A new Maryland law has taken effect that makes it easier for transgender and intersex people to update the gender designation on their birth certificate to be consistent with their identity.
If you are transgender or intersex, and either were born in Maryland or live in Maryland now, the new law most likely can benefit you in some way. The new law will help nearly all transgender and intersex Marylanders, including:
This document provides general answers for some common situations. It is not a substitute for legal advice concerning your specific situation. If you have specific questions about your situation or would like help changing your name and/or gender marker on your birth certificate or any other identification documents, contact FreeState Legal at 410-625-5428 today!
FreeState Legal offers free legal assistance to low-income lesbian, gay, bisexual, transgender, and queer (LGBTQ) individuals across the state of Maryland. For our low-income clients, the court and filing fees are usually waived by the court (meaning the court does not charge you for a name or gender change). FreeState Legal will, on a limited basis, offer free legal advice regarding name and gender marker changes to individuals with income that exceeds our eligibility guidelines; however, in most cases we will not be able to provide those individuals with representation in court, and if we do provide representation the client will be required to pay court and administrative fees.
FreeState can help you, regardless of your income or where you live, to get updated identity documents in Maryland. Contact us for free legal advice today – 410-625-5428!
1. How does the new birth certificate law work?
You can read the complete text of the law on the Maryland General Assembly’s website (link opens in new window/tab).
2. When does the new law take effect?
The new law is in effect now. It passed the General Assembly in the Spring of 2015, and took effect on October 1, 2015.
3. What if I was born in Maryland, still live in Maryland, and have not yet taken any steps to update my name and gender on identity documents?
If you were born in Maryland and need to update both your name and gender on identity documents, you will be able to legally change your name and obtain an order legally recognizing your gender identity in a single case, filed in the circuit court for the county (or Baltimore City) where you live. Since a court order is required in order to change your name, we recommend seeking a court order for both name and gender. Note that the law removes any requirement that you get a court order to change your gender, but we recommend getting both done at the same time for administrative convenience.
Before the case is filed, you will need to obtain a sworn statement from your doctor or other health care practitioner affirming that you have received care for gender transition that is individually appropriate for you. Once you get the court order, you can use it to update the name and gender designation on all forms of identification and government records, including your birth certificate, driver’s license, non-driver’s ID, U.S. passport, and Social Security records. Your new birth certificate will include your new legal name and gender designation, and will not contain any indication of your former name or gender designation.
4. What if I already changed my name (or don’t want to change my name), but want to update the gender designation on my birth certificate?
You might have already changed your name or have no need to change your name, but haven’t updated the gender designation on your birth certificate. If so, you will be able to update the gender designation on your birth certificate under the new law with a sworn statement from your health care practitioner stating that you’ve received individually appropriate treatment for gender transition. You may want to obtain a court order, which can also be used to easily update the name and gender designation on all forms of identification and government records, including your birth certificate, driver’s license, non-driver’s ID, U.S. passport, and Social Security records, if you haven’t already updated those. But a court order isn’t necessary—if you prefer, you can just submit a request along with the sworn statement from your health care practitioner directly to the Division of Vital Records. Your new birth certificate will also include the legal name that you previously obtained, and will not contain any indication of your former name or gender designation.
5. What if I was born in Maryland but don’t live in Maryland anymore?
If you were born in Maryland but don’t live in Maryland anymore, you can still update the gender designation on your Maryland birth certificate. FreeState Legal can assist you with obtaining an updated Maryland birth certificate. However, if you want to obtain a legal name change and have not already done so, we recommend that you obtain a court-ordered name change before updating your birth certificate so that you can change both name and gender on your birth certificate at the same time.
You will need to change your name by following the court process in the state where you live. You should contact an LGBTQ legal advocacy organization in the state where you live to learn what the requirements are to do that (you can get a good start learning those requirements and finding a local advocacy organization by looking up your state in NCTE’s National ID Documents Center, available at: http://transequality.org/documents). If you are unsure of whether you need to find a local attorney for assistance, or have other questions, just contact FreeState Legal and we’ll provide whatever assistance we can.
You should also find out if there is a process available in your state to obtain a court order legally recognizing your gender identity. If there is an easy process to do that in your state, you might find it easier to do it locally—you can then present that order from the court to the Maryland Division of Vital Records and obtain a new Maryland birth certificate. But, if there is no court process available in your state, or if it would be difficult or impossible for you to use your state’s process, you likely can obtain a court order from a Maryland court—please contact FreeState Legal for assistance!
