Matter of Birney v New York City Dept. of Health & Mental Hygiene

Annotate this Case

Download PDF

Matter of Birney v New York City Dept. of Health & Mental Hygiene 2012 NY Slip Op 30654(U) March 16, 2012 Supreme Court, New York County Docket Number: 103363/11 Judge: Paul G. Feinman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 311912012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY HON. PAUL 0. f EIWAN PRESENT: PART Id Justlce p - p p p - - p p p p - Index Number 1033631201I MOTION DATE BIRNEY, LOUIS LEONARD vs NYC DEPT. OF HLTH & MENTAL MOTION SEQ. NO. SEQUENCE NUMBER. 001 ARTICLE 78 - --- Upon the foregoing papew, it is ordered that this motlon I s U UNFILED JUDGMENT This judgment has no1 been entered by the County Clerk and notice of entry cannot bc served based hereon. T O obtain entry, counsel or aulhorizcd representative must appear in person at the Judgment Clerk's Desk (Room 141B. ) , J.S.C. / 1. CHECK ONE: .................................................................. 0 NON-FINAL DISPOSITION ..MbTloN IS: 0GRANTED 0DENIED RANTED IN PART 0OTHER 2. CHECK AS APPROPRIATE: ........................... 0SUBMIT ORDER 3. CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 0DO NOT POST 0FIDUCIARY APPOINTMENT 0REFERENCE &ASE DISPOSED P [* 2] Index Number Mot. Seq. No. 103363/20 1 1 00 1 -against- DECISION, O W E R AND ,JUDGMENT For thc Respondent: Michael A. Cardozo, Esq. C:orpowtion Counscl of City of New York Hy: Chi-istirlnL. I loggan, Esq. For the Pctitioner: Kurland, nonica & Assocs., PC By: Gina M. I3onicik 13scl. Yetta G. Kurland, Ihq. 304 Park Ave. So., ste 200 New Ynrk, NY 10010 (212) 253-091 I Gabriel Tnussig, Bsq. Shciyl Ncultld, Csq. 100 Church St.. rin 5-154 Ncw York, NY 10007 (212) 788-0461 I apcrs considered in review of this petition to vacate: UNFILED JUDGMENT Tk@fiP&rnent has no1 been entered by the County Clerk ,Atid notice or entry cannot be served based hereon. To t$.datn enlry, counsel or authorized representative must Papers Noticc of Pelition, Ver. Pctilian. Exhibits Ver. Answer. Exhibils, Mcmo of IAW Pet. Mcnw of Law in lieply appear win person at the - Desk (Room PAUL G. FETNMAN, J.: In this Article 78 proceeding, petitioner sceks, pursuant to CPLR 7803 (l), an order ,,. compcll ing respondent to produce an amendcd birth cei-tificatc. He also seeks reasonable attorney s fees. Respondent s verified answer opposcs and seeks dismissal of the petition. For the reasons which follow, the petition is granted to the extent that it is rcmrmded to the respondent agency ibr rcconsideration in accordance with this decision. The attorneys letters dated and sent aAcr the motion was tnarkcd submitted have not bccn considered. 1 [* 3] Petitioner sceks an amended birh certificate to reflcct his corrcct name and gender.2 Petitioner states he is a transgendcr male who has undergone convcrtive surgery (Ver. Pct. 1 2).3 Respondent is the New York City department charged, among othcr duties, with supervision and conlrol of the registration of births and deaths (Ver. Ans. 7 47, citing section 556 of NYC Charter). At issue is thc New York City llealth Code provision that a new birth certificate shall be f k d when ( 5 ) The name of the person has been changed pursuant to court order and proof satisfactory to the Ilepartmcnt has been submitted that such person has undergone convertive surgery. 24 RCNY 207.05 (a). According to the verified petition, on April 1,20 10, petitioner submitted an application to 2LL Gender identity, according to the New York City I luman Rights Conimission s GIJIDELTNES REGARDING GENDER IDENTITY DISCRIMINAI ION (2004, p, 2), is an individual s sense of being either male Or fertlalc, man or woman, or soniething othcr or in-between. Gender expression describes tlic external characteristics and behaviors that ate socially defined as either masculine or ferninjnc, such as dress, mannerisms, speech patterns and social interactions. (Ser http://www.r~yc,gov/cchr under Publications, Guidelines: Gender Idcntity Discrimination). Tlic New York City Human Rights Law provides: The tcmi gender shall include actual or perccived sex and shall also include a person s gender identity, selflimage, appearance, behavior o r expression, whether or not that gender identity, self-image, appearance, behavior or expression is differcnt from that traditionally associated with the legal sex assigned to that person at birth. NYC Administrative Code 5 8-102 (23). 