By: Amy Hoch Hogenson and Samantha Jones*
Your gender marker is the “M” or “F” on your driver’s license, birth certificate, and passport that indicates if you are a male or female. It is something most people give little thought to. But, for those who do not identify with the gender assigned to them at birth, the marker can be a source of struggle.
Missouri statute §193.215 provides that if a person wishes to amend their gender marker on their birth certificate, a court must enter an order indicating that the sex of an individual has been changed by “surgical procedure” and that their name has been changed. Understandably, many people may have reservations about being forced to undergo a surgical procedure: financial cost, potential complications, recovery time, and effectiveness being just a few of those concerns.
The continuing legal issue is: How does the court interpret the definition of surgical procedure? When a person thinks of surgical procedure, often the first image that comes to mind is a cold operating room and a scalpel. However, Dorland’s Medical Dictionary defines “surgery” as, ”the branch of health science that treats diseases, injuries, and deformities by manual or operative methods” and “procedure” as, “a series of steps for doing something.” By this definition, could laser hair removal, hormone replacement therapy, or a minor cosmetic surgery allow an individual to change their gender marker? It’s a question yet to be decided which we must leave to the court but, until a case provides the answer, those who wish to change their gender marker without having sexual reassignment surgery, cannot predict how they will fare in the legal system.
For those who do not identify with either “male” or “female,” the law has not yet addressed their gender marker in any fashion, and there is no acknowledged means of legally addressing the situation without a test case which may be hard fought by the State of Missouri and very expensive for the litigant.
*Amy Hoch Hogenson is an attorney practicing in areas of law which frequently address gender. Samantha Jones is a law student currently working in a clerkship with Paule, Camazine & Blumenthal, , P.C.