Kristine W, Holt

AREAS OF PRACTICE

Bankruptcy and
Debt Relief

Divorce, Custody
and Support

Domestic Partnerships and Separations

Wills, Powers of Attorney, Living Wills, Trusts

Probate and Other Estate Matters

Name Change

Municipal and Small Claims Court

Real Estate Conveyances and Partition of Property

Small Business and Incorporation

Administrative and Appellate Proceedings

General Defense and Consultations

WE ACCEPT ALL MAJOR CREDIT CARDS FOR MOST SERVICES

TRANSGENDER LAW

Updated July 8, 2011

The information contained in this page is for general purposes only. Each situation, including your own, is unique, and the law may apply differently to you.

FOR A FREE CONSULTATION BY PHONE OR EMAIL,
CALL 215-545-7789 OR CLICK HERE TODAY.


  • Do Pennsylvania and New Jersey recognize a legal change of sex?
  • Can I change my name before I legally change my sex?
  • How do I change my name?
  • Can I change the sex designation on my driver's license before I legally change my sex?
  • Can I change my birth certificate after sex change surgery?
  • What will happen to my existing marriage?
  • Will I lose custody or visitation rights with my children?
  • Will I be able to get married after sex change surgery?
  • Do I have any legal rights if I lose my job?

Do Pennsylvania and New Jersey recognize a legal change of sex?
Both the Commonwealth of Pennsylvania and the State of New Jersey recognize legal change of status from one sex to the other when an individual undergoes surgery to change the genitalia from that of one sex to that of another. Administrative procedures are in place to amend birth certificates (for individuals born in PA or NJ), and both states issue new birth certificates with no reference to the prior status. The administrative requires the submission of a surgeon's affidavit attesting to the fact that sex reassignment surgery was "successfully" performed. The most useful example of this policy is with legal identification. Marriage, too, is another area where recognition of one's new sex is useful. As the law stands now, a person who has changed her sex has the same legal status regarding her sex as does a person who was born into that sex.

Can I change my name before I legally change my sex?
The Pennsylvania Supreme Court ruled in 1998 that a pre-operative transsexual living as a member of her target gender has a right -- indeed, a need -- to adopt a name consistent with her new sex. This ruling resolved a conflict in the county courts, some of which held that letting a male adopt a female name would perpetuate a fraud on the public. An earlier ruling in a different case in December 1997 by the Superior Court (an intermediate appellate court) initially pointed the way, ruling that a transsexual person who has demonstrated a commitment to becoming a member of the opposite sex may change her name. However, the current Supreme Court ruling holds that the transsexual person need only demonstrate that she has no intent to defraud creditors. Otherwise, she need only meet the other requirements of the name change statute.

The New Jersey Supreme Court reached a similar decision in 1991.

How do I change my name?
Changing you name is a simple procedure in Pennsylvania and can be accomplished in one of two ways: by court order or by common usage. Pennsylvania is one of the few remaining states that legally recognize a particular name an individual is commonly known by, even if that name is not the one given to her at birth. Although this method of changing one's name is legal, it is not recommended because of the resistance a person will inevitably encounter when dealing with agencies and bureaucrats.

To change one's name by court order, a complaint/petition is filed in the county where you currently reside. A hearing is scheduled and notice of the hearing is published in one legal paper and one local paper of general circulation. A judgment search is conducted in every county you have lived in within the past five years (including out-of-state counties) and a police fingerprinting and background check is done. Persons who have been convicted of certain specified felonies are not permitted to change their names. Additionally, persons convicted of other specified crimes may not change their names until their release from imprisonment or probation.

The process in New Jersey is simpler yet. A complaint is filed in the Superior Court in the county where one lives, and a hearing date is set. Notice of the complaint and the hearing date is sent to the state and county prosecutors and one publication is made in a local newspaper. The proofs are returned to the court before the hearing date. In many cases, attendance at the hearing is not required. Once the final order is issued, another publication is made in a local newspaper, and the order is filed with the New Jersey Treasurer.