3 The term transgender, according to the New York City Human Kights Commission s GUIDELINES REGARDING GENDER ILXNTITY DISCRIMINATION pp, 2-3) is an umbrella term that includes anyone whose (2004, gendcr identity and/or gender expression does not match society s expectations of how an individual who was assigned a particular sex at birth should behave in relation to thcir gender. l hc tenn includcs, but is not limited to: pre-opcrative, post-operative and noli-operative transsexuals who niny or niay not use hormones. (See htlp:liwww.nyc.gov/cclir tinder PublicatioIis, Guidelines: Gendcr ldentiry Discrirnination), The Gay & Lesbian Alliance Against Dcfarnation (GLAAD), an organization dedicatcd to fighting homophobia and discrimination in the media, provides a Transgcnder Glossary of Ternis as part of its online Mcdia Reference Guidc (See www.glaad.org/referencc/transgender). GLAAD states that the tenn transgender may include but is not limitcd to: transsexuals, cross-dressers and other gender-variant people. Transgcnder people may identify as female-to-male (YTM) or tnalc-to-femalc(M I F). . . Transgender people may or may not decide to alter their bodies honnonally and/or surgically. 2 [* 4] thc New York City Department of llcalth and Mental Ilygienc (DHMH) to amend his birth certificate (Pet. 7 6; ex. A). He completed a Birth Certificate Correction Application Form which, ainong other picces or information, asked lor the number of the Birth Certificatc at issuc and its information, and provided space for him to indicate what is wrong with what the Certificate says, and what it should say (Mot. cx. A). Petitioncr indicated that his first and middle namc, and his gcnder, are incorrect, Speciiically, his birth name, Luella J,illian Birney, and gender, female, should be corrccted to rcad Louis I,eonard Bimcy and male. Petitioner s application was accompanied by: copies of his original Certificate of Birth issued by Wyckoff I-lcights Hospital, Brooklyn, Ncw York; the Order issued by Supreme Court, Kings County on Noveinbcr 10, 2009 authorizing petitioner to assume the name Louis Leonard Birney upon coinplying with the provision of Article 6 of the Civil Rights Law and this Order, and publication of a notice4; and a certified letter from Toby R. Meltzer, M.D., dated March 1, 201 0, stating that Dr. Meltzer had performed Female to Male Gender Reassignment Surgcry on petitioner on May 12,2009, that the surgcry was performed and successfully completed at the Greenbaum Surgery Center Scottsdale Healthcare Osborne, in Scottsdale, Arizona, in compliance with The World Professional Association for Trmsgender Ilealth (WPATH), and that petilioner is now a lu ullyfunctioning male (Vcr. Pet. ex. A). By memorandum dated July 6, 20 1 0, signed by respondent s Director of Corrections and Amendments IJnit, respondent indicated that in order for an ainended birth certificate to be placed on file in its Office of Vital Rccords, pctitioner should return his application with 4 Tlic Order expressly provided that it was not to be iiscd as evidence that the gcrider of the petitiorw has been clianged from fcninle to mile. ( I d ) . 3 [* 5] particular missing items (Vcr. Pet. ex. ¬3). Spccifically, the Departinelit requested a [dletailed Surgical Operativc record including the date of surgcry ; [c]onvertive Surgery (if apply to yo~i) ;pre- and post- operative psychiatric evaluations signed by a psychiatrist or clinical psychologist, and a [c]opy of your current valid photo identification (Ver. Pet. ex. B). The requcst for the pre-operativc evaluation was hand-written (id.), Petitioner respondcd t h o u g h his attorney by leller o l September 23,201 0 (Ver. Pet. ex. C). His attorney contended that the application matcrials prcviously submitted sufficiently comply with thc requirenicnts set f orth in thc New York City Health Code (24 RCNY $ 207.05). In particular, Dr. Mcltzer s certified letter stating that female to male reassignment surgery was successfully performed i n compliaiice with WPA I H standards, and that petitioner is now a fully fiinctional male is, according to petitioner s counsel, sui ficient under the Board of Health Rule to prove that he has undergonc convertive surgery (Ver. Pet. ex. C). Counsel therefore resubmitted petitioner s application and materials, aloiig with a copy of his New York State Identification Card, requestcd that respondent issue the corrected Certificate of Birth, and indicated that petitioner would cominence a summary proceeding should respondent fail to issue thc Certificatc (Ver. Pet. ex. C). Respondent s Director of Corrcctions and Amendments Unit mailcd to petitioner at his home addrcss, rather than to his attorney s