While not a new concept or
challenge, transgender individuals have enjoyed a good deal more publicity in
recent years. Celebrities have embraced
the publicizing of their transitional journeys, there has been a prevalent
trend of bestowing babies with gender-neutral names, and some universities have
even begun incorporating gender-neutral bathroom facilities. But what is the nature of transgender autonomy
in the legal and medical sense? Transgender
is an
umbrella term used for people in a number of different groups, including
but not limited to cross-dressers, who feel that they belong to either both
genders or neither gender [genderqueer people] and transsexuals, characterized
by their measures to transition to a different sex.
Jillian T.Weiss, an advocate for the protection of
transgender employees who have experienced discrimination in the workplace
,
began exploring the concept of a fundamental right to “gender autonomy” with a law review article
in
2001. She continued her dialogue nearly
a decade later in the February
issue of the Journal of Race, Gender
and Ethnicity. She champions for the
right to gender autonomy, that it may be defined as the right of
self-determination of one’s gender, free from state control, and the right to
self-identify as that gender, free from state contradiction.
In her 2010
article, Weiss reviewed the judicial history of this topic. Despite the holding of Bowers v. Hardwick in 1986, in following years scholars still felt
there was “considerable wiggle room” in which to articulate a constitutional
right of gender autonomy, possibly encompassed within the constitutional right
to privacy. This is due to Bowers’
focus on specific practices in the context of a homosexual sexual orientation;
it did not speak to whether transsexuals have a right to self identify their
legal sex in terms of sex or gender as fundamental characteristics of person,
and therefore, did not foreclose it.
Then, in
2003, the Supreme Court in Lawrence v.
Texas effectively overruled Bowers
with its holding that the statute prohibiting homosexual sodomy in Bowers violated the due process clause
of the Constitution. Lawrence presented a broad formulation
of “personal dignity and autonomy,” encompassing both private life choices and
beliefs that define the concepts of existence and personhood. Weiss felt that the choice of gender would fit
within this definition of personal autonomy. However, Lawrence
still does not hold that transgender autonomy is a fundamental right, and it is
inescapably ambiguous.
So what does transgender autonomy
look like today in the state of Illinois? In her 2010 article, Weiss highlights eight
categories of legal gender regulation:
- Laws regarding sex designation
on government-issued identification
- Name change laws restricting a
person’s right to use a name stereotypically associated with the opposite sex
- Laws requiring or permitting sex
segregation in public facilities
- Laws requiring or permitting
discrimination in private settings (such as employment, sports, etc.)
- Policies imposing restrictions
or negative consequences on the right to transition
- Exclusions for transgender
persons in private and government health care
- Laws that restrict marriage or
civil unions based on gender, including the rights contingent to marriage (ex.
custody, insurance coverage, etc.)
- Military service laws based on
gender and transgender identity
In Illinois, transgender citizens
have the ability to acquire a name change and a considerable amount of the
controlling discretion lies in the hands of the citizen’s doctor. The statute
mandating the adaption of a birth certificate is located in the Illinois Vital
Records Act. The statute allows a person
to submit an application seeking to have their gender changed on their birth
record “after undergoing an operation having the effect of reflecting,
enhancing, changing, reassigning or otherwise affecting gender.” While
the term “operation” appears severe, consulting the actual “State
of Illinois Gender Reassignment Application Instructions” clarifies that
“genital reconstructive surgery
is not required to obtain a change in
the sex designation on an Illinois birth certificate.”
To qualify the request, the only
required support is an
affidavit of a physician licensed in Illinois to clearly state that she or
he has “performed an operation on the applicant that has reassigned the gender
of the applicant,” and by that reason, the birth record certificate should be
changed. While the affidavit is required
to specify the name of the operation or operations that justify the gender
change, the spectrum of suitable “operations” is fairly broad with the final qualifier
listed, of “an operation having the effect of . . . otherwise affecting gender.”
With the only qualification being the
affirmation of one’s physician that a person has taken steps affecting a change
in gender, the ability of a transgender person in Illinois to reassign their
gender on official legal documents is very attainable. The Illinois
Names Change Toolkit provides residents with the procedures and protocols
required for amending one’s name on a driver’s license, passport, social
security card, and other forms of identification. The keystone to acquiring these various
identification changes successfully and relatively easily is the primary step
of a legal name change. Once the individual successfully completes the
name change process, they may modify other other identity documents. To change one’s name, a petition must be filed
to the court requesting the name change, and the intention to apply for a name
change must be published.
While name and gender modifications
are feasible in Illinois, there are still overarching medical duties. The American
Medical Student Association reminds medical care professionals that it is
an important rule to focus medical care on the body parts a person has, whether
they are congruent with the gender identity or not. Regardless of whether a person identifies as
male or female, procedures like prostate screenings and cervical checks should
still be completed to ensure care for the patient’s health. There are still many challenges to properly
address transgender autonomy, but for now, in the medical sense, it appears that
the protocol remains straightforward.
Sarah Balas is a 2L at
DePaul University College of Law. Ms. Balas obtained a degree in English
Literature from Loyola University Chicago in 2014. She is a student board
member of the Jaharis Health Law Institute and is considering focusing on law
in the field of healthcare or wills and trusts.