Legal Articles on the Littleton Case
and Related Articles on
Gender Determination and Human Rights


Legal Amendment of Gender Markers in Texas 
and Related Medical Protocol

Tere Prasse, Paralegal


In the past, reliance on a psychological protocol has been used under the American Psychiatric Association's "Diagnostic and Statistical Manual of Mental Disorders, Edition IV" (DSM-IV), "gender identity disorder" or GID. This reliance is categorically presumptive that the medical natal diagnosis (prediction) of gender is an absolute. Medical science, however, does not follow the notion that the natal diagnosis is absolute, and recognizes that a revision of natal gender diagnosis is necessary from time to time as the individual matures and exhibits characteristics not typically common to the natally assigned gender. Given the facts of medical science and the long-established medical protocol of gender assignation, the DSM-IV GID can be disregarded, and in fact has no sound or proven basis to warrant any legal assignation of validity. GID is simply a construct of cultural behavioral stereotype models, and due to the dynamics of cultural gender model changes over time, is a nebulous, constantly variable hypothesis; i.e., yesterday's "disorder" may be today's "norm."


OVERVIEW of Medical, Legislative, and Legal Gender Identification in Texas

Medical Protocol and Amendment of Gender Marker for Transsexuals

HB 358

relating to a change of name and vital statistics information

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS

SECTION 1. Subchapter B, Chapter 45, Family Code, as added by House Bill 655, Acts of the 74th Legislature, Regular Session 1995, is amended by adding section 45.105 to read as follows:

sec. 45.105 CHANGE OF NAME AND VITAL STATISTICS INFORMATION.

(A) A court shall order a change of name for a petitioner under this subchapter if the petition is accompanied by a sworn affidavit of a licensed physician that the petitioner is a gender other than the gender indicated on his or her driver's license, birth certificate, or other official documents.

(B) a court that orders a change of name for a petitioner under this section shall simultaneously order:

(1) that the Department of Public Safety, as soon as is practicable, change the petitioner's gender on the petitioner's driver's license and other identification documents under the department's control; and

(2) that the Texas Department of Health, on receipt of a physician's sworn affidavit that the petitioner is in fact a person of a different gender than the gender indicated on the petitioner's birth certificate as provided by Section 192.011 Health and Safety Code to reflect the petitioner's true gender.

Additional References: Proceedings of the International Conference on Transgender Law and Employment Policy, conferences I (1992) through VII (1998). ICTLEP, Inc., PO Box 1010, Cooperstown, NY 13326, 607-547-4118, stucomeone@aol.com .

Note: The 1999 version of HB 358, HB 1579, identical except for the last two words of the last paragraph—"true gender" replaced with "sexual identity." The bill died in committee with the opinion that existing Texas code was adequate [Texas Health and Safety Code, §192.011]. The committee's opinion of sufficiency of existing code predates the Texas 4th Court of Appeals ruling in the Littleton case, and shows legislative intent counter to the published opinion of Chief Justice Hardberger vis a vis his statement that amendment of gender marker is merely ministerial in nature and that the natal birth certificate gender designation is proof of  "gender immutably fixed by our Creator at birth" [sic].  We might add that gender on a birth certificate is not immutably fixed by "our Creator," but by a physician's mortal interpretation of what "our Creator" may have intended, and medical science freely admits occasional error in that interpretation. Birth certificates are not "tablets from the mountain" carved in stone by a mighty deity's hand.


Legal Note for Petitioners for Gender Marker Amendment in Texas: By using the concepts applied in the brief and with the supportive evidence of the verbiage in the attending physician's affidavit, the probability of supporting an anti-discrimination action under federal Title VII is enhanced since the argument negates the "change of gender" court precedents precluding applicability of Title VII in the past. The gender itself is not changed, but is merely a correction to the natal diagnosis with resultant corrections of gender markers. The verbiage of the original petition and subsequent court order should follow the rationale of rediagnosis of gender. Texas procedure requires present "sex" of the petitioner to be identified in the identifying paragraph of the petition unless there is a valid reason of its omission. In this case there is a valid reason which can easily be explained in the petition under reasons for petition. In the past, the "transsexual" verbiage has typically been used (how the individual came to have characteristics typical of the opposite phenotype is really moot). Since the court documents are public record, it is in the client's best interests to avoid the "transsexual" terminology which has been significantly stigmatizing due to social and cultural biases, and often used to the individual's detriment in other legal actions.

Medical Terminology Note: Until such time as an accurate medical diagnosis of gender is determined and also to fit within the bipolar cultural framework of gender role, the term phenotype (visual appearance/body structure) is more accurate and appropriate than the term genotype (genetic/chromosomal sex/makeup). Since the original natal gender diagnosis is phenotypical, it follows that a rediagnosis should also be phenotypical. Only when a genotypical natal diagnosis methodology is introduced should the rediagnosis be genotypically based. Phenotypical versus genotypical natal gender diagnosis raises significant debate since many people may go through life functioning in a phenotypical gender role (socialized bipolar gender assignment—masculine or feminine) not supported by their actual genotype (genotype is not bipolar—XX, XY, XXY, XO, etc.). 


BRIEF

MEDICAL PROTOCOL OF GENDER IDENTIFICATION AND LEGAL REVISION OF GENDER MARKERS

Medical Protocol of Gender Identification. Natal diagnosis (more accurately, a prediction) of gender is traditionally only through physical inspection (phenotypical) of genitalia. The diagnosis is accurate in most cases; however, medical science recognizes that from time to time the diagnosis is in error. Often the error of diagnosis results from uncommon genetics and congenital conditions which are only later discovered as the individual matures. As science of genetics develops, other more accurate gender diagnoses (genotypical) may be introduced to preclude an erroneous natal diagnosis. Until a more accurate method of natal diagnosis is developed, the legal system has typically supported a process to amend personal documentation resulting from medical re-evaluation of the original gender diagnosis.

Legal Recognition of the Medical Protocol in Texas. Section 192.011 of the Texas Health and Safety Code establishes the process to revise birth certificates to comply with medical re-evaluation of an individual's gender. This process by de facto health "law" defers simply to the medical protocol, requiring the attending physician's affidavit, certifying a rediagnosis of gender. Amendment process for other personal documentation is nonspecific; however, a court order has proven effective, and in issuing the order, judges have typically deferred to the medical protocol established through the physician's affidavit. The Texas Department of Public Safety has found this methodology satisfactory to amend the gender marker on driver's licenses. A court order for change of gender markers also facilitates the process of changing federal and other state documents, and in the case of Texas residents not born in Texas, an amendment of their birth certificates.

Change of Name as a Result of Change of Gender Marker. In addition to a court appearance for revision of gender marker, another appearance to revise the individual's name for congruency is most often required. Recent trends in Texas since 1992 have combined the procedure in the public interest by accomplishing both procedures on one court appearance.

Role of the Courts. The court is not creating "new" law in this process, but simply streamlining the implementation of existing law. The court takes the attending physician's affidavit as compliance with §192.011 of the Health and Safety Code for amendment of gender marker, and confirms there is no fraudulent intent; either accepting the petitioner's statement in the petition or taking sworn testimony of the petitioner. Absent fraudulent purpose, the courts have typically ruled pro forma, accepting the validity of the medical protocol for both change of name and revision of gender marker.


Attorneys wishing to submit articles, please send to
Tere Prasse via e-mail
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the panel of attorneys engaged in this case


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