oiXce, a second memorandum communication, dated November 1,2010 (Vcr. Pet, ex. D). It did not directly respond to Ihe attorney s letter but set forth a reviscd list of forms and docurncnts tllat were iiecessary for petitioner to provide, specifically information conccrniiig the reconstruction procedure, a post-operative examination by a physician attesting that a surgical change of gender had taken place, and a post-operative 4 [* 6] psychiatric cvaluation (Vcr. Pet. cx. D). T etitioner cotnInenced this Arliclc 78 proceeding on March 18, 201 1. Jle seeks a judgment ordering t11c DHMI-J to providc him a corrected Cleriilicate of Birth, arguing that thc DHMH s rcquirerneiits violate his statutoiy rights and illegally impose an cxtra-statutory legal burden on him and on other transgendcr individuals (Vcr. Pet. 1 12-13). Hc argucs that 13r. 7 Meltzer s certified lcttcr fully complies with the provision under the New York City Hcallh Code requiring submission of satisfactory proof that the applicant has undergone convertivc surgery in order lbr a ncw Birth Ccrtificate to be filed, and that the highcr burden of p r o d dcmandcd by DHMH violates the Ncw York City Hitman Rights Law which prohibits discrimination on the basis of gender (Vcr. Pet. 11 15-21). I-lc also argues that respondent s request for surgical and 1 psychiatric records is an invasion of his medical privacy (Ver. Pet. 77 22-27). In addition, he argues that respondent s requircnients are disproportionately burdensome when compared with the requirements imposed by agencies of the State and federal goverivnents pertaining to emendation of other documents to reflect correct gender (Ver. Pet. 77 28 -37). Respondent s answer seeks dismissal of thc petition on several grounds. It argues h s t that any claini that its actions are arbitrary and capricious is time-barred. In addition, it argues that as the New York City Health Code provides that the DHMH shall detenniiie what proof is necessary to establish that an individual has underdone convcrtive surgery (24 RCNY 207 [a] [ 5 ] ) ,it is rational and reasonable to require applicants who seek to alter their birth certificates as to their sex to provide documentaiy proof that they have permanently transitioned to a different 5 According to respondent s attorney, the instruction letter was redrafted becuuse it was not sufficiently clear, and thc second letter specifies exactly what is required from any applicant seeking lo correct a birth certificate based 011 completion of convertive surgery ( Transcript of Oral Argument, hereinafter Tr. at p. 22). 5 [* 7] sex, and reasoiiablc to require petitioner in this instance to provide more than a doctor s letter. Rcspondent contends that it has a substantial interest in requiring disclosure of the pertinent medical rccords so that it can ensure the accuracy of birth certificates, which are vital records. It further argucs that petitioner cannot assert a right to privacy with regard to his medical rccords where he affirniatively seeks rclicf related to his medical condition, and statcs that in any evcnt the inlbrniation is not disseminated to the public. It also argues that it docs not violate the Huiiiaii Rights Law (NYC Administrative Codc 8 8-107 [4] [a]), which prohibits discrimination based 011 gcnder, among other protected classes, in matters of public accommodation, in part because issuing a birth ccrtificate does not fall under what is meant by public accommodation. 11 arrgucs as well that becausc birth certificates categorize based on persons genitalia, i.e., their biological sex, the DHMI-T will only change the description on a birth certificate if the applicant establishes he or she has the genitalia that corresponds to the requested designation on the birth certitlcate. Furthermore, classification based on biological sex, respondent notes, has been found nondiscriminatory in Hispunic AIDS Forum v Listale ofBruno (16 AD3d 294,298-299 (1 Dept 2005), which found no violation of the Human Rights Law as to gendcr where a rcstriction, such as for public restrooms, is based on biological sex rather than an individual s biological selfimage. Respondent contends there also can be no claim of a violation of equal protection, because a transgender pcrson seeking to change the Birth Certificate s designation of sex is not h Under the Henllh Code, (b) When R new birth certificate is filed pursuant to this section [allowing change of sex based on proof of convcrtive surgery], the original birth certificatc, the application for a new birth certificate and supporting documents shall he placed under physical or electronic seal, and such scal shall not bc broken cxcept by order of a court of competcnt jurisdiction. 