Women Respond to Washington State’s Proposal to Allow Easy Changes to Sex on Birth Certificates

You can find the full footnotes in this PDF version: Comment on WAC 246-490-075 birth certificates_final_9-28-17


Sept. 28, 2017
Via email to: GenderChangeRuleMaking@doh.wa.gov
John Wiesman, DrPH, MPH
Secretary of Health
Washington State Department of Health
PO Box 47814
Olympia, Washington 98504-7814

Re: Comments on Preproposal Statement of Inquiry to amend Chapter
246-490 WAC, Vital Statistics (Aug. 22, 2017)

Dear Dr. Wiesman:

We are a diverse group of people including liberals, conservatives, mothers, fathers,
feminists, women of faith, lesbian and bisexual women’s rights activists, midwives,
veterans, and concerned neighbors. In addition to the individual signatories below,
Women’s Liberation Front, Hands Across the Aisle Coalition, Safe Spaces for Women, and
the Just Want Privacy Campaign submit these comments on behalf of all their members,
including members who reside in Washington.

The Department is proposing to allow people born in Washington to change their
vital birth information for any reason or no reason at all, a move that would render the
state’s vital statistics inaccurate and unreliable, and raise a raft of complicated questions
the Department does not appear to have considered. We urge you to scrap this proposed
rulemaking as it is unnecessary, outside of the Department’s statutory authority, and
harmful to women and girls.

1. The Proposed Rule Change is Outside of the Department’s Statutory

The draft rule has two main features. For adults, it would allow any person for any
reason to request and obtain a change to their birth certificate’s sex designation simply by requesting the change based on “self-attestation,” submitted on the proper form, signed and notarized. For children, it would allow any adult for any reason to request and obtain a change to their minor child’s birth certificate sex designation by submitting a “a signed statement by the minor’s licensed health care provider attesting that… [t]he provider has determined the request to change sex designation on the birth certificate is consistent with the minor’s identity.” Given that an individual’s “identity” is internally-felt and subjective, and therefore not a medically-verifiable fact, these minimalistic prerequisites are essentially meaningless.

The preproposal statement of inquiry cites RCW 43.70.150 as the statutory basis for
the draft rule, but nothing in the statement explains how the proposed rule is consistent
with or authorized by that statute. Instead the Department offers a single-sentence
justification: “Because some people identify as neither male nor female, this rule making
will consider changing sex designation to include male, female, and non-binary options
when requesting a change to the sex designation on one’s birth certification.” In comparing the proposed rule to RCW 43.70.150, it becomes clear that the proposed rule directly contradicts the Department’s longstanding statutory mandate to record and maintain accurate vital birth statistics:

Registration of vital statistics. The secretary of health shall have charge of
the state system of registration of births, deaths, fetal deaths, marriages, and
decrees of divorce, annulment and separate maintenance, and shall prepare
the necessary rules, forms, and blanks for obtaining records, and insure the
faithful registration thereof
. (emphasis added)

As discussed further below, a person’s sex is innate and immutable, and it is one of the
most important vital statistics about them. In contrast, a person’s subjective “identity” is
not mentioned in RCW 43.70.150, nor is it a “vital statistic,” and therefore it has no
relevance to the Department’s statutory mandate to “insure faithful registration thereof.”
Indeed, the process of recording of vital birth information would be made meaningless if
individuals were allowed to replace their sex at birth with a subjective identity that differs from their sex. The Department therefore lacks the authority to adopt the draft rule under RCW 43.70.150, and in fact the draft rule would directly violate the Department’s duty under that provision.

2. The Proposed Rule Change Conflates Sex, “Gender,” and “Identity.”

Sex is a vital statistic; “gender” and “identity” are not. Washington has many
legitimate interests in recording and maintaining accurate information about its residents’ sex, for purposes of identification, tracking crimes, determining eligibility for sex-specific programs or benefits, determining admission to sex-specific spaces, and determining the appropriate emergency medical and police services, for just a few examples. In contrast, there is no legitimate governmental interest in recording a person’s subjective “identity” or giving that identity legal significance in lieu of sex.

