College of Law > Academics > Centers, Institutes & Initiatives > Mary and Michael Jaharis Health Law Institute > e-Pulse Blog > transgender autonomy

Transgender Autonomy: The Legal Ambiguities and the Accessible Steps for Individuals

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:

  1. Laws regarding sex designation on government-issued identification
  2. Name change laws restricting a person’s right to use a name stereotypically associated with the opposite sex
  3. Laws requiring or permitting sex segregation in public facilities
  4. Laws requiring or permitting discrimination in private settings (such as employment, sports, etc.)
  5. Policies imposing restrictions or negative consequences on the right to transition
  6. Exclusions for transgender persons in private and government health care
  7. Laws that restrict marriage or civil unions based on gender, including the rights contingent to marriage (ex. custody, insurance coverage, etc.)
  8. 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.