24 RCNY 207.05 (b). 6 [* 8] similarly situated to a person seeking to correct a ministerial error as to their sex crcated by thc hospital at birth. Respondent also argucs that the claim seeking mandamus to compel inust Gil becausc issuing a corrcctcd birth certificate is a discretionary rather than ministerial act by thc Department, over which the court has no jurisdiction. Finally, it argues that petitioner is not entitled to attorney s fees as tlic damages are not incidental to the primary relief sought. Anulysis It is a wcll-settled rule that judicial review o l administrative determinations brought pursuant to Article 78 of the CPLR is limited to the grounds invoked by the agency (Matter of Aronsky v Board of Educ., 75 NY2d 997 [ 19901). The decision of an adrninistrativc agency is entitled to deference by the courts (see, ,Shmienfov World Yacht Inc., 10 NY3d 70, 79 [ZOO81 [ construction given statutcs and regulations by the agency responsible for their administration, if not irrational or umeasonablc, should be upheld (see ChestcrJeZd Assoc. v A I State Depl. of : Lahor, 4 NY3d 597, 604, 830 N.E. 2d 287, 797 N.Y.S.2d 389 [2005])] ). Reviewing courts are not empowered to substitutc their own judgment or discretion for that of an administrative agency merely because they are of thc opinion that a better solution could thereby be obtained. (Peconic Bay Broadcasting Corp. v Board qfApp., 99 AD2d 773, 774 [2d Dept. 19841). The court may only decide if thc agency s determiiiation can be supported on any reasonablc basis (Mutter oJ Cluncy-C. ullcn S t n r g e Co. v Bourd of Elections qf the City oj N Y., 98 AD2d 635, 636 [lqtDept 19831). The test of whether a decision is arbitrary or capricious is determincd largely by whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact. (Mutter cfl elZ v Board OfEduc., 34 NY2d 7 [* 9] 222,232 [I 974]), quoting 1 N.Y. Jur., Admin. Law, $ 184, p. 609). Once the court finds a rational basis cxists for the determination, its review is endcd (Mutter ofSirllivan Counly Ilurness Racing Assoc., Inc. v Glmscr, 30 NY2d 269,277-278 [I 9721). An Article 78 proceeding agaiiist a public body may be commenced only when a matter has been finally delerinincd (CPLR 7801 [l]). CPLK 217 (1) provides that an Article 78 procceding must be comnicnced within four months of the date of the final determination (Curter v State o f N c ~ ~ 95 NY2d 267, 270 [2000]). An agency determiiiation is deemed filial York, when the petitioner is aggrieved by the deterinination (Biondr.,v New York State Bd. CfPnroIe, 60 NY2d 832, 834 [1983]). If therc is furthcr administrative action that could be taken to prevent or ameliorate the harm, then conimencernent of an Article 78 proceeding would be premature (see, Chiirch of slt. Puul & St. Andrew v Barwick, 67 NY2d 5 10,520 [ 19861, ccrt denied 479 U.S. 985 [1986]). Respondent s threshold argument that petitioner is timc-barrcd from commencing this special procceding is without merit. Respondent s memorandum/lettcr of July 6 2 0 10 requested that petitioiicr return [his] application with particular missing documents. This cannot be held to be the Dcpartment s final determination. Petitioner s attorney s letter of September 23, 201 0 resubmitted the same appljcation, although this time with a photo idcntification, and indicated that if respondent f d e d to accept the application as submitted, an Arliclc 78 procecding would be cominenced. In response, respondent s November 1,20 10 memorandu1dletter listed particular items that were required in order t o have his birth certificate amended. It was from the receipt olthis lelter that petitioner was on iioticc that his application had been denied. Petitioner iiicludes a copy oi thc mailing envclopc in which rospondent s 8 [* 10] November 1, 201 0 communication was inailed directly to pctitioner; this envclope was postmarked on November 16, 201 0 (Ver. Pct. cx. 1)). Allowing fivc days for receipt of the niailiiig (CPLR 2103 [b] [2]), llie statute of limitations did not begin to run until Novcinber 21, 201 0.7 Petitioner therefore timely commenced the summary proceeding by filing his notice of petition and petition oii March 18, 201 1, The crux of the parties contentioils is wlictlicr respondent has acted arbitrarily and capriciously in its response to petitioner s application. Because the legal understailding of transgender persons is evolving in response to scientific and