Why birth certificates DO matter

By Claire McNab

December 1998

It has been suggested to me a few times that for trans people in the UK, our uncorrected birth certificates are not really all that important; that many trans people have found that in their everyday lives, there are many other things which cause far more problems … and that as campaigners we may place too high a priority on the issue.

I can understand why people might reach such a conclusion, why they might feel that social hostility or lack of medical assistance are more pressing issues … but I want to explain briefly why I think that this analysis is misguided.  Without wanting to get into an argument about whether one form of discrimination is more important than other (and those two examples are important), I’d like to illustrate the ways in which birth certs are very important to all trans people.

• Press For Change does not actually focus on changing birth certificates as an aim of the campaign.  As the Mission Statement makes clear, “The final goal of the campaign is to achieve full legal recognition of transsexual people in their proper gender roles”.  But as long as the law determines the sex of a person by referring to their birth certificate, we have no choice but to seek changes to birth certs — it’s the only way we can achieve our goal.
• Birth certs may not in themselves be seen as a huge problem: some people find it very distressing to have a document which gets their sex wrong, while others find they are less upset by it.  But whatever anyone feels, birth certs remain the legal mechanism by which the law gets our sex wrong … and as such they are the means by which discrimination can be legalised and facilitated.
• Their disclosure for employment purposes gives the employer the info she needs to decide that she doesn’t, after all, really need the best-qualified person … that other qualities can be re-emphasised to reject a trans person.  How often does it happen?  Hard to tell … and PFC always advises trans people not to disclose their trans status when applying for a job, and to consider sueing if turned down for being trans (because since the 1996 P-v-S case, such discrimination is illegal).  But how many trans people have decided against completing the application form if it says “please enclose birth cert”?  And how many employers have found some way of disguising their discrimination once the applicant finally has to reveal their legal status?
• The existence of uncorrected birth certs means that a trans person has to reveal their status every time they take out certain types of insurance policy … or risk having their claim legitimately rejected.
• Their unamended status requires us to declare our old names if we have to appear in court, which probably propels many trans people to avoid the court system, even when they’d do better to take their case there.  Access to justice?  Not such easy access if you’re trans.
• Their failure to record the facts denies recognition of families, so that trans people who are not birth parents but fulfil a parental role are barred from such critical things as the right to give or withhold consent to a child’s medical treatment.  We know of several couples where one or more partners are trans and have children: ever thought about what happens to those children if they fall ill while the one legally-recognised parent is away?  It’s a gruesome prospect … because the other parent doesn’t have the right to consent to treatment.  And that lack of recognition means that the unrecognised parent also can’t give consent to the child going on a school trip, or do any of the other things which legally-recognised parents can do for their children.
• Birth certs are what cost a certain trans police officer her job, despite the P-v-S case … and prevent any other trans people from being hired by the police.
• Ever reported to the authorities the death of a relative?  If you do, and you’re a trans man, the coroner is supposed to record your identity as “John Jones, daughter/sister/niece of the deceased”.  This probably doesn’t happen often, but it’s horrible when it does.
• What happens when a trans person dies?  Their death cert will record their sex and name as per the birth certificate … a painful embarrassment for those left behind as well as a slur on the deceased.
• What about trans people who claim social security benefits?  Forced to choose between some underpaid junior clerk reading the evidence that the person is trans (and quite possibly leaking it if there appears to be mileage in so doing … it’s happened in several cases we know of), or having their records sealed to make dealing with the authorities even more difficult?  There’s a lot of people on benefits, and I don’t think we should forget their plight: they get reminded of it on a weekly basis.

Of course, it’s true that fixing the birth certs problem will not of itself end discrimination against trans people, any more than 23 years of the SDA has ended discrimination against women … but it will, finally, remove the last basis on which discrimination can be legally facilitated and legitimated.  Despite the importance of the P-v-S case in ensuring that trans people are covered under the SDA, there are still plenty of ways in which people can — and do — legally discriminate against us.

I think the race issue is an excellent example: legislation in the 1970s didn’t end the problem, and councils who took up the issue in the early 80s were pilloried (often by the same politicians who are now happily supporting inclusion) … but what legislation did do in all those years was give people a tool to fight back.  And in time, that legally-supported fightback began to filter through into policy changes, both by the state and by private institutions … as employers began to realise, for example, that it is very expensive to reject an applicant because they are the wrong colour.

And the last thing about birth certs is that I think they are psychologically important, both to trans people and their families.  Having our fundamental legal identity defined by a piece of paper which claims us to be someone other than who we really are is hurtful, not just to us as trans people, but to those around us … to our families, lovers, and to people who who have to deal with our affairs.  It may not hurt all the time, nor every day, but it is always there, always lurking in the background ready to complicate our lives and insult our sense of self.

Those battling against such problems as NHS obstructiveness will be well aware that getting our birth certs fixed isn’t the only issue … but it is a very important one.  And winning this battle will make it much easier to tackle many of the other difficulties we face.

The examples cited here are only a small sample of those I could list.  For a more detailed discussion of the issues, see the recently updated Campaign issues page and the A-Z of trans people’s discrimination.