Searching through old boxes of briefs last week, I came upon Ann Hopkin’s brief to the Supreme Court, filed by her attorneys James H. Heller and Douglas B. Huron in 1988. For those who don’t have access to the subscription databases (and it may not even be there) or to an SC depository library, here it is. Price Waterhouse v. Hopkins, Brief for Respondent, June 1988. The scanning job is not perfect, so be forewarned.
Another excerpt from Chapter 2. The notes are not included since they’re still a bit messy. You can view the 2012 committee bill hearing here, starting at about 1:45 minutes in. I usually show it in my Trans Theories and Politics class.
In 1977, Tennessee legislators voted to prohibit individuals from changing Tennessee birth certificates to indicate their new sex. While policy in Ohio and Idaho achieves the same end, Tennessee is the only state where legislators affirmatively voted to deny this recognition. A bill to reverse this and make it possible to change the sex marker on birth certificates issues by Tennessee was introduced in 2011 and considered by the Tennessee House Health and Human Resources Subcommittee the following year. Because rules for sex classification are usually decided at the administrative level—as common sense “housekeeping” rules that require no public comment or, more recently, as publicly promulgated policies—it’s a very rare thing for lawmakers to expound publicly on the parameters of sex. The exchange between Republican Senator Joey Hensley and two of the bill’s advocates—LGBT rights attorney Abby Rubenfeld and Marissa Richmond, president of the Tennessee Transgender Political Coalition—succinctly captures the points of disagreement. Rubenfeld ends her remarks to the committee by comparing changing gender to changing one’s name.
Rubenfeld: There is no problem with changing birth certificates in this way, to change somebody’s name or to change their gender designation….And changing this law…will do a great service to the few people that need to do this whose lives are prejudiced and are damaged in significant ways because they can’t make this vital correction….Birth certificates are routinely changed and there’s never a problem about that. We change names on birth certificates. You can go to court here in Nashville and get your name changed for any reason that you want and change it on your birth certificate, any reason that you want and you’ll have a new birth certificate that has that name with no record of your old name.
Senator Joey Hensley: So you say that you can change the name but can you change the date or the place of birth on your birth certificate?
Abby Rubenfeld: I don’t think so. I don’t know why anybody would want to.
Joey Hensley: Well, I would think that would be the same way this is. That’s a fact when someone is born, they’re born at a certain time, they’re born at a certain place, and they’re born a certain gender. And the birth certificate is just designating that.
Abby Rubenfeld: But they’re also born with a certain name and it’s changed easily.
Senator Hensley: Names can be changed. Names are something given to a person after birth.
Abby Rubenfeld: But gender designation I would respectively suggest is also just given to a person at birth….But for people who take this extraordinary step to correct their physical gender to match what they really are, that is a fact for them, it’s a fact from birth.
Senator Hensley: We just disagree about that.
The bill would not only have reversed Tennessee legislation on the question and aligned its policy with that of the 47 other states that allow one’s sex designation to be changed on birth certificates. Because the requirements in the bill did not list surgery or body modification of any kind, passage of this legislation would also have catapulted Tennessee to the forefront of policy on the issue at the time. The rule in Tennessee would have been essentially the same as the Department of State’s passport rule, and the two other states with the most liberal criteria for changing sex on birth certificates at the time, California and Vermont, as well as the District of Columbia.[iv] While the advocates and the bill’s sponsors couched their argument in terms of physical transition—the traditional narratives most intelligible to elected officials and the public alike—the evidence required in this bill was a sworn statement from a physician, psychologist or social worker “that the gender of the person had been changed.” Below the questioning turns on what evidence would be appropriate for a change of sex:
Senator Hensley:….But what exactly has to determine someone’s gender. I notice this amendment lists several different people that can have a sworn statement. Physician and then it goes ahead and I don’t know why you list all of these but a surgeon and an endocrinologist and a gynecologist and internist, a neurologist and psychiatrist. Those are all physicians. And then you go to psychologist or a social worker. How can a social worker have a sworn statement about someone’s gender?
Abby Rubenfeld: I would just point out that in this time when we’re trying to have limited government I don’t know why legislators can make that decision either.
Marissa Richmond: Those categories are based on what the US State Department picked for the gender change policy for the passport, and so all of those categories are professional categories who treat and deal with transgender people. And that’s why those specific categories were selected.