psychological developments, as well as in response to advocacy organizations efforts to secure full inclusion of transgender persons into our society without discrimination, it is helpful to summarizc the history of the pertinent Health Code provision. Section 556 (c) (1) of the New York City Charier gants the New York City Department of Health and Mental Hygiene the jurisdiction to supervise and control the rcgistration of births in New York City. Pursuant to Section 558 (c) of the Charter, thc New York City Board of Health, through the Health Code, regulates the means of registering births, and of filing, maintaining, changing and altering birth certilicates. Section 558 (b), (c), and (6) o l the Charter empowers the Board of Health to add to, altcr, amend or repeal any part of the Health Code. Article 207 of the Health Code provides for the correction and arncndment of birth certificates. Prior to 1965, the Health Code did not specifically pemiit birth certificates to be amended to provide for a ch mge of sex in cases of individuals who underwent convertive 7 If respondent had mailed to doctrment to petitioner s auorney, the running of the statute of limitations would h a w coiiiiiiciiced as of the date of mailing, i.c., Noverriber 16, 201 0 (CPLR 2 103 [b] [21). 9 [* 11] surgery, although this may have occurred on occasion (,see Mutter ofAnonyn~ousv Weiner, 50 Misc 2d 380, 385 [Sup Ct, NY County 19661). In 1965, in rcsponse to an application by one such individual for the issuaiicc of a ncw birth certificate, the Board of Health requested that the New York Academy of Medicine study the issue of chLngingbirth certificates of transsexuals, i.e., transgender individuals who have undergone surgery to assume the physical body of the other sex (id.at 381-382).8 A committee or the New York Academy of Medicine issued a report in October 1965, concluding that male-to-female transsexuals are still chromosomally males while ostensibly [males, iinding it questionable wlietlicr laws and records such as the birth certificate should be changcd and thereby used as a means to help psychologically ill persons in their social adaptation, opposing a change of sex on birth certificates of trmsscxuals, and that thc desire of concealment of a change of sex by the transsexual is outweighed by thc public at interest for protection against fraud (id, 382; see ulso Mutter oj Hurtin v Director cfLhr. of Records c!i Statistics, Dept. c~f lleullh uj City qf N. X , 75 Misc 2d 229, 23 1 [Sup Ct, NY County 19731). Relying on thc report of the Ncw York Academy of Medicine, the Board of Health then passed a resolution that the Health Code not be amended to provide for a change of sex on birth certificates in c a w of transscxuals. (Weiner, 50 Misc 2d at 383; Mutter [$Hurtin, at 231). In 1971, however, the Board of Health amended the Health Code to add section 207.05 (a) ( 5 ) , which provides that a new birth certificate can be filed when [tlhe name of the pcrson W ~ . i n ~ r . other earlier decisions used the tenn "transsexual" to mean those individuals who have and undergone corivertive surgcry. This decision employs Ihc tern1 transgender in dcfcreiice to petitioner s selfdescription and in cognizance of the explanation set forth in the GLARD Media Reference Guide - Transgender Glossary of Terms, that lraiissexud is iiii older tcini which originated in the mcdical and psychological communities, and thnt muny transgender people do not idcntify as transsexual, (See www.glaad.org/reference/transgender.) 10 [* 12] has been changcd pursuant to court order and proof satisfactory to the Department has been submitted that such pcrson has undergone convertivc surgery. Under this provision, the DHMTJ began to issue to transscxual applicants, new birth certificates which reflccted a new name, but oiiiittcd any designation ol sex, that is, thc section of the birth certificate that identified the person s sex was left blank (see, c.g. Mcrltur qj llmlin, 75 Misc 2d at 231-232). The Department s rehsal to designate a sex on new birth certificates issued to transscxuals was upheld against legal challcnges, in part based on defercnce to the expcrlise of the R o a d of Health and the findings in the 1965 report of the New York Academy of Mcdiciiic, even while courts recognized that at least some findings of the 1965 report were questionable (.we Anonymous v Mellon, 91 Misc 2d 375, 378-379 [Sup Ct, NY County 19771; Matfer of Hurtin, 75 Misc 2d at 23 1; see generdly Wcnstrom, Comment, What Ilie Birth Ckrtificate Shows: An Argument to Kernoiw Surgical