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The legislature denied them four times, so transgender people found another way to rewrite Colorado law on birth certificates

Current Colorado law -- the one transgender advocates have tried to change the last four years -- requires a person to have gender-reassignment surgery and prove it to a judge before asking to change the gender marker on a birth certificate

A Colorado birth certificate photographed on Thursday, Dec. 13, 2018. (Jesse Paul, The Colorado Sun)
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Four years running, transgender people and the parents of transgender kids scooted close to a microphone in the state Capitol and asked a row of suited lawmakers to make it easier for them to get birth certificates with the gender that matched the way they live.

Each time, the request was deemed too extreme, killed in committee after lawmakers questioned the legitimacy of changing a document created upon a person’s birth, comparing it to rewriting history.

So the families backing the proposed law gave up on the legislature.

It turns out there was another way, and its key was a transgender 13-year-old who is suing the state for making him out himself every time he had to present his birth certificate.

The boy — called B.D. in a civil rights lawsuit filed against the state of Colorado — wants to stay anonymous. His mother, in an interview with The Colorado Sun, said her son understands the impact his lawsuit is about to have for all transgender Coloradans, at least to a degree.

She gave him the choice. “I remember him looking up at me,” said B.D.’s mother, whose name is not used in this story to protect her son’s identity. “He asked, ‘If we lose, can they take our house?’ I reassured him that would never happen. He obviously understood the weight of the moment, that he was going up against a very big institution.”

And on the day they found out Colorado planned to settle, that the state health department would rewrite its rules for B.D. and every other transgender person, the teenager began shadow boxing and humming the theme from Rocky.

Current law — the one transgender advocates have tried to change the last four years — requires a person to have gender-reassignment surgery and prove it to a judge before asking to change the gender marker on a birth certificate. It goes back to 1984, when Colorado first added a legal provision to modify the gender on a birth certificate.

But for many trans people, genital surgery is not wanted. Others are not healthy enough for the surgery or cannot afford an expensive procedure typically not covered by insurance. And for trans children, surgery generally isn’t an option since doctors won’t do the surgery on someone younger than 18.

“Look, there is no similar law anywhere that requires you to have a surgery to change a mistake of identity,” B.D.’s mother said. “The concept that the government is going to force you to go under the knife to live your true self. Seriously? What kind of country is that?”

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“I will never put my child in a position where he has to walk into a courtroom and stand in front of a judge and explain himself,” she said. “That’s immoral.”

The current proposal at the Colorado Department of Public Health and Environment, which includes the division of vital records, would instead allow a transgender person to change their birth certificate, no surgery required. A minor would need a doctor or mental health provider’s signature. The proposal also says people could choose from four options: male, female, intersex or X.

Final approval is expected next week.

B.D., who transitioned at age 11 while in middle school, is addressed with the wrong pronoun on a regular basis, which results in “a lot of tears — tears and frustrations,” his mother said. He is registered for school with a birth certificate that says female, though his parents met with school officials to explain that he wanted teachers to use male pronouns.

Every time they go to the airport, where B.D. uses his passport to get through security, he is called by a name he doesn’t use and the wrong pronoun. On a recent trip out of the country, he was pulled to the side for a pat down. “For some people, it would just be an inconvenience,” his mom said. “For us, it was looking at each other in horror. The biggest issue was what they are going to find, or not find, and where that discussion would lead us.”

Instead of explaining it to a stranger in the middle of a crowded airport, they asked for a private room.

What looms over the teenager these days are thoughts of having to use his current identity documents to get into driver’s ed and college. His family is filing paperwork to change his passport, a process that is easier than current Colorado law regarding birth certificates because surgery isn’t required. B.D.’s identity at the Social Security Administration also includes the gender he was assigned at birth.

“He has always been very vocal about being a boy,” his mother said. “And he is always correcting people. He has the courage to stand out, to be his true self.”

The anticipated birth certificate change is not the only one on the horizon for transgender Coloradans. In the same year that the state’s first transgender person elected to the legislature will take her seat, a host of legislation and policy changes are in the works.

Among them, Colorado has modernized its rules regarding driver’s licenses for people who don’t identify as female or male. Beginning on Nov. 30, people could begin using an “X” instead of an “F” or an “M” to indicate gender on a license at any state-run Department of Motor Vehicles location.