Senator Hensley: Is this someone who has gone through all the physical changes to change their gender or is just this someone that cross-dressers, they can change their gender.
Marissa Richmond: Cross dressers are not defined as someone who has changed their gender so they would not fall under this particular law, if this bill becomes a law.
Senator Hensley: What does designate when someone has changed their gender?
Marissa Richmond: ….That is a definition determined by the medical community, and in consultation between that care provider and the patient and to determine what procedures and steps are necessary. And for certain people, for instance in a wheelchair, they would not be allowed in certain cases to get certain procedures but nonetheless their gender change would have actually occurred. But yet the medical profession may not be willing to take it a full step. But they would still have transitioned, changed their lives, they would assume a new gender and this bill would allow them to have a document which then they can take out and carry on with the rest of their lives and matching up all their other documents at one time.
Senator Hensley: But you’re adding social worker as somebody that can have a sworn statement. Even if this bill passed it would seem like adding someone who was a social worker is a stretch.
Marissa Richmond: We can remove that particular category.
Senator Hensley: I don’t support it anyway but adding a social worker is a stretch.
Senator Hensley simply doesn’t believe sex can change. As he puts it—”we just disagree about that.” But, he advises the advocates, even if sex can change, that change shouldn’t be based on the sworn statement of a social worker. At that moment in the hearing, the bill’s sponsor, Jeanne Richardson, Democrat from Memphis, stood up and offered to remove psychologist and social worker from the bill. She then made a final statement:
For someone to have surgery or to change their lives this totally is a very very serious thoughtful process. This is not something that’s done lightly….It has to do with the person and their personhood and what they are, it’s as essential as anything could be about them. There are very few people in our society that make this decision, but I respect those people that do….So when they make that decision, and we have medical professionals who will back them up, I see no reason why the rest of us should challenge that.
Despite Richardson’s plea to her legislative colleagues to think of gender identity as a central aspect of personhood that they should refrain from interfering with, a few minutes later the bill voted down.
[Posting very short excerpts from my book, as I work on last edits to it.]
For years, I had put off doing the paperwork to change my legal sex in my Social Security records. Partly I had delayed doing this because word had it on the transgender digital street that during the administration of President George W. Bush, the SSA had tightened the requirements for changing the sex marker in one’s record. (It had.) I had also procrastinated because this was not a bureaucratic transaction I could accomplish through the faceless anonymity of the U.S. mail. Unlike residents of, say, Nebraska, at that time residents of Brooklyn, Queens, and five other municipalities across the country had to show up in person at a “Social Security Card Center” to “strengthen the integrity of the Social Security Number.” The idea of outing myself in a face-to-face transaction with a government bureaucrat was not appealing to me. (I had already had that odd experience at the New York Department of Motor Vehicles, described in the preface.)
But by the time President Bush left the Oval Office, I had decided to get all my ducks in a row, and get the record changed. I had developed a slightly paranoid fear that I would be denied my social security benefits at some point in the future because of a mis-match between the SSA’s record associated with the number that was assigned to me and (what I can only describe as) myself. A few years earlier, as I was researching the history of New York City’s policy for changing the sex marker on birth certificates, in a relatively dustless archive of a medical association, I had read a letter written in 1965 by a federal official at the Division of Vital Statistics at the Department of Health, Education, and Welfare. He was responding to an inquiry from the head of New York City’s Bureau of Records and Statistics who had asked for his department’s input on a policy for applications for a “change of sex” on the birth certificate. In researching the question, the federal official surveyed various federal agencies and found that the “crucial problem” raised by the question concerned the status of the connection between two different files, with different names and sex markers. “Assuming that ‘x’ has undergone medical treatment [operations for “change of sex”], how do we link ‘x’ with the birth certificate?” As a researcher, it had been exciting to come across a letter, written over forty years prior, in which a federal bureaucrat consciously reflected about one of the central problems of modern state formations—how to recognize its citizens—and tied that to the question of legal sex classification. Somewhat later though, and from the perspective of myself as an economic being who hopes to receive Social Security benefits upon retirement, the idea that the SSA might not be able to connect me to my records instilled a sense of vertigo. What if the government said the Paisley Currah in their records was not me? What if “I” was not sufficiently linked with the Paisley Currah who would be the future recipient of Social Security benefits?
