6 Gender Marker Corrections
6 Gender Marker Corrections cmluwisc Mon, 01/23/2023 - 18:136.1 Venue, Jurisdiction, & Parties
6.1 Venue, Jurisdiction, & Parties cmluwisc Mon, 01/23/2023 - 18:13Louisiana residents may seek a gender marker correction in the parish of residence or of birth.1 Louisiana-born non-residents may seek a gender marker correction only in the parish of birth. There is no specific language regarding incarcerated individuals so presumably they are considered Louisiana residents and may file in the parish of their residence or of birth. The Petitioner’s spouse is a necessary party to the proceedings and must be joined. Petitions seeking gender marker correction are filed against the Louisiana State Registrar of Vital Records via ordinary proceeding. It is permissible to seek both a name correction and gender marker correction concurrently in the same pleading. In that case, the District Attorney must also be named as a defendant.
- 1La. R.S. 40:62(B).
6.2 Requirements
6.2 Requirements cmluwisc Mon, 01/23/2023 - 18:15La. R.S. 40:62–62.1 directly address all proceedings seeking to correct the gender marker of any adult born in Louisiana. The statutes were passed in 1979 and 1981 and amended in 1986. As such, the statutory language does not reflect the significant strides made in the intervening decades in medical care for and understanding of transgender and gender non-conforming individuals.
Under the statute, to qualify for a gender marker correction, a Petitioner must demonstrate each of the following: (1) diagnosis as a “transsexual or pseudo-hermaphrodite”; (2) performance of “sex reassignment or corrective surgery” as part of the Petitioner’s transition; and (3) as a result of the surgical intervention, “the anatomical structure of the sex of the Petitioner has been changed to something other than that which is stated on the original birth certificate of the Petitioner.”
The language of the statue incorporates a reductive and narrow understanding of gender and sex that no longer reflects the social and medical understanding of transitions. As an initial matter, diagnoses of “transsexual” and “pseudo-hermaphrodite” do not currently exist in the Diagnostic and Statistical Manual of Mental Disorders nor are they part of generally accepted medical standards of care. A client who presents with such a diagnosis needs to seek alternative medical care immediately. Moreover, the range of surgical interventions that are currently considered under the umbrella of “sex reassignment or corrective” interventions is vast. The term “anatomical structure of the sex of the Petitioner” is arguably vague as current medical standards of care acknowledge that a person’s “anatomical sex” is comprised of component parts including, among other things, reproductive organs, external genitalia, and secondary sex characteristics such as breasts and facial features.
Ultimately, the determination that these elements have been satisfied is left to the court, so it is imperative to provide a comprehensive, informed, and absolute case in support of your client’s gender marker correction. Courts, like much of society, remain woefully uninformed about the medical standards of care for transgender and gender non-conforming individuals. It is your obligation to educate the court so as to demonstrate with certainty that your client has received the appropriate care and that the legal process is simply serving to confirm and correct information that has already been medically verified and approved.
The effectiveness of this narrative and the level of proof that is required will largely depend on the position taken by the State Registrar who serves as the defendant in the proceedings. As an administrative agency, the position of the Office of the State Registrar is subject to change with each new gubernatorial administration, and resistance can accordingly wax and wane. Remaining vigilant of the political dynamics and atmosphere locally, statewide, and nationally is helpful to inform what your clients may expect in the courtroom and the extent to which you, as their advocate, will need to fight for them.
6.3 Process & Pleadings
6.3 Process & Pleadings cmluwisc Mon, 01/23/2023 - 18:166.3.1 Petition
6.3.1 Petition cmluwisc Mon, 01/23/2023 - 18:17The Petition requesting gender marker correction should set forth the factual basis on which your client is entitled to relief. It is advisable to track the statutory components closely but generically. At minimum, the Petition must establish that your client has received an appropriate medical diagnosis qualifying them for surgical intervention as part of their transition and that the surgical intervention has resulted in a medical status whereby their birth record no longer accurately reflects their gender, thus necessitating the correction of that record. By providing accurate information without excessive disclosure, you can preserve as much privacy for your client as possible. This will make it easier to redact or seal limited portions of the record as desired by your client. As always, give your client the full range of options and allow them to decide how they wish to manage their own information and privacy.