The process of changing one's name by court order may only take two to three months.


Can I change the sex designation on my driver's license before I legally change my sex?
One of the difficulties associated with changing one's legal sex is that many state legislatures have failed to provide guidance to state agencies and bureaucracies. Furthermore, not every governmental agency has addressed the issues of transgendered people. As a result, many procedures get established at an informal level. However, in August 2010, the Pennsylvania Department of Transportation amended its procedures to permit a license holder to change the sex designation of their license if they can document through medical or psychotherapeutic records that they are living "full time" in the target gender. This new policy stands in contrast to the old policy, which officially required that a person must submit a surgeon's affidavit, a modified birth certificate and a court order in order to change the sex designation on his or her driver's license. As a practical matter, though, the post-operative transsexual who could present a surgeon's affidavit could obtain a change of sex designation on his or her license. The new policy affords the same possibility for the pre-operative or non-operative transsexual.

The situation in New Jersey is similar. In April, 2009, the New Jersey Motor vehicle Commission announced its new policy that indivuduals underoing the process of gender transition who wish their license to "reflect his or her gender identity prior to surgery must formally submit a “Declaration of Change of Sex Designation” application, attesting to the gender that he or she considers themself to be." The new policy has been found not to affect the security precautions addressed by new Jersey's "6 point" system for renewing licenses under the new digital license program.

Even if you have a current state license with the correct sex designation (pre- or post-op), you would do well address other documents such as a birth certificate or a passport, which have their own procedures for changing. These requirements can be difficult enough for non-transgendered people, but doubly so for transgendered people.

Can I change my birth certificate after sex change surgery?
Changing a birth certificate after sex change surgery depends on the laws of the state in which the person was born. Persons born in either New Jersey or Pennsylvania may have a new birth certificate issued after their surgery.

To change the sex designation on one's birth certificate, the Pennsylvania Department of Health, Division of Vital Records merely requires a certified statement from the physician who performed the surgery stating that the reassignment was successfully completed and that the person is now fully functioning within the new sex.

To change the name on one's birth certificate, the agency requires a certified court order directing the agency to do so. This may be a certified copy of the court order initially used to change the name. However, if the name change was accomplished using common usage, a separate court order will need to be obtained.

The procedure in New Jersey is similar. A copy of the surgeon's affidavit and a certified copy of the court order granting the name change is sent to the registrar of vital records, New Jersey Department of Heath and Senior Service, Bureau of Vital Statistics.

What will happen to my existing marriage?
What happens to an existing marriage when one of the spouses changes sex depends to a great extent on what happened before and during the marriage.

Transsexuality and transvestism may be grounds for divorce in Pennsylvania, particularly if the offended spouse was never made aware of the other party's transgenderism before marriage. Support may also be awarded in favor of the offended spouse even if that spouse abandons the marital home because of the transgenderism.

Should the spouses decide to remain together, however, their marital status is even more uncertain. Pennsylvania does not recognize same-sex marriages and has declared such marriages void. As long as the transgendered spouse remains pre-operative, the marriage facially remains valid. A marriage after surgery, though, lies in untested waters. There is no existing case law in New Jersey or Pennsylvania dealing with the status of a post-operative transgender same-sex marriage. Presently, as a practical matter, such marriages are treated as being valid. This situation is subject to change at any time.

For more information about transgender marriages in generally, see the marriage article posted separately on this web site.

Will I lose custody or visitation rights with my children?
Not necessarily. As in the law affecting marriage, the case law regarding child custody rights of transgender parents is virtually non-existent. Different county courts have ruled differently when granting custody or visitation rights to transgendered parents, ranging from full custody to complete denial of visitation. The question has yet to be definitively decided by the appellate courts.

In Pennsylvania and New Jersey, decisions regarding custody and visitation rights are based on the "best interests of the child" standard. Rarely is any single parental issue determinative of custody and visitation rights; thus, one's transgender status is but one element in the total set of circumstances the court must consider. In most instances, the courts have entered their awards equitably.