In 2009, the handbook for consumers on the Social Security Website explained what forms and documents one must tender for an ordinary “change of information” request, including changing one’s name or correcting one’s date of birth. Change of legal sex presumably fell under this “change of information” category, but there weren’t any particular instructions for that. Digging deeper, I came upon the SSA’s online manual for its field officers, Programs Operations Manual System (POMS). There, under the heading, “Changing Numident Data for Reasons other than Name Change,” I found what I needed. SSA field officers are instructed: “Sex-Operation: Applicant must submit a letter from his or her surgeon or the attending physician verifying that the sex change surgery was completed. All documents must clearly identify the NH.”[iv] NH is the acronym for Numident Holder; Numident is a short form of Numerical Identification System. “My” number, my file, is the Numident; I am merely the Numident Holder. If my request was successful, the regulations state, “a new record showing the new data is appended to the prior record(s) on the Numident.” My identity in this federal database would not be erased but augmented—the records of the male “Paisley Alan Currah” would be appended to prior records of the female “Paisley Ann Currah.” While the Social Security Administration has not yet identified a solution to the larger epistemological uncertainty hovering over the link my SSA files and myself—or, more precisely, the link between the Numident and the presumptive Numident Holder—at least “my” different records would be connected administratively.
The documents the SSA required for me to change my information were filed away at home. I filled out Form SS-5, “Application for a Social Security Card,” which is used for new cards as well as for change of information, checked the box marked “Male,” wrote in my new name and my old name, and went downtown to 625 Fulton Street in downtown Brooklyn to get the deed done. When I arrived, about fifty people were already in line, waiting to get through metal detectors before going up to the sixth floor where the card center is actually located. Three armed guards from a private security firm periodically broadcast directives to us Numident Holders and would-be Numident Holders—no food, no drink except for water or infant formula, no alcohol, no weapons of any kind, no tools.
Up on the sixth floor, the wait was much shorter. When I was called to window #21, I passed my SS-5, through the slot below the window. “Is this for a new card?” the field officer asked through the window’s intercom system. This was the moment I had been dreading. “I’m just updating the information on the card, the gender and the name,” I responded, wondering if any clients at nearby windows could hear me. I was instructed to slide my documents over, which included my passport as proof of identity, proof of my name change, and a notarized letter from a surgeon. The clerk first looked at the order from the Civil Court of the City of New York granting me “the right to assume the name of Paisley Alan Currah”—this was a familiar document. (I had already changed my name on my old passport and driver’s license—Paisley Ann Currah—to Paisley Alan Currah, and also my sex classification on both documents.) After she’d skimmed it, she ran her hand over the last page to feel for the court’s seal. She turned to the next document, the doctor’s letter. It stated that, “Psychological and medical testing has been carried out to determine the patient’s true gender. In the case of Paisley Currah, this was determined to be male.” It also stated the patient had undergone “surgical procedures…to irreversibly alter his anatomy and appearance to that of a male.” This document, which was only five sentences long, took this field officer what seemed like quite some time to read.
After a few long minutes, the officer looked up, smiled, and said, “All right, I’m just going to check this out, verify it, and we’re good.” She left the window in search of a supervisor, or at least someone who knew what to do with my request. After wandering from one end of the long glassed-in area to the other at least three times, she finally found someone to advise her—the field officer at window 25. They consulted for a few minutes, looking over my documents together. Before my field officer returned to the window, she photocopied my documents. “Okay, it’s all checked out, and we’re good.” She started typing away at the computer, making changes. She looked up once to inform me that my immigration status had never been updated. “I can fix that right now.” The friendliness level had ratcheted up significantly. She was now super helpful and I was super appreciative. When she was done, she had me sign a form consenting to all the changes to my record and returned all the originals and a receipt to me. I thanked her and skedaddled out of there.
It was, but for the long wait, the security checks, and the suspense at window 21, a relatively painless exercise. I had done what conscientious “numident holders” are supposed to do to keep their information up to date. I had figured out the proper procedure, filled out the form, waited patiently in a long line, and proffered the right documents to the Social Security Administration. And since domestication/recognition involves mutuality, the federal government, at least this particular agency in this particular case, had assented to my request for recognition. My sex classification had been changed to reflect the changes to my body described in the doctor’s letter, my name had been changed, even my citizenship status had been updated. All my ducks were in a row, but it was turtles all the way down.
From the beginning of the chapter on states and sex classification.