Ohio’s “Silent” Vital Records Policies

There are approximately 1.4 million transgender people currently living in the United States. We may never have an accurate account of how many gender variant people live here in Ohio, but with a population of roughly 11.7 million, I would confidently estimate it to be in the thousands. According to the National Center for Transgender Equality’s 2015 U.S. Transgender Survey––the largest survey ever to record the experiences of transgender people living, working, or studying in the United States––only 9% of transgender Ohio residents have all of their identity documents (such as birth certificate, drivers license or state ID, social security card, passport) updated to reflect their current and true gender. What’s worse is 68% reported that none of their identity documents reflected the name and gender they used in their everyday lives.

The procedure for legally changing your name is fairly straightforward in Ohio. You can learn more about the process here. The procedure for changing your gender marker on your Ohio Driver License or state ID has also been simplified over the years to include filling out one form with your therapist or doctor. But Ohio is one of only three states that does not change gender on birth certificates for transgender people. When pressed on its “policy” concerning “transgender changes,” The Ohio Department of Health has stated that it lacks the authority to change the gender field on Ohio birth certificates. The state is currently in litigation over this very issue.

Why is this important? Aside from the arguments put forth in the law suit, including the Constitutional rights to equal protection, due process, and freedom from compelled speech, this “policy” is not reflective of the policies of the majority of American and it was not always the case here in Ohio––Ohio does have a history of honoring both in-state and out-of-state court orders directing both name and gender field changes on birth certificates. This same “policy” also does not always apply to intersex people or individuals born with any of several variations in sex characteristics, including chromosomes, gonads, sex hormones, or genitals that do not fit the typical definitions for male or female bodies. With the recent introduction of a new Director of Health and the previously mentioned lawsuit, we might be seeing a change to Ohio’s “policy” soon!  

Why do you keep seeing the word policy in quotations? Because there is no written policy that directly deals with changing the gender field on Ohio birth certificates for either transgender or intersex individuals or their parents on their behalf. An old 1987 court case held that the state of Ohio did not have to recognize out-of-state birth certificates that had been updated to reflect a gender different than the one assigned at birth for the purposes of granting a marriage license, because it went against Ohio public policy (which, at the time, did not permit marriage between people of the same gender).

If there’s no written policy on how to address birth certificates for transgender people born in the state of Ohio, is there a written policy on how to address the gender field for transgender people who just so happen to pass away while in the state? The answer is no – there is no statewide policy! However, in the majority of Ohio’s 88 counties, the medical examiner will use a precursory visual inspection of the body to determine which gender to indicate on the death certificate (i.e., whether the individual has had surgery), and, if there is a question or discrepancy, the deceased’s family members may be consulted. Funeral directors receive a copy of the death certificate and start from there, but it is important to note that absent specific instructions like an advance directive or funeral directive, the funeral home will honor the wishes of the next of kin (which might not align with the wishes of the deceased).

In today’s uncertain political environment, when transgender people often feel powerless concerning autonomy over their own bodies and their own identity documents, there are steps you can take to ensure that your end-of-life wishes are respected and observed, despite what is listed on your birth or death certificate. A great way to give yourself some peace of mind is to connect with an attorney to discuss advance directives and all of your options. It’s 2019, and the ‘T’ in LGBTQ isn’t silent anymore. If you need free legal help, make sure to fill out our intake form to get in contact with one of our attorneys.