Gender Agreement: Cuomo decision emboldens transgender-rights advocates

The news came out without much fanfare—not even a press release from Gov. Andrew Cuomo’s office. But the announcement that transgender people would no longer need to show proof of genital reassignment surgery in order to alter the gender markers on their state birth certificates quickly circulated among the LGBT community. The Empire State Pride Agenda (ESPA) issued a statement praising Cuomo for the decision, calling it “tremendous news for New York.” Days later the American Medical Association called on other states to enact this change as well. 

The transgender community has been advocating for such an act for almost a decade. But while the change will benefit thousands across the state, it does not apply to those born in New York City, which has its own birth certificate policy. Advocates say Gov. Cuomo’s action might be just the push that leaders need to generate support for the measure to be extended to New York City as well. 

In 2006 Dr. Barbara Warren, now Mt. Sinai Hospital’s director of LGBT Health Services, was on the advisory committee formed to make a recommendation on birth certificate requirements to the city’s health department. The committee pushed for the same policy change the state adopted last week, but the Board of Health denied the recommendation, despite it being approved by both the committee and its health commissioner at the time, Dr. Tom Frieden. 

“I just remember we were bitterly disappointed,” Warren said. 

After the Board of Health’s decision, advocates turned their attention to the state, but there was no movement on the issue until Gov. Cuomo was elected in 2010. Jonathan Lang, the director of government projects and community development at ESPA, said his organization had been in talks with Cuomo about the birth certificate adjustment since he took office. 

“It definitely took a lot longer than we thought it would take,” Lang said. 

Transgender Legal Defense and Education Fund Executive Director Michael Silverman, whose organization introduced a lawsuit against the city’s Health and Mental Hygiene Department three years ago in an attempt to compel action through litigation, is optimistic the state’s new policy will lead to a shift on the city level. 

“We’re hopeful that change at the state level highlights how outdated and incorrect the city’s policy is, so that the city takes to changing it without waiting for a court to order that change,” he said. 

Conversations have already begun among Council leadership, the health commissioner and the New York City Department of Health and Mental Hygiene to explore a change at the city level. The spokesperson for the department told City & State that it was considering a change similar to the one made by the state. Officials also said they intend to speak with members of the transgender community soon for input. 

New York City Council Health Committee Chair Corey Johnson said he hopes to enact the alteration by the end of the year. He went on to say the Council is exploring the possibility of going further than the state’s amendment. New York State’s regulation requires a signed confirmation of transitioning from a medical professional for people to change their certificate’s gender marker. Johnson said he’s interested in seeing an approach similar to one recently suggested for the city’s proposed municipal identification cards, where no documentation would be necessary, and people could simply self-identify their gender. 

On the federal level, many transgender people have turned their focus to altering the designation on their social security cards, the key document needed to sign up for the medical insurance policies offered under the new Affordable Care Act. The ACA expanded eligibility for Medicaid and did away with exclusions for pre-existing conditions, but the policy currently features a ban on covering any services related to gender transitioning. Lang said ESPA has urged the Cuomo administration to repeal the exclusion ever since the governor convened his Medicaid Redesign Team in 2011. 

“There definitely hasn’t been a strong ‘yes’ that they’re in favor of the repeal, but there definitely hasn’t been a strong ‘no’ either,” said Lang. 

Other states that banned Medicaid transgender coverage exclusions have simultaneously demanded that all other insurance carriers operating in the state do the same. Lang said that approach would be the best option for New York but believes legislators are concerned that it would increase costs, even though a study cited by a progressive advocate conducted in states where the Medicaid exclusions were repealed found that the associated cost increase was negligible. 

Asked if it is considering repealing the ban, a state Health Department spokesperson responded with a statement: “This administration is committed to advancing equitable policies, and in this spirit, the state continues to actively review existing regulations regarding Medicaid coverage of gender reassignment surgery.” 

In Albany, the LGBT Caucus is focusing its efforts on passing the Gender Expression Non-Discrimination Act (GENDA), which it maintains would improve the political environment for transgender people, paving the way for further action. GENDA has passed the Assembly on seven different occasions. In 2011 Gov. Cuomo said he would sign the bill if it got to his desk, but it has never made it to the Senate floor. 

Assembly sponsor Richard Gottfried said the fact that more and more local governments in the state have passed their own versions of GENDA is indicative of a change in the political climate for LGBT support. He said the bill is long overdue for Senate Republicans to bring to the floor, but multiple Senate sources told City & State it was unlikely GENDA would come up for a vote this legislative session. 

“We don’t have the political capital for GENDA on the state level. There are no Republican sponsors,” said Melissa Sklarz, head of the Stonewall Democratic Club of NYC. 

In all her time advocating for GENDA, Sklarz said that it had been rare that she even had the opportunity to speak directly with a Republican senator. She did meet with Dean Skelos at the end of April to share how the bill would affect the transgender community, but she said the meeting was inconclusive.