Legal Articles on the Littleton Case
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Gender Determination and Human Rights


Opinion of the Massachusetts Attorney General

Number 62

May 28, 1975

 

The Honorable Paul Guzzi
Secretary of the Commonwealth
State House
Boston, Massachusetts 02133

Dear Secretary Guzzi:

On May 7, 1975, you requested an Opinion of the Attorney General concerning amending the birth records of transsexuals pursuant to Chapter 46, section 13 of the General Laws. Specifically you wanted to know:

a) whether town clerks and registers of vital statistics are required under Chapter 46, section 13 of the General Laws to correct facts not correctly stated in the birth records of a person who has been granted a legal name change and who has completed surgical sex reassignment upon proof beyond a reasonable doubt of those facts as required by Chapter 46, section 13 ; and 

b) what proof is relevant to establishing the correctness of facts respecting a person's sex and name.

With regard to the first of these questions, I am of the opinion that, in certain circumstances, town clerks and registers of vital statistics are required to correct facts, as to sex and name, in the birth records of post-operative transsexuals. Chapter 46, section 13 states:

"if the records relating to a birth . . . does not contain all the required facts, or  if it is claimed that the facts are not correctly stated therein, the town clerk shall receive an affidavit  containing the facts required for record, accompanied by documentary evidence substantiating such evidence beyond reasonable doubt, if made by a person required by law to furnish the information for the original record . . . He (the town clerk) shall file any affidavit . . . submitted under this section, and record it in a separate book kept therefore, with the names and residence of the deponent . . . and the date of the original record, and shall thereupon draw a line through any statement, or statements, sought to be corrected or amended in the original record, without erasing them, shall enter upon the original record the facts required to correct, amend or supplement the same in accordance with such affidavit . . . and forthwith, if a copy of the record has been sent to the state secretary and such city or town clerk a certified copy of the corrected, amended or supplemented record upon blanks to be provided by the state secretary, noting thereon the documentary evidence submitted to substantiate the affidavit, and the state secretary and the city or town clerk shall thereupon correct, amend or supplement the record in his office." (emphasis added)

The language of the statute is mandatory in requiring clerks to make the changes if two conditions are met. (cf. Section 13A of Chapter 46, allowing wide discretion in making records of past births where no record exists at present.) First, the affidavit must be made by "a person required by law to furnish the information for the original record." Persons required to furnish information as to births taking place in or en route to Massachusetts (all pursuant to Chapter 46) are:

a) Parents of the child (section 6, and, in the case of mothers, section 4)

b) Doctors attending the birth (sections 3 and 3B)

c) Hospital administrators, where the birth took place in a hospital (section 3 and 4)

d) Householders, where the birth took place in a house (section 6)

e) Ship captains, where the birth took place at sea (section 7)

f) Airplane pilots, where the birth took place on the plane (section 7A)

No person is required to furnish information as to births which did not take place in or en route to Massachusetts.

It should be noted that, for each birth, several people will most probably be required to furnish all the information needed for the record, so far as it is obtainable. It is also the case that if a person not required to supply the information for the original record seeks to file an affidavit, accompanied by the documentary evidence discussed below, it may be accepted by the clerk, at his discretion. 

The second condition which must be met before clerks are required to make the requested correction is that the affidavit must be "accompanied by documentary evidence substantiating such facts beyond reasonable doubt." Your second question asks what proof is relevant to establishing the facts respecting a person's sex and name and I answer as follows:

Transsexualism is a phenomenon which has only been recognized recently and which is not yet completely understood by the medical or scientific community. Based on present medical knowledge, proof that the sex recorded on a birth certificate is not correct should consist of two items:

(1) A sworn statement from a physician certifying that the person named in the birth record has completed sex reassignment surgery; and

(2) A sworn statement from a physician certifying that the person named in the birth record is not of the sex listed on the birth record.

Since the name recorded on the birth record is the name at birth and not the legal name of the individual (which can change many times), in general the only proof relevant to establishing the incorrectness of the name listed would be sworn statements from the person or persons who supplied the information for the original record certifying that the name as it appears on the record is inconsistent with the information supplied. However, since it is a matter of common knowledge that names are assigned to children on the basis of their sex, the transsexual is no exception to this general rule. When an individual presents the documentary evidence, discussed above, demonstrating that the sex listed on the birth record is incorrect, a logical inference attaches which, in my opinion, demonstrates beyond a reasonable doubt that the "Christian", or non-familial, name or names listed on the record are also incorrect. The affidavit submitted should contain the name which corresponds with the individual's true sex. This should be accompanied by a certified copy of a court order establishing a new name.

I would just say, in conclusion, that my opinion contained herein is limited to cases involving transsexuals and no analogies ought be drawn concerning other situations.

Sincerely,
FRANCIS X. BELLOTTI
Attorney General


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