other agencies can quickly add up to several hundred dollars. While online resources are available to help transgender individuals get the process started themselves, those who oversee these legal clinics say many of their clients come from communities least likely to access the justice system: low-income people of color, immigrants with identity documents in other countries and homeless people who don’t have any documents at all. Many of the clients are also on some form of public assistance, which makes the need for accurate ID that is required to secure benefits – more pressing.

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“If someone doesn’t have access to other people in their life who’ve done the process before and are able to help them do it, these services are really essential,” says Danny Kirchoff, a client advocate at the Transgender Law Center. Many of the organizations and clinics providing these services cover the costs of updating documents through pro bono volunteers, fundraising efforts and with petitions for fee waivers.

Depending on the client’s circumstances, the changes can happen in a matter of weeks, or it can take months to navigate, but those who have successfully updated their documents say it’s an important part of helping them to assert their identity. “Nowadays I don’t even doubt doing anything involved with showing an ID,” Gentili says. “I don’t stop and think, what will happen when they ask for my ID? What will happen when I have to show my credit card? It’s not a question of that anymore. I just go and do what I have to do. Life is easier.”