Royzrirement,v~fiom Birth CkrtijficuteAmendmcnl Policies, I 7 Law & Sex. 131 , 136-142 [200S]). The Department s policy ol omitting any identification of sex on new birth certificates issued to transgender individuals remained in place until late 2006. In 2006, after sevcral years of discussion and in response to concerns raised by advocates for thc transgender community, the DHMH draftcd a recommendation that people born in the city should be allowed to change the docuinentcd sex on their birth certificates by providing affidavits from a doctor and a mental health professional laying out why tlicir patients should bc considered members ol the opposite SCX, and asserting that their proposed change would be permanent) (www.1iytir1ies.coin/2006/11/07/nyreginn/07gender.html?scp, Cave, New Daniien York Plans to Make Gender Personal Choice, New York Times, Nov. 7,2006). Based on ihe committee s recommendations, the Board or Health, in about October 2006, 11 [* 13] proposcd an aniciidment to the Health Code that would have rcpcaled section 207.05 (a) ( 5 ) , and added a new section perniittiiig the scx designated on a birth certificate to be changed based on affidavits froiii a doctor and a mental hcalth profcssional, but without requiring proof of convertive surgery. Thc new provision would have required afijdavits from medical doctors arid mental health proikssionals that an applicant had conipleted the lrmsition from oiie gender to ariothcr and intended to permancntly remain in such acquired gender. (Id.; see ulso www.iiytimcs.coni/2006/nyrcgion/06gcnder.litnil?scp, Damien Cave, Cily D r o p I lnn tu Change Definition qfGcn&r, New York Times, Dee. 6, 2006). The Board of Health ultimately withdrew the proposed regulation on Deccrnber 5, 2006, in part bccause, as stated in a press release, the proposal would have broader societal rainiiications than anticipated ... for inany societal institutions that need to segregate peoplc by sex, and in part because of coiicerns about forthcoining federal regulations regarding identification docuniciits (see littp://www,srlp.org/bo~d-health-press-rele,zse-birth-certi~~catepolicy-dec-2006, Sylvia Rivera Law Project press release: Board of Health Makes NYC Consistent with New York State and Most of the TJnitcd Stales by Allowing Sex-Specific Traiisgendcr Birth Certificatcj. Howcver, the Board of Health announced that, while il would contiiiue to require proof that the applicant has undergone convertive surgcry, it was changing its policy of omitting the sex designation 011 the Certiiicate of Birth and would now allow traiisgerider individuals to acquirc iiew birth cerlificatcs reflecting their acquired sex, bringing the policy in line with the practice of New York State and most ofthe United States (id. j, Here, petitioner includes a copy oi. the DHMH instruction form, downloaded from the Department s website, listing the kinds of proof required by the Oepartment in order to correct a 12 [* 14] birth certiilcatc (Ver. Pet. ex. E). The foriii contains no information spccific to transgender men and women, although it does note lhat the applicant iiiust havc obtained an order from Ncw York City Civil Court changing the name, and it indicates that a Supremc Court Order is usually rcquired unless thc hospital of birth made the error (Ver. Pet. cx. E, Correcting a Birth Certificate, p. 2, List orDocuinents Accepted by thc New York City Health Department ). Accordingly, petitioncr completed the standard form and provided documelitation to show that his name has Icgally been changed and that he has undergone gender reassigimicnt surgery and, according to his surgcon, is now a fully functioning male. Hc contends that the letter of his surgeon, along with the order allowing him to change his name, are sufficient under the Health Code rule and that respondent s additional requirements arc arbitrary and capricious and beyond the scope of what the I-kalth Code rcquires an applicant to provide as proof that hc or she has undergonc convertive surgery. Respondent argues that it is rational and reasonable to require individuals seeking new birth certificates reflecting a biological sex other than the one they were born with, to subinit documentary proof of permanent transition, in particular because a birth certificate is a vital document rclied upon by individuals to obtain, among other things, marriage certificates, drivers licenses, passports, social security cards, and government benefits (Res. Menio of Law pp. 13-14). Respondent points out that it is important to guard against fraud in important public records which is why, it argues, it has the authority under 24 RCNY 207.05, to make its own independent detcimination of the proof of an applicant s claim, and which is why it can require applicants to submit medical records rcgarding the coiivertive surgery, including thc surgical a opcrative records and a post-operative psychiatric cvaluation (Res. Memo of Law ppp. 14-15). 