Sex and “gender” are distinct concepts. Sex refers to the two reproductive classes
found in the human species: a woman is an adult human female, i.e., an individual with XX chromosomes and predominantly female anatomy; a man is an adult human male i.e., an individual with XY chromosomes and predominantly male anatomy. As sex is recorded at birth by qualified medical professionals, and it is an exceedingly accurate categorization: an infant’s sex is easily identifiable based on external genitalia and other factors in 99.982% (all but .018%) of all cases; the miniscule fraction of individuals who have “intersex” characteristics, now called disorders of sex development, remain either male or female, or are difficult to characterize but do not constitute a third reproductive class.

In stark contrast to sex, “gender” and “gender identity” refer to nothing more than
the degree to which one embraces or rejects stereotypical roles, personality or behavioral traits, and clothing fashions that are socially imposed on men and women—superficial stereotypes that are in constant flux according to changing social forces and trends. These sorts of things have nothing to do with the biological state of one’s sex. While some individuals may claim to feel or possess an “identity” that differs from their sex, such feelings have no bearing whatsoever on the person’s vital birth characteristics.

The text of the draft rule conflates sex and “gender” and has additional problems
due to the absence of clear objective definitions for key terms. The title of the proposed
revision is “Changing sex designation on a birth certificate,” but the “sex designations”
made available under the draft rule include “male, female, or nonbinary.” To be sure, male and female are universally-accepted names for the two sexual reproductive classes of human being—yet the implicit premise of the draft rule is that male and female mean
something quite different, something like “gender identity,” which is not innate, not
externally verifiable, can be based solely on internal subjective feelings, and can change
over time.

The definition of “non-binary” further illustrates this conflation: it begins by saying
that “non-binary” means “a gender that is not exclusively male or female, including, but not limited to, intersex….” But male and female are sex designations, not gender designations. “Intersex” is an outdated term for disorders of sex development, but “intersex” is not itself a sexual reproductive class comparable to male and female. The proposed definition of “nonbinary” goes on to give examples that range from vague to preposterous, including the terms “agender, amalgagender, androgynous, bigender, demigender, female-to-male, genderfluid, genderqueer, male-to-female, neutrois, pangender, third sex, transgender, and Two Spirit.” Some of these terms, like “Two Spirit,” are taken out of historic and cultural context. Some, like “amalgagender” and “neutrois” seem to have been invented by teens and young adults posting on social media.

In short, the text of the proposed rule is hopelessly convoluted and therefore directly
at odds with the Department’s statutory mandate to “insure faithful registration” of vital
birth statistics about sex.

3.  Accurate recording of sex matters, particularly to women and girls.

We are particularly concerned that the draft rule will result in a situation where any
man can claim access to women’s single-sex spaces, programs, and facilities. We are also
especially concerned that the draft rule would skew or even make unusable crime statistics that are crucial in the fight to stop violence against women and girls, or would help individual violent men to evade law enforcement efforts at apprehending them. These concerns are well-supported by the facts. As demonstrated consistently by the FBI’s Uniform Crime Reporting system and similar state programs, women face a dramatically disproportionate statistical risk of violence, rape, assault, or voyeurism, and in the vast majority of cases women suffer these harms at the hands of men. For crimes reported by law enforcement to the FBI in 2015, men committed over 88% of all murders, 97% of rapes, 77% of aggravated assaults, and 92% of sex offenses other than rape or prostitution.

Further, available evidence indicates that males’ disproportionate engagement in
violent criminal behavior does not change significantly based on their subjective gender
feelings: one long-term study of post-operative transsexuals confirmed that males continued to engage in a significantly higher rate of violent crime compared to females, but not compared to males, particularly in the absence of focused and intensive investment in specialized counseling and social services—which are not mandated as a condition for changing one’s sex designation under the draft rule.