While the issues of transgenderism and parenthood have not been addressed directly by the Pennsylvania appellate courts, homosexuality and parenthood have, and an analogy between the two situations might be draw. Until recently, the courts are permitted to consider a parent's homosexuality when awarding custody or visitation, under the guise that there was a presumption that the parent's homosexuality would have a negative effect on the child. However, that negative presumption was struck down by the state's Superior Court (intermediate appellate court) in January 2010, which held that "[s]uch preconceptions and prejudices have no proper place in child custody cases, where the decision should be based exclusively upon a determination of the best interests of the child." WHile not directly related to transgender issues, one might hope that this relatively judicious application of law would be applicable to other sexual minorities as well.

As with the law on transgender marriage, the current situation is subject to change at any time.

Will I be able to get married after sex change surgery?
Yes, as long as a same-sex marriage is not contemplated (at least in Pennsylvania).

As previously noted, Pennsylvania recognizes that people can legally change their sex and allows them to change their birth certificates and other identifying documentation to reflect this change. A necessary extension to this recognition, then, is that post-operative transsexuals are permitted to marry individuals of the opposite sex.

New Jersey has recognized the validity of a marriage between a post-op woman and a man. The case arose when the couple divorced and the wife sought alimony. The husband sought to declare the marriage void as a means of avoiding an alimony award. The court held that, because the woman had undergone surgery to transform her into a female and the husband was aware of that fact before marrying her, the marriage was valid. In addition, New Jersey recongized civil unions between same-sex couples, so presumable, some form of marriage-analogue is available to everyone in New Jersey.

It is still important to notify a prospective spouse before marriage of one's transsexual status, however. Although the issue of non-disclosure has never been raised in the Pennsylvania or New Jersey appellate courts, other jurisdictions are fairly unanimous in their declaration that failing to inform is akin to fraud and constitutes grounds for annulment. It is difficult to imagine that the courts in either state would take a different view of the matter.

Do I have any legal rights if I lose my job?
Some -- but not many.

More often than not, an employer discharges a transgendered employee for expressed reasons other than transgender status. Various "reasons" might include poor performance, work place disruption or dress code violations. It is important when contemplating transition from one sex to the other to keep a meticulous log of events happening in the work place. It is also essential that one demand policies and directives in writing and that all correspondence be kept. Should a transgendered employee find herself suddenly fired, s/he should immediately request a complete copy of her/his personnel file.

Transgender status is currently not a protected status under Pennsylvania state anti-discrimination statutes. However, in New Jersey, the Appellate courts have ruled that the New Jersey Law Against Discrimination protects transgendered people under the prohibition against sex discrimination, and the state legislature subsequently codified this protection into the Law Against Discrimination by specifically including gender identity. In Pennsylvania, protections have been granted by several municipal and county ordinances, among them Pittsburgh, Erie County, Philadelphia, Allentown and York.

The question of whether Title VII offers protection to transgendered people is in a state of flux. In January 1999, an Erie district federal court held that a dress code used to discriminate against a male-to-female transsexual constituted sex discrimination under Title VII. In February 2006, the District Court for the Western District of Pennsylvania held that a male-to-female transsexual could bring a claim of sex discrimination against an employer who discriminates on the basis of sexual stereotypes, following Price Waterhouse v. Hopkins. It should be noted that many EEOC offices now accept for filing complaints based on sex discrimination brought by transgendered people who are sexually stereotyped. For more information on Title VII and transgender jurisprudence generally, see the employment law article posted elsewhere on this site.

A transgendered person who has been fired because of her/his transgender status may be eligible for unemployment compensation benefits if s/he can show that her/his transition is being managed by medical professionals.


The legal discussions presented on this website are for informational purposes only,
and are not intended to be used as legal advice for your particular situation.


All original content © 2012 Kristine W. Holt