Administrative Law - Identity Records - Social Security Administration Eliminates Surgical Requirement for Changing Trans Individuals' Gender Markers

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ADMINISTRATIVE LAW--IDENTITY RECORDS--SOCIAL SECURITY ADMINISTRATION ELIMINATES SURGICAL REQUIREMENT FOR CHANGING TRANS INDIVIDUALS' GENDER MARKERS.--SOC. SEC. ADMIN., PROGRAM OPERATIONS MANUAL SYSTEM, RM 10212.200 Changing Numident Data for Reasons Other than Name Change (2013)

On June 14, 2013, the Social Security Administration (SSA) announced a new policy for trans individuals (1) seeking to change their gender designation in their Social Security records. (2) Under the SSA's previous policy, trans people seeking to change their gender markers were required to provide documentation of sex reassignment surgery (SRS). (3) Under the new policy, they can choose to submit either government-issued documentation that reflects a gender change, a court order directing legal recognition of the change, or a physician's statement confirming the trans individual has received "appropriate clinical treatment for gender transition." (4) This policy change, which garnered little attention outside the LGBT press, (5) was the consequence of a deliberate advocacy strategy to engage in the administrative policymaking process and will tangibly improve millions of trans people's lives.

Despite their numerical prevalence, (6) trans people face severe and pervasive discrimination within American society. The first comprehensive national survey on trans discrimination, conducted in 2011, found that trans people are four times as likely as the general population to live in extreme poverty, twice as likely to be unemployed, and almost twice as likely to be homeless. (7) Forty-seven percent of those surveyed reported experiencing an adverse job outcome (such as being fired, not hired, or denied a promotion) because of their trans status. (8) Discrimination is especially prevalent in institutional settings: 19% reported being refused medical care due to their trans status; 15% of those who had been to prison reported being sexually assaulted there; and of those who expressed a gender-nonconforming identity in grades K-12, 78% reported harassment, 35% physical assault, and 12% sexual violence. (9) A shocking 41% of those surveyed have attempted suicide--compared to just 1.6% of the general population. (10) These negative outcomes occur even though trans people have a higher level of educational attainment and civic participation than the general population. (11)

Within such a context, access to gender-affirming identity documents takes on crucial importance. In everyday life, identity documents are frequently needed to "travel, open bank accounts, start new jobs, purchase alcohol ... [and] some cold medicines[,].... [and] vot[e];" (12) and they are also needed in encounters with police. (13) Possessing identity documents that do not match their gender expression exposes trans people to the risks of harassment, denial of services, and even violence in routine social settings. (14) However, only 21% of trans people have reported being able to update all of their identity records--while 33% have not been able to update any. (15) This state of affairs reflects the widely varying policies governing gender reclassification at the federal, state, and local levels, which lead to disparate outcomes for individuals similarly situated with respect to their gender transition. (16)

As a piece of federal documentation, one's Social Security record is of special importance. Ever since the Social Security Number (SSN) became the first unique national identification system in 1935, Social Security records have been used for an "enormous variety" of governmental and commercial purposes, including federal criminal investigations and taxpayer, military, and veteran identifications. (17) Today, Social Security records are used to verify not only Social Security and disability benefits, but also many federal and state welfare benefits (including food stamps), as well as immigration status. (18)

Although the Social Security Act does not require it, the SSA records gender data. …