May 15, 2017

Document Correction and the Fight for Equality in the Transgender Community

Kelly Burden Lindstrom

The much-publicized transition of celebrity Caitlyn Jenner increased the visibility of transgender people in our society. However, the reality is that transgender people are marginalized and often in need of legal services to protect their rights in every facet of their lives. A Report of the National Transgender Survey concluded that it is “part of social and legal convention in the United States to discriminate against, ridicule, and abuse transgender and gender non-conforming people within foundational institutions such as the family, schools, the workplace, and health care settings, every day.” Jamie M. Grant, et al., Injustice at Every Turn: A Report of the National Transgender Discrimination Survey 8 (National Center for Transgender Equality and National Gay and Lesbian Task Force 2011).

As part of its call to action to end discrimination and recognize the human rights of all people, The John Marshall Law School’s Pro Bono Clinic launched the Name and Gender Marker Change Project last year. Since then, we have assisted more than 50 adults and minors in the process of correcting their identity documents in Illinois. Identity document correction for transgender people plays a crucial role in helping to end discrimination, harassment, and violence. Yet, the National Center for Transgender Equality (NCTE) estimates that only one out of five transgender people who have transitioned have updated all their documents to reflect their true gender identity.

There are many important reasons to correct identity documents. This became clear to me when a client told me that she simply avoided going anywhere or doing anything that required her to present identification because her state ID did not reflect how she presented. She was forced to opt out of many activities because of her non-matching documents, including anything that required an ID—such as applying for a job, enrolling in school, opening a bank account, getting a lease, buying a house, or going through airport security. The result of having non-matching documents is that many transgender people are excluded from doing basic things that are necessary to function in society. This also puts the transgender population at much greater risk of poverty, unemployment, and homelessness than the general population. The NCTE estimates that one in five transgender people have experienced homelessness at some point.

Also, because transgender people are at much greater risk of harassment and violence, there are safety reasons for updating documents to reflect one’s true gender identity. After we assisted one woman with correcting her ID, she said she was excited to go to a bar with friends to celebrate. In the past, she suffered humiliation and harassment when she presented her ID that did not match how she presented. She was publicly outed, forced to explain the mismatched documents, ridiculed, mocked, and often denied access. Her experiences are not unusual. Forty percent surveyed in the Report of the National Transgender Discrimination Survey reported being harassed when they presented an ID that did not reflect their true gender identity. This social isolation puts transgender people at risk of mental health issues such as depression. It is estimated that 41 percent of transgender people attempt suicide at some point in their lives. Presenting an ID that does not match your gender identification or presentation also puts people at risk of violence. Three percent of those surveyed reported being physically assaulted when presenting identification that did not match their gender identity.

Each state has its own rules regarding name and gender marker change as to state-issued documents. NCTE has information on how to update name and gender marker on documents in your state. The procedure for changing name and gender marker on federal documents, such as social security cards and passports, is the same in all states.

In Illinois, a person over 18 can legally change their name in court if they have resided in Illinois for the past six months. Illinois is also among a minority of states that require a mandatory waiting period for convicted felons to change their names. In Illinois, those convicted of a felony must wait until 10 years from the completion of their sentence to legally change their name. People are also ineligible to legally change their names in Illinois if they are required to register as sex offenders or if they have been convicted of identity theft. For minors, Illinois law allows the court to enter a name change if it finds it is in the best interests of the minor.

In Illinois, changing the gender marker on state-issued documents, such as a driver’s license and birth certificate, requires an individual to go through the agency issuing the documents. For a State ID or driver’s license, normally a letter is required from a medical or mental health professional, indicating that the individual has transitioned or is in the process of transitioning and a change in gender marker on the ID is necessary for that person’s safety. Attorneys can assist clients by providing sample letters to give to their treaters or referring clients to treaters that are familiar with the requirements. Currently, Illinois requires a physician’s affidavit indicating that there has been some form of gender transition surgery to change a gender marker on a birth certificate. This creates confusion as to what type of surgery is required. Some states do not require surgery to change the marker on the birth certificate, as many transgender people cannot afford surgery, nor do they want or feel that they need surgery. The Illinois legislature recently passed HB1785, which would eliminate the surgery requirement. Advocates for transgender people are hopeful that the bill will become law, making birth certificate correction much less prohibitive.

We have a way to go before ensuring equality for all trans people. Making the document correction process simpler and more available is a step in the right direction to helping transgender individuals live an authentic life, free from discrimination, harassment, and violence.

Kelly Burden Lindstrom

Kelly Burden Lindstrom is a staff attorney and adjunct professor at The John Marshall Law School’s Pro Bono Clinic.