The New York Gender Recognition Act took effect on December 21, 2021. School district and BOCES recordkeeping protocols and procedures must be updated to verify compliance with the Act.
- Name Change: The Act amended New York Civil Rights Law Section 64 by adding new subsection 3 to provide that a name change order or other documentation of name change is sufficient to change an individual’s name on any document or record issued or maintained by the state of New York or any subdivision thereof, or any private entity, including but not limited to, all school records for current and past students, archival records and marriage certificates. The failure of a public or private entity to comply with such request may constitute a violation of the Human Rights Law, the Civil Rights Law and any applicable local non-discrimination law. A refusal to comply may be the basis for a complaint to the New York State Division of Human Rights or other enforcement entity.
- Sex Designation: The Act amended the New York Civil Rights Law to add new Section 67, which allows for a petition for leave to change sex designation to be made, and allows the petition to change the sex designation of an infant to be made by the infant through either of the infant’s parents or guardian. Such request may be made simultaneously with a petition for name change or on its own. When an individual petitions the court to recognize their gender identity or to amend the sex designation on an identity document, the court must issue the order upon receipt of an affidavit from such individual attesting to gender identity or the reason for the change. No additional medical evidence will be required to grant the request. Importantly, Section 67 further provides that no such order shall be required to amend an identity document issued within New York State, and that no such order shall be required to otherwise recognize the gender of an individual and treat the individual consistent with the individual’s gender identity within New York State or under New York State law.
The Act additionally added new Section 67-a to the New York Civil Rights Law, which provides that if the court is satisfied that the documents submitted for purposes of the sex designation are true, there is no reasonable objection to the change of sex designation proposed, and in the case of an infant the interests of the infant will be substantially promoted by the change, the court will make an order authorizing the petitioner to assume the sex designation proposed.
- “X” Designation on Driver’s Licenses and State-Issued Identification Cards: The Act amended the New York Vehicle and Traffic Law Sections 490(2) and 502(1) to allow New Yorkers to use “X” as a non-binary sex designation on New York State driver’s licenses and state-issued identification cards.
- Parent Designation on Birth Certificates: The Act amended New York Public Health Law Section 4132 by adding new subsection 5, which allows each parent of the child to choose to be designated on the child’s original birth certificate or by amendment as “father” or “mother” or “parent”.
- Birth Certificates Designation “X”: The Act amended New York Public Health Law Section 4138 by adding new subsection 1(f), which provides that a new birth certificate shall be made whenever any person born in New York state submits an application to change the gender on the birth certificate and an affidavit attesting under penalty of perjury that the request for a change of gender to (female, male, or X) is to conform the person’s documents and records to the person’s gender identity and is not made for any fraudulent purpose. While allowing a sex designation of X, the law states that no entity shall require X as a sex designation of any individual. Upon receipt of the documentation, the Commissioner of Health shall establish a new birth certificate reflecting the gender stated in the application and any change in name, if accompanied by a court order for a change of name. If such application is made on behalf of a person younger than seventeen, the affidavit must be signed by the person’s parent, legal guardian, mental health or medical provider, or social services provider.
- Streamlining of the Name-Change Process: The Act streamlined the name change process by removing certain notice, publication and consent requirements.
Schools district and BOCES must continue to adhere to the regulations promulgated by the New York State Education Department pursuant to the New York Dignity for All Students Act related to the accommodation of transgender and gender non-conforming students, as well as the 2015 guidance entitled, “New York State Education Department Guidance to School Districts for Creating a Safe and Supportive School Environment For Transgender and Gender Nonconforming Students.” This is the case even in the absence of a court order.
The Gender Recognition Act, however, is a reminder to school districts and Boards of Cooperative Educational Services that they must be prepared to update the name and gender reflected in certain records of current and former students upon request. In the absence of a court order or other proof of a name change or sex designation, some limitations in changing name or gender designation will continue to exist (e.g., state testing and insurance claims). Student management systems should also reflect a non-binary option moving forward.
In the education and employment context, school districts must also continue to comply with the Gender Expression Non-Discrimination Act, known as “GENDA,” which explicitly prohibits discrimination based on “gender identity or expression” which is defined as “a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.”
Finally, school districts should already have designated all single occupancy bathrooms as gender neutral, removing designations of male and female, pursuant to a law signed by the Governor in December 2020. If they have not, they should do so immediately.
If you have any questions, please contact the Harris Beach attorney with whom you usually work.
This alert is not a substitute for advice of counsel on specific legal issues.
Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.