6.3.2 Service
6.3.2 Service cmluwisc Mon, 01/23/2023 - 18:17Once filed, the Petition must be served on the State Registrar for Vital Records. If name correction is sought simultaneously, service must also be made on the District Attorney. Because this is an ordinary proceeding, hearing cannot be set by way of a Rule but must be set for trial via separate Motion.
6.3.3 Answer
6.3.3 Answer cmluwisc Mon, 01/23/2023 - 18:18Having been served, the defendants will likely file an Answer on behalf of Vital Records. This Answer can take many forms and has historically been dependent on the political climate in which the case is proceeding.
6.3.4 Discovery
6.3.4 Discovery cmluwisc Mon, 01/23/2023 - 18:18Prior to setting the matter for trial, the parties must certify that all discovery has been completed. There is a list of the documents that your client should supply as part of the discovery for their case. Be sure to redact the documents to exclude any extraneous personal information not required for the proceedings.
6.3.5 Setting for Trial
6.3.5 Setting for Trial cmluwisc Mon, 01/23/2023 - 18:19Once discovery has been completed, the matter may be set for trial upon motion of the parties jointly or of the Petitioner alone. At the time of setting the trial date it is also best to coordinate submission of the matter on briefs or via live testimony with the possibility of a closed proceeding. Settling these logistical matters informally will reduce costs for your client by saving on filing fees and litigation time, but also makes your role easier by establishing rapport and cooperation with the court and the opposing parties.
6.3.6 Submission on Trial Briefs
6.3.6 Submission on Trial Briefs cmluwisc Mon, 01/23/2023 - 18:20For many people, including the court, submission on trial briefs is preferable. It allows the matter to be decided without live testimony and saves all counsel and the court the burden of participating in a trial. If there is any doubt as to the success of your client’s case, be very cautious in opting for submission on briefs. There can be a logistical benefit to briefing, but that can be outweighed by the emotionally strategic benefit of live testimony.
6.3.7 Submission on Testimony
6.3.7 Submission on Testimony cmluwisc Mon, 01/23/2023 - 18:20If the matter proceeds with live testimony, you must be sure to practice very carefully with your client exactly how their testimony will proceed. They will not only be required to share with the court their deeply personal medical history, but will also need to provide testimony to lay foundation for introduction of numerous documents. In order to care for your client as fully as possible, they should be empowered to give testimony with confidence and trust in you as their advocate and in themselves as a valuable and valid member of our community.
6.3.8 Judgment
6.3.8 Judgment cmluwisc Mon, 01/23/2023 - 18:21When judgment is rendered in favor of your client, be prepared to get at least four certified copies of the judgment for your client’s use. If your client was permitted to proceed in forma pauperis, be prepared to discuss with the Clerk of Court who is responsible for court costs.
6.3.9 Vital Records
6.3.9 Vital Records cmluwisc Mon, 01/23/2023 - 18:22An application to Vital Records must be submitted within 10 days of the rendition of judgment.1 The application must include certified copies of the original Petition and final judgment. Those copies will not be returned to the client, but will be maintained in a sealed envelope attached to their original birth record at Vital Records. That envelope cannot be unsealed unless ordered by the same court that ordered the gender marker correction and only upon request of the person whose record was corrected. All amendment requests are routed to the primary Vital Records office in Baton Rouge, and there can be significant delays in the issuance of the corrected documents. Each application is assigned a case number and case manager with Vital Records. Feel free to follow up with that individual for regular progress updates. While the application is pending with Vital Records, the client may use the judgment to update other records.
- 1La. R.S. 40:62(D).