Michael Hartman, executive director of the Colorado Department of Revenue. (Handout)

The policy, enacted by the state Department of Revenue, lasts for 120 days. Department executive director Michael Hartman is reviewing public comment and intends to make the rule permanent, he said.

Department officials pursued the change to head off potential legal challenges similar to the lawsuit zeroing in on birth certificates. But the reasons go beyond that one. “This change is in alignment with Colorado’s values that people are people regardless of their sexual identification,” Hartman said.

Supporters of the driver’s license update plan to pursue legislation that would amend the word “sex” on a driver’s license to the more flexible, “gender.” The change would reflect growing understanding that a person’s gender is not necessarily a match to their body parts.

Other legal changes sought by the LGBTQ community include a ban on conversion therapy, which attempts to “fix” a person’s sexual preference or gender identity, and amending the name-change process.

Castle Rock attorney Emma Shinn, a transgender woman who filed the lawsuit on behalf of B.D., also is helping lead a fight to change law in Colorado that requires a transgender person to out themselves in the newspaper before they can legally change their name.

Emma Shinn, a Castle Rock attorney, is a transgender woman who filed a lawsuit against the state of Colorado on behalf of a transgender boy who wants a revised birth certificate. (Provided by Emma Shinn)

Current law requires a person to file legal notice in a newspaper three times in 21 days — and include their current name and proposed new name — before they can change it. This means a trans person is required to publish their “dead name” and link it publicly to their new name, as in “here comes Jane Doe asking to become John Doe,” and including the case number.

“That basically outs them to their entire community,” said Shinn, who has helped about 7,200 people start the name-change process since 2016.  

Current law allows three exemptions to the requirement: child abuse, domestic abuse and “for good cause.” So Shinn wrote a motion that has been used repeatedly in courts across Colorado that claims there is “good cause” to exempt trans people.

Sometimes it works, and sometimes it’s rejected by the court.

Shinn and a few friends initiated the Name Change Project after she changed her own name in 2016 and realized “how much of a pain in the butt it was,” she said. They created a nonprofit organization that walks people through the process, from finding the legal forms to filing them in court.

They are asking the legislature next session to remove the requirement of legal notices.

Shinn got a birth certificate with her female gender in Missouri, a state with a similar process to Colorado and one that requires a person to have gender-reassignment surgery.

After having the surgery in 2017, she had to get an affidavit from her doctor, then file a district court case in order for the court to recognize her gender, then mail the court order to the Missouri Department of Vital Records. The process cost her about $400, because she is an attorney and didn’t have to hire one — and that’s not counting the $16,000 surgery.

“Surgery doesn’t make a person more or less trans,” Shinn said, meaning that some transgender people choose to take hormones but might never have surgery. “Everyone’s transition is different.”

For B.D., having a birth certificate with his “true gender” will remove a “looming stress-monster” from his life, Shinn said. “It would take a huge weight off.”

The Colorado Senate chamber on Sept. 18, 2018. Four years running, transgender people and the parents of transgender kids asked Colorado lawmakers to make it easier for them to get birth certificates with the gender that matched the way they live. Each time, the request was deemed too extreme, killed in committee. Then they found another way. (Jesse Paul, The Colorado Sun)

Daniel Ramos, executive director of the LGBTQ advocacy organization One Colorado, called the changes “an incredible step” for transgender people.

“People should be able to live their authentic selves,” he said, including getting “an identity document that matches who they are.”

Officials at the records division of the state health department have supported the birth certificate legislation in prior years, even testifying on its behalf before it was kicked out by Republican senators. But the division didn’t circumvent the legislative process on the matter until B.D’s lawsuit was filed and the case went to the state Attorney General’s Office.

“The case that was filed against us did prompt us to take another look at this,” said Chris Wells, director of the Center for Health and Environmental Data at the state health department.

After asking for an attorney general’s opinion, the division discovered it had the authority to change the rules through the Board of Health. The vote by the board is scheduled for Dec. 19, following two months of feedback the division solicited from law enforcement, coroners and others who regularly use vital records.

If the Board of Health approves the new birth certificate rules, they will take effect in early 2019.

Wells said the division doesn’t “really have an opinion” on the rule change, but is acting in response to a request from the transgender community. “We have seen other states enact this change, and from a health-equity standpoint, we agree that the bar shouldn’t be so high that you should have to have surgery” to change a birth certificate, he said.  


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