Unscrupulous violent offenders would have every incentive to use the Department’s
proposed mechanism to obscure their identity. Even setting that risk to the side, there is
still the likelihood that allowing the sex designations on birth certificates to become a free-for-all would skew basic crime statistics traditionally recorded and analyzed according to sex. At least one organization for transgender-identified individuals in Washington state adopts the estimate that the state is “home to approximately 10,500 transgender youth aged 13-19 and 15,900 adults aged 20 and older.” Further, there is no telling how many requests for sex designation change may be filed if the draft rule is adopted, and nothing in the rule limits an individual to one change per lifetime. The concept of the rule is fatally flawed and it should be abandoned before more precious public resources are wasted.

There are far too many questions the Department does not appear to have asked,
much less considered thoroughly, before proposing this rule. For example, what sorts of
rights will be affected by a birth certificate sex change? Will violent male convicts be
allowed to change their sex designation and thereby gain the right to demand a place in a women’s prison? What sort of “treatment” is required before parents are allowed to make a life-altering decision to change the legal sex of their children? What effect will this change have on the state’s ability to accurately record parentage, and how will this affect the children of parents who change their sex designation after the children’s birth certificates were issued, creating a discrepancy in the state’s records? Adopting the draft rule without thorough consideration of these questions would be irresponsible and arbitrary.

4. The Department Should Direct its Efforts Toward Studying the Sudden
Uptick in Interest in “Gender Identity”

While recording subjective identity is not within the Department’s remit, studying
and bringing to light serious public health threats is a core duty. Given the Department’s
interest in exploring public policy issues with “gender identity,” we encourage you to direct your resources toward studying the medical and social causes and risks associated with the recent explosion in “gender identity” among young people, particularly women and girls:

All of these are worthy subjects of the Department’s time and research resources. Rather than rushing to embrace what largely amounts to a poorly-understood social trend, and we urge you to redirect your attention toward better understanding the causes and risks of “gender identity” claims, gender dysphoria, and associated clinical and social responses.


/s/ Natasha Chart
Acting Board Chair
Women’s Liberation Front

Jennifer Chavez
Board Secretary
Women’s Liberation Front

Miriam Ben-Shalom
Hands Across the Aisle Coalition

Kaeley Triller Haver
Just Want Privacy Campaign

Meg Kilgannon
Concerned Parents and Educators

Autumn Starre Bennett
Safe Spaces For Women

Emily Zinos
Project Coordinator
Ask Me First MN

Cassandra Nelson
Puyallup, Washington

Theresa Ann Pfeiffer
University Place, Washington

Kay Scott
Puyallup, Washington

Julia Dawn Seaver
Vancouver, Washington

Karen T. Danis
Bremerton, WA

Thomas Hunter
Brush Prairie, WA

Karen Cox
Puyallup, WA

William A. Sebastian
Bremerton, WA

Chris Valneta
Poulsbo, WA

Rev. Vajra Ma
Wolf Creek, Oregon

Lokeni Lokeni
Tacoma, WA

Jasmine Lokeni
Tacoma, WA

Colette M. Manker
Olympia, WA

Leanna Beyer
Federal Way, WA

Patricia A. Trent
Centralia, WA

Roberta Y. Lieske
Chehalis, WA

Catherine A. Phillips
Gig Harbor, WA

Richard W. Phillips
Gig Harbor, WA

Richard L. Phillips
Tacoma, WA

Piper McEwen
Camas, WA

Martin McClendon
Gig Harbor ,WA

Dana Cruz
Indianola, WA

Petrea Knowles
Snohomish, WA

Mary Ward
Vancouver, WA

Amber Krabach
Woodinville, WA

Daniel A. Orr
Tacoma, WA

Carol Orr
Tacoma, WA

William Howard Spear
Shelton, WA

Shauna Bromell
Yelm, WA

Lisa Wilson
Liberty Lake, WA

K-Y Su
Kirkland, WA

Kristen Harris
Renton, WA

Anne Marie Biggs
Washington State

George Wood
Bremerton, WA

Rebecca Rose
Washington State

Beth Daranciang

Les Evenhus

Wanda Evenhus


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