John F. Kennedy University Top Minds: Ora Prochovnick, JD

Gender Change, Gender Identity, and the Law

Professor Ora Prochovnick teaches in the College of Law, JD Program at JFKU. In this video Professor Ora discusses the legal aspects of changing one’s gender identity.

I’m Ora Prochovnick, Professor at the College of Law and Director of Clinical and Public Interest Law Programs.


The legal aspects of changing one’s gender identity, so that your documentation matches your self-expression and identity, has actually become much, much easier in California. Historically, it was very difficult, and in some states, it’s still not possible.


What is very difficult for a person is when their paperwork does not match how they express themselves in the world. It can create serious challenges. If you’re going through immigration with a passport that has a photo on it which is what you looked like 10 years ago, and it’s a picture of a woman, and you present as a man, with a full beard. That can be very hard for somebody.


California has recognized this, and had also recognized the deep, inherent importance of being able to express your gender identity both through your name, and through your physicality and how you move through the world. So there are legal processes in place to allow one to align one’s documentation with one’s gender identity and expression. And there are also even simpler techniques now, so that you don’t necessarily even have to go through that legal process, because so many people don’t have easy access to the attorneys, and can’t understand the forms that need to be completed.


I think it might help to start with just some understanding of some of the terminology that’s used. When we’re born in this society, we get placed into certain boxes. And that includes racial identity. It includes sex and gender. And we aren’t, as human beings, are often much more complicated than those little boxes on a form. We’ve come to recognize that with race. We, in California, might have a whole list of 15 options, and then it’ll still be Other, reflect the fact that some people are mixed race, or don’t have one clear cultural or ethnic affinity.


We haven’t quite leaped to that step yet in the area of sex and gender, but we’re getting there. So California just passed a new law, that was just signed by our governor, that actually recognizes that somebody can be male, somebody can be female, or somebody could be other. And we have what some people are calling a “third gender” in California. Some people use the term “genderqueer,” or “gender binary,” but you don’t any longer have to pick A or B if that doesn’t match who you are.


Some terms that people sometimes confuse. There is your “physical sex.” We are born with clear gender markers: genitalia, X and Y chromosomes. And we’ve come to think that you are either born male or female. There’s actually long been knowledge in the medical world, of another category of being “intersex.” And those are individuals who are born with both male and female physical manifestations.


Historically, our medical world felt the need to assign a gender at birth, and often would do surgery on a new infant to assign them to either male or female, that turned out not to actually match. And there’s a lot of activists in the intersex world who are fighting that, and allowing someone to actually grow up and choose for themselves which of those work better for them. So that’s physical sex.


There is also “gender identity,” and gender identity is who, deep in your heart and mind, you know and feel you are. Sometimes, we might use the terms of “masculine” and “feminine,” rather than “male” and “female,” to show those distinctions.


In addition to gender identity, there’s also “gender expression.” Gender expression is how you physically present out in the world. So I might identify one way, and have yet a different category that I physically fit into. But how I express myself might be at a third one, and sometimes in some of the LGBT communities, you hear terminology like “butch” