PENNSYLVANIA Frequently Asked Questions
updated June 13, 1999
Does Pennsylvania recognize a legal change of sex?
Can I change my name before I legally change my sex?
How do I change my name in Pennsylvania?
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?
Does Pennsylvania recognize a legal change of sex?
Yes.
The Commonwealth of Pennsylvania recognizes 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. 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. 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?
Yes.
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 her new sex. This ruling resolved a conflict in the county courts, some of which held that a 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 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. She must meet the other requirements of the name change statute.
How do I change my name in Pennsylvania?
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 remaining handful of states that recognize when an individual has been known exclusively by a particular name, 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 resistance a person will inevitably encounter when dealing with agencies and bureaucats.
To change one's name by court order, a complaint/petition needs to be 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 of changing one's name by court order should only take two to three months.
Can I change the sex designation on my driver's license before I legally change my sex?
Maybe.
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. Futhermore, not every governmental agency has addressed the issues of transgendered people. As a result, many procedures get established at an informal level. Such is the case with the Pennsylvania Department of Transportation. While PennDOT has an established policy for changing the name on a person's driver's license (even if the change is done by common usage), there is no established regulation or procedure for changing sex.
At one time, department counsel claimed 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 her driver's license. This however, seems not to be the case in practice. As a practical matter, the post-operative transsexual who can present any one of these documents can obtain a change of sex designation on her license.
For the pre-operative transsexual, however, PennDOT's policy regarding sex designation can best be dscribed as "capricious." Often, a letter from one's therapist or doctor attesting to the fact that she is living as a member of the opposite sex is sufficient to have the sex designation changed. Other times, the intervention of a congressional representative of an attorney has been helpful. At this time it is impossible to predict who will have difficulty changing the sex designation on her driver's license and who will not.
Can I change my Pennsylvania birth certificate after sex change surgery?
Yes.
Changing a birth certificate after sex change surgery depends on the laws of the state in which the person was born. Persons born in 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 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 used to change one's name. However, if the name change was accomplished using common usage, a separate court order will need to be obtained.
What will happen to my existing marriage?
What happens to an existing marriage when one of the spouses changes sex depends to a great deal on what happened before and during the marriage.
Transsexuality and transvestism are grounds for divorce in Pennsylvania, partuclarly if the offended spouse was never made aware of the other party's transgenderism before the marriage. Support may 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 remains valid. After surgery, though, lies untested waters. There is no existing case law in 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 law regrding custody of transgender parents is virtually non-existent. Different county courts have ruled differently when granting of 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, decisions regarding custody and visitation rights are based on a "best interst of the child" standard. Rarely is any single parental issue determinative of custody and visitation rights; thus, one's trangender status is but one element in the total set of circumstances the court must consider. In most instances, the courts have entered their awards judiciaously.
While the issues of transgenderism and parenthood have not been addressed directly by the Pennsylvania appellate courts, homesexuality and parenthood have been examined, and a analogy can be nade. The courts are permitted to consider a parent's homosexuality when awarding custody or visitation, but only as it may directly affect the child. Other situations related to homosexuality in general, i.e., the community's negative feelings toward a parent's homosexuality, may not be considered when awarding custody. One would presume this relatively liberal 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.
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 corrollary to this recognition, then, is that post-operative transsexuals are permitted to marry individuals of the opposite sex.
It is still important to notify a prospective spouse before marriage of one's transsexual status, however. Although the issue has never been raised in the Pennsylvania 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 Pennsylvania 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 overt reasons other than transgenderism. Various reasons might be poor performance, workplace 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 workplace. 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, she should immediately request a complete copy of her personnel file.
Transgenderism is not currently a protected status under any state anti-discrimination statute. Only Pittsburgh and York contain transgender-specific wording in their local anti-disrimination ordinances, and the Philadelphia Commission on Human Relations currently interprets the Philadelphia ordinance prohibiting discrimination on the basis of sexual orientation to incorporate transgender discrimination.
The Pennsylvania Human relations Act does not cover discrimination on the basis of transgender status as either sex discrimination or handicap discrimination.
Title VII does not protect transgendered people as a discrete class. However, 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. For more information on Title VII and transgender jurisprudence generally, see the employment law article posted elsewhere on this site.
Executive Order 1978-1 (first adopted by Governor Shapp in 1975 and subsequently re-adopted by the current administration) prohibits discrimination on the basis of sexual orientation by government agencies or contractors. The earlier incarnation of this Order indicates that all sexual minorities, including transgendered people, were contemplated in the scope of coverage. The Order, however, does not create a private cause of action. Although as yet untested, it could provide the basis for a suit alleging wrongful discharge as against public policy.
A transgendered person who has been fired because of her transgenderism may be eligible for unemployment compensation benefits if she can show that her transition is being managed by medical professionals.