Asserting that his court was without authority to act, New York Supreme Court Justice Charles J. Markey (Queens County) ruled on February 28 that a petition by a transsexual man asking the court to officially declare that he "will be known now and forever as being of the male gender" could not be issued by the court. Justice Markey's decision, A.B.C. v. New York State Department of Health, NYLJ 1202544729247, at *1, was published by the New York Law Journal on March 9, 2012.
According to Justice Markey's oipnion, the petitioner, identified by the court by the initials "A.B.C.", was born in Orange, California, and identified at birth and on the birth certificate as female. "On May 25, 2011, petitioner underwent irreversible gender reassignment surgery, altering petitioner's sexual characteristics from female to male," wrote Markey. A.B.C. had previously obtained a legal name-change order from a different New York trial court, establishing a male name. "The Department of Public Health of the State of California, on August 5, 2008, allegedly issued an amendment of A.B.C.'s birth certificate to reflect the court-ordered change of name," continued Markey. A.B.C. filed "this special proceeding asking this Court to issue an order stating that 'A.B.C., born…in the female gender, will be known now and forever as being of the male gender.' Petitioner states that he intends to submit a copy of such order to the State of California to obtain an amended birth certificate changing the gender listed thereon to male."
A.B.C. named as respondent to his petition the New York State Department of Health (NYSDOH), which registers births and issues birth certificates outside of New York City. (The NYC Health Department handles this task within the city.) However, Justice Markey observed that NYSDOH "cannot change birth certificates issued in other states," and, consequently, as the NYSDOH argued in support of its motion to dismiss the case, "has no duty, responsibility, or stake in this application." Although NYSDOH has set up an administrative process for transgender individuals to change their New York State birth certificates, "respondent has no role to serve in reviewing or evaluating the gender change of a person born in California." As a result, concluded Markey, the petition against NYSDOH must be denied.
A.B.C. is representing himself in this proceeding. There is no indication in the opinion whether A.B.C. is a lawyer or had any legal advice, but the court points out that "the prosecution of this matter in the form of a special proceeding is not authoritized" under the state's Civil Practice Law & Rules 103(b); instead, A.B.C. should have brought a declaratory judgment action. However, Justice Markey declined to "convert" the case into such a proceeding on the ground of futility. "This proceeding does not present an actual contest involving an adverse party," he wrote, so declaratory relief would not be authorized under New York law.
"New York State has no statute giving a party a right to petition a court to recognize a change of gender and there is no authorization from the leigslature for the court to direct the amendment of a birth certificate as to a person's sex," the judge wrote. The Public Health Law lists grounds for changing birth certificates, but a change of sex is not listed in the statute (PHL 4138). Although several other states have addressed this issue in legislation, the dysfunctional NY State Legislature has not gotten around to dealing with most important issues of transgender law. Once again, Markey pointed out that the state and NYC health departments have adopted administrative procedures for changing birth certificates, but they only have authority to issue or alter certificates concerning people born in New York.
"Absent a statutory framework, and since the status claimed by petitioner is not challenged or denied by an adverse party who has or asserts a concrete interest in this issue so as to create a genuine controversy, the relief sought by petitioner is unavailable in this Court," concluded Markey.
However, Justice Markey pointed out that there is a procedure available in California for A.B.C. to acquire a new birth certificate, and it doesn't appear to require any kind of order from a New York court merely because A.B.C. now resides in New York. The California legislature, much more adept at dealing with social change, has authorized California courts to order the issuance of new birth certificates reflecting gender reassignment for people who were born in California but who no longer reside there. The California law has been on the books since 1977, and was recently amended to make things simpler by not requiring that petitions for this purpose be filed in the county of birth. The Superior Court in every California county now has authority to order the officials in any other county of the state to issue such a birth certificate upon presentation of appropriate proof.
Judge Markey's decision is understandable, in light of the lack of appropriate legislation in New York. But it also appears somewhat timid, in light of a ruling from another state in a virtually identical situation. In 2003, the Maryland Court of Appeals (that state's highest court), ruled in In re Heilig, 816 A.2d 68, that the circuit courts of that state may rely upon their general equitable powers to issue an order recognizing a gender reassignment, in the absence of any direct statutory authority to do so. The case involved an individual who was born in Pennsylvania but resided in Maryland when transitioning from male to female sex. Robert Wright Heilig petitioned the circuit court to order a name change to Janet Heilig Wright. That court granted the name change but denied the requested order to declare the petitioner to be female, stating that even if it had equitable jurisdiction to grant the order, Heilig had failed to show a permanent gender reassignment, merely presenting documents stating that he was in the process of transitioning. The Court of Appeals ruled that the circuit court did have equitable jurisdiction and could issue the requested order upon appropriate proof of a permanent change of sex.
So the question is whether the New York Supreme Court (the NY trial court of general jurisdiction) would have the equitable power to issue such an order, were the case properly brought as a declaratory judgment action. (The Maryland case did not name a respondent or defendant; thus the title In re Heilig, rather than something like Heilig v. State DOH.) In this case, Justice Markey noted that A.B.C. had presented evidence of having undergone irreversible gender reassignment surgery, so there should be no basis on the merits for denying the request for declaratory relief if the court has jurisdiction to grant it. One distinction from Maryland is that the Maryland legislature had authorized sex changes on Maryland birth certificates, which was not directly relevant to Heilig's case because Maryland had no authority to order Pennsylvania to issue a new certificate. The court found that statute to be a source of public policy supporting official recognition of a sex change. In New York, the court would have to rely on administrative procedures rather than a statute as a source of public policy.
Unfortunately, the New York legislature has yet to enact the Gender Identity Non-Discrimination Act, which has been pending for many years. Such an enactment would signal a public policy against gender identity-based discrimination and might be useful in this kind of case. But it would be even more useful if the New York legislature would come into the late 20th century (!) and address directly more of the basic legal issues presented by gender identity and expression.
Why shouldn't a New York resident who has gone through gender reassignment be able to get an official declaration or certificate that could be useful in establishing their legal sex? New York State — and especially New York City — is home to many immigrants. Census data suggest that a very high proportion of the City's population at any given time is made up of people born in other countries or other states. The City as a world center in many different categories, naturally attracts many people, and it would not be surprising to learn that a high proportion of transgender New Yorkers who undergo reassignment were born elsewhere. Surely, the City and State should take steps to accommodate their need for some official recognition of their sex.