13 [* 15] I Iaving these documents, respondent argues, wi I1 permit it to adequately protect the integrity and accuracy of Certificatcs olBirth (Memo of Law p. 15, citing Schwartzpra. 8). There is no question, and petitioner does not arguc otherwise, that under the currcnt Health Code provision, a transgcnder person is required to submit medical proof that convcrtive surgcry has been performed, in order to cffectuate a corrected birth certificate. Whcre respondent s argument loses force in this proceeding is in what it declares it requircs. As noted above, respondent s July 6, 20 10 mcmoranduni/lctter requesting further documentation, including among other items a pre-operative psychiatric report and a category of documents called convertive surgery, apparcntly different from the preceding catcgory of a detailed surgical opcrative record, was thought insufficiently clear by respondent s counsel, and redrafted. Steven Schwartz, the New York City Registrar of Vital Statistics of the Department of Health and Mental Hygiene, statcs in his sworn affidavit of Junc 3, 201 1, appended to the Veriiied Answer, that respondent has continuously requircd applic<mtsto provide: a detailed surgical operative report, including the date of surgery and signature of the physician ; a signed post-operative examination report attesting to the fact that the surgical change of sex was coinpletcd ; and a post-operative psychiatric evaluation attesting that the individual is living and working in their new sex role (Ver. Ans. Schwartz Aff. 7 6).9 Interestingly, Schwartz states that thc requirerncnt, in place since 2001, that an applicant submit a pre-operative psychiatric . . The characterization by Schwnilz of what the Dcpartrnerit seeks to learn, when contrasted with even the November I , 2010 dircctive to petitioner, highlights an apparent lack of clarity within the Departnienl. Coinpare the requirements as described in the Schwartz affidavit, with the Novembcr 1, 201 0 communication requiring B Detailed Surgical Operative Record including dntc ofsurgery, thc reconstruction procedure, if applicable, and a post-operative psychiatric rcport signed by a psychiatrist or psychologist (see Ver, Pet. ex. D). 14 [* 16] cvaluation, is no longer required (Ver. Ans. Schwai-tz AN. 1 7 n. 5 ) . Yet, respondent indicatcd 1 in July 2010 that petitioner was required to provide a pre-operative psychiatric rcport. Evcii more revealing is that at oral argument held on October 5,201 1, respondent s attorney conceded that in fact the real issuc in petitioner s application was the perccived lack or proof of convertive surgery (Tr. pp. 9-1 0, 38). The psychiatric reports apparently arc not really at issue, which of course begs the qucstion of why the Dcpartrnent demanded thcm. As far as what petitioncr provided conccrning proof of convertive surgcry, respondent describes Dr. Meltzer s signed and notarized letter of March 1,2010, as a conclusoq statement of an unknown physician (Res. Memo of Law at 15-1 6). This is strained, given that the letter includes the doctor s contact information and his licensc numbcr. Similarly, rcspondent contends that thc contents ol Dr. Mcltzer s letter do not perniit the Department to determine whcther the applicant has undergone convertive surgcry, even though Dr. Meltzer s letter, which is notarized, states that he performed Feinalc to Male Gender Reassignment Surgery, and the patient is now a fidly functioning male. Thc plain meaning of the words would seem to indicate that petitioner, formerly a fcmale, underwent surgery and is now fully functioning in lifc as a male. As stated previously, the requirement under the Health Code Rule is that the applicant provide proof of a court-ordered name change and proof satisfactory to the Department that the individual has undergone coiivertive surgery (24 RCNY (j 207.05 [a] [SI). What was finally revealed at oral argument by respondent s counsel is that respondent believes it needs to know in particular the name of the spccific surgery performed by Dr. Meltzer on petitioner in order to bc satisfied that petitioncr underwent convertive surgery (Tr. pp. 22, 38). That calls into question 15 [* 17] the requirement for the other documents, in particular the psychiatric records. It is unclear how the psychiatric records would help respondent detenninc whether a person has undergone convcrtivc surgcry. I hisis pcrhaps addrcsscd by respondent s Steven Schwartz who states that in order to assure the accuracy of Certificates of Birth, the DHMH must be convinced through the docunicntary cvidencc that the applicant has permanently transitioned to his or her newly acquired sex (Ver. Ans. Schwarlz All. 7 6). While anything is possible, of course, it does not secm vcry likely that an individual would go through all the years of required preparation lor surgical transition, including psychotherapy, undergo major surgery, assume life under his or her new gender, and then decide it was all a mistake and change back. This apparent assumption teiids to suggest a certain ignorance by the Dcpartrnent of the lengthy transition process and the lives and experience of transgender people, also revealcd in its legal papers which consistcntly refer to petitioner using female pronouns despite petitioner asserting himself as a transgendcr male. It is furthcr revealcd in respondent s apparent conclusion that because at this point petitioner s birth certificate indicates h a t petitioner is a fcmale, it is accuratc to continuc to refer to him as a female. As noted by petitioner s attorney, without a corrected birth certificate, a transgender person faces inany potential difficulties in being treated appropriately, as well as in obtaining employment and in many other areas oflifc ( l r.p. 11). Based on the rccord bcfore the court, petitioner has certainly revealed what looks like a capriciousness in respondent s manner in carrying out its goverrmental function when addressing petitioncr s application, but he does not establish that respondent s concerns as to thc importance of birth records and its adherence to the current law, are cntirely lacking in a rational underpinning that rcsts on the Health Code Rule. This is not the forum for addressing issues of 16 [* 18] sex versus gender and the interplay of the Ilurnaii Rights Law protections with other statutory and coinnioii law provisions that iinpact transgender individuals, and this court declines to address the qucstioiis raised in the altcrnative as to wlicther the Health Code provision requiring proof of convertivc surgery violates the Human Rights Law protections of individuals based 011 gender, or whether tllere may be a violation of equal protection in the manner transgender people are trcated when scclting to correct their birth ccrtilicates to coincide wilh their genders, when compared with people seeking to correct a ministerial error or to add a second parent s naine to the birth certiiicate. As conccrns petitioner s application however, respondent did not provide petitioner with a clear straightforward list of what it requires from an applicant seeking to corrcct a Certificate of Birth, and the list as provided includes requests for documentary information admitted by respondent s counsel not to be necessary. Respondent also oiTercd no rational reason why a notarized letter limn a physician on letterhead stationery and including the physician s liceiise number, and which states that the physician himself successfully performed and completed Female to Male Gender Reassignment Surgery on petitioner on May 12, 2009, at a specific named surgical center in Scottsdale, Arizona, and that petitioner is now a fully functioning male is insufficient to establish that petitioner has undergone convertive surgery. Accordingly, tlic respondent should reconsider petitioner s application without regard to the psychiatric records and should provide a written explanation, ir any, as to why the notarized stateiiient of Dr. Meltzer that hc completed coiivertivc surgcry is insufficient. Accordingly, it is ORDERED and ADJUDGED that the petition is granted to the extent that the inatter is 17 [* 19] remanded for further reconsideration o l petitioner's application in accordallce with this decision; and it is OKI)f.',KEDthat h e pctition is otherwise dcnied and dismissed. The loregoing sliall constilute the decision, order and judgment of this c o ~ r t . ENTER -- Dated: March 16, 2012 New York, New York UNFILED JUDGMENT This judgment has not been entered by the County Clerk and notice or entry cannot b e served based hereon. To obtain entry, counsel or author-ked representative must appear in person at the Judgment Clerk's Desk (Room I 16). 4 18

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.