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Nine Legal Tips for Transitioning Transgender Youth

June 20, 2019

Transgender identities are gaining more social acceptance.  With that trend, we can expect more transgender people to start transitioning at a younger age.  Transition is the process by which a transgender person recognizes that their authentic gender identity is not the same as the gender assigned at birth and develops a more affirming gender expression that feels authentic.  Social transition may involve changes in name, pronoun, and dress.  Some individuals may undergo medical transition as well, which might include hormone treatments and surgery.

 

Your identity has legal significance and changing it to match your gender identity will involve paperwork procedures with several government authorities.  Transgender people should also be familiar with the laws that protect them against discrimination at school and in the workplace.

 

Below are nine things to keep in mind about the law as you transition.

 

1.) State Law Will Determine Much of Your Transitioning Experience

The more important aspects of your transition will be controlled by the laws in your state.  For example, the rules regarding name changes are set by the states, as are rules for changing birth certificates and drivers licenses.  Anti-bullying protections are set by state law, and so are many anti-discrimination rules.  There is some federal law that will protect you from discrimination at work, and federal law may also help you get medical accommodations at school and give you power to change school records.  Since I practice in New Jersey and New York, I will provide you with some specific tips in this article about those states.

 

2.) A Name Change Is A Public Event

A legal name change is designed to be a public event.  The court records of your name change may be available to the public, but most problematically, you will have to publish notice of your name change in the legal notices section of a local newspaper. 

 

For transgender people, this publicity can be a very serious matter that exposes them to harassment, discrimination, and even violence.  There have been cases where transgender people have received threatening communications from people who saw the legal notices publication of the name change.  Doxxing is another problem.  Doxxing is the Internet-based practice of researching and broadcasting private or identifying information about an individual in order to harass and intimidate them.  Transgender people sometimes get doxxed when someone finds the notice of their name change and then publishes information about their dead name and may circulate pre-transition pictures of you they find on the internet. 

 

A related concern with publication is that newspapers are often published online.  Therefore, fifteen years from now, you might be passing as your preferred gender at work, when someone in the office does a Google search of your name and finds the legal notice of your name change.  This could have negative consequences.

 

Your name change does not have to be public however.  You can work with an attorney to get the publication requirement waived, and sometimes, get your documents sealed so that you can rest assured that you will not be harassed by people who find out about your name change in the newspapers or online.

 

One tip is to get your name changed before you become 18. Juvenile records are more private than adult records and may not be as accessible by people who would seek to do you harm. 

 

3.) Your Gender Identity Should Be Respected At School

In New York and New Jersey, the Departments of Education have released guidance stating that students’ preferred gender identity should be respected upon your request.  Teachers and staff should address you by your preferred name and pronoun.  You should be allowed to dress in a way that affirms your gender.  You should be allowed to use the restroom and locker room for the gender that makes you most comfortable.  You should be allowed to participate on the sports teams the affirm your gender, and participate in any activity that other students can, even if other students or parents complain.  Student ID’s and attendance forms should match your preferred name and gender identity as well.  All of this should be given to you without having to provide proof of a legal name change, medical transitioning, or even a note from a parent or doctor.  

 

4.) Make Sure Your School Amends All Former Records

In New Jersey and New York, the Departments of Education have commanded schools to change records to match your name and gender identity, and old ones with your dead name and sex at birth must be kept confidential. 

 

But old records could haunt you.  For example, if you transition during high school, college admissions officials might get transcripts from the beginning of high school that have your dead name on them, thus outing you.

 

The safest bet is to request the amendment of all student records under the Federal Education Rights and Privacy Act (FERPA).  FERPA permits parents and students 18+ to request the correction of “inaccurate records.”  Your school may resist the command to change all your records, or they may agree to it and then not do so.  You may wish to work with a lawyer to make sure all your school records get amended.

 

5.) Stock Up On Birth Certificates When You Change Yours

In New York, you still need a court order to change your name and/or gender on a birth certificate, but in New Jersey, the process is a snap thanks to the Babs Siperstein Law.  Under this law, changing your birth certificate is an inexpensive process that requires only the filing of a form and proof of identity with the Department of Vital Statistics.  You have the choice of selecting “M,” “F,” or “X.” 

 

For minors, the forms must be filled out by a parent, and the parent’s proof of identity must have the same name as the name of the child’s birth certificate.  In the event that isn’t the case, proof of the parent’s legal name change must be filed.  For both minors and adults, a certified judgment changing your name must also be submitted if you are correcting your name too.

 

Your amended birth certificate will not reflect the fact that it was amended, and the original will be kept under seal, assuring that your birth certificate will not out you as transgender. 

 

At the time you apply for your amended birth certificate, the Department of Vital Statistics will provide up to 25 copies of your birth certificate for $2 each.  Stock up.  They cost $25 a piece if you request them at a later date.

 

6.) You Can Use the Restroom Consistent With Your Gender Identity at School and Work

The Departments of Education in New York or New Jersey have both taken the position that transgender students can use the restrooms and locker rooms that correspond with their gender identity.  This applies to restrooms and locker rooms as well.  Additionally, any student who wishes to have a private restroom or changing room due to privacy concerns should be provided one. 

 

At work, you should also be afforded the right to use the restroom and changing rooms that correspond to your gender identity.  The Equal Employment Opportunity Commission handed down a case in 2015 called Lusardi v. McHugh, which found that requiring a transgender woman to use a “single shot” restroom violated her civil rights.  Even with the Trump Administration’s efforts to backpedal trans rights, Lusardi v. McHugh remains binding law at the EEOC, which means most employers have to follow the law of this case. 

 

7.) Your School Must Accommodate Gender Dysphoria

Gender dysphoria can cause you to have trouble learning or make it hard to participate in certain school activities.  Gender dysphoria can be a disability, and with appropriate documentation, such as a doctor’s note, your school is required to make reasonable accommodations.  You should request a “504 Plan” that formalizes special accommodations, whether it’s an alternative to traditional gym class or traditional sexual education classes, a key to a private restroom, or even extra time on exams.

 

8.) You Cannot Serve in the Military – For Now At Least

People assigned female at birth have passed as men to fight in the military since the Revolutionary War.  But beginning in 1960, the military explicitly outlawed “transsexuals” from the military on the belief that “transsexualism” was a mental disorder.  That ban was overturned in 2016.  In 2017, the military paid for the first gender-affirming surgery of a soldier, a trans-man who had already been on hormone replacement therapy.  But in April 2019, a temporary ban went into effect.  The ban requires anyone serving in the military to present as the gender they were assigned at birth.  The ban is set to expire in March 2020.

 

9.) You Must Register With Selective Service if You Were Assigned Male at Birth

Selective Service is the U.S. agency that maintains information on those subject to military conscription.  All “males” must register w

 

ith Selective Service within 30 days of their 18th birthday.  Compliance with the Selective Service rules is required in order to apply for college financial aid with the FAFSA form.  But who is “male” for the purposes of FAFSA.  The answer is: anyone who was assigned male at birth.  In the unlikely event of a draft, individuals may be disqualified from service for being trans, but nevertheless, the rule is that if you were identified at birth as male, you must register with selective service.  Trans males do not have to register with Selective Service. 

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October 31, 2019

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