Also, remember that a court order isn’t required—you can simply submit a request directly to the Maryland Division of Vital Records along with a sworn statement from your health care practitioner affirming that you have obtained individually appropriate transition-related care. You don’t have to be a Maryland resident to file for an updated birth certificate.
6. What if I was born in another state, but now live in Maryland?
Maryland courts have the authority to issue an order legally recognizing someone’s gender identity if they live in Maryland, even if they were not born here. Although there is no fixed standard that the courts are required to use in deciding whether to issue such an order, the courts usually apply the legal standard for someone to update the gender designation on their birth certificate. We anticipate that courts will now use the standard in the new birth certificate law, which requires a sworn statement from a health care practitioner affirming that the person has received individually appropriate transition-related care. Once you receive the court order from Maryland, you may be able to use it to update your birth certificate from the state where you were born, depending on the law in that state.
7. What if I already updated the gender marker on my birth certificate?
If you already updated the gender marker on your Maryland birth certificate before October 1, 2015, you technically obtained an “amended” birth certificate, rather than a “new” birth certificate. Your birth certificate may contain a notation that it was “amended.” Under the new law that took effect on October 1, 2015, you can contact the Maryland Division of Vital Records and obtain a brand new birth certificate that will not be marked “amended” in any way.
8. If I obtain a new birth certificate, what happens to the records of my old birth certificate?
If you obtain a new birth certificate under the new law, the Division of Vital Records will place its records of your old birth certificate under seal so that no one can access them without a court order. FreeState Legal strongly recommends that when you submit your request to the Division of Vital Records to obtain a new birth certificate, you also get a copy of your original birth certificate before it is placed under seal, and then keep that copy safe with your other important papers—it is possible that an unforeseen circumstance will arise in the future in which you need to establish what your sex assigned at birth was, and if you obtain a copy of your original birth certificate now, you will not need to get a court order to obtain a copy later.
9. What kinds of health care practitioners are eligible to certify that I have obtained individually appropriate transition-related care?
The health care practitioner must be licensed by Maryland or another state as one of the following: a medical doctor (including a physician, surgeon, or psychiatrist), a psychologist, a nurse practitioner, a nurse psychotherapist, a clinical nurse specialist, or a clinical social worker (LCSW-C). They can be licensed in Maryland, or in an equivalent specialty in another state. If your treatment provider is not licensed in one of these specialties, they most likely are supervised by or affiliated with another provider who is licensed in one of these specialties and can provide the necessary statement. The health care practitioner must be someone who has treated or evaluated you and is familiar with generally accepted standards of care for transgender patients, such as the Standards of Care published by the World Professional Association for Transgender Health (WPATH).
10. What about the process is different if I am intersex?
If you are intersex, the only difference is that the statement from your health care practitioner does not need to state that you have had any particular treatment at all. The statement only needs to state that you have an intersex condition and that, in the practitioner’s professional opinion, the sex designated at birth on your birth certificate should be updated.
11. What are the specific documents I need to submit? What does the statement from my health care practitioner need to say?
We recommend that you contact FreeState Legal for legal advice regarding your specific situation, and potential legal representation. As discussed above, some persons are eligible to submit documents directly to the Maryland Division of Vital Records, but it is still advisable to get a court order in many situations.
That being said, FreeState Legal generally recommends that people can submit documents directly to the Division of Vital Records where the following conditions apply:
The Division of Vital Records has made forms available on their website to print out and complete. These forms include a request for creation of a new birth certificate and form statement for your health care practitioner, as well as a request for a copy of the new birth certificate. Both forms must be submitted. The fee for updating the birth certificate is $24 and the fee for a copy of the newly updated birth certificate is $10 (i.e., $34 total); the fees are paid to the Divison of Vital Records, and checks should be made payable to “State of Maryland.” If you previously obtained a name change, you must also submit a certified copy of the court order of name change. (Additionally as noted above, if you do not possess a copy of your original birth certificate, FreeState Legal recommends that you obtain a copy of your original birth certificate before having Vital Records create the new certificate, so that you can keep the copy of your original birth certificate with your important papers. The Division of Vital Records will charge an additional $10 for a copy of your original birth certificate, and this must be requested before submitting the request for a new birth certificate.) Further instructions on submitting these documents are available on the Division’s website.
If you have questions about the process or whether you should submit these forms, please contact FreeState Legal.
12. What if I have more questions? What if I want to start the process of updating the gender designation on my birth certificate right now?
Please contact FreeState Legal for free legal advice and potential representation! We are Maryland’s LGBTQ legal advocates—our attorneys provide free legal services to Maryland’s LGBTQ community, especially those who are low-income and can’t afford to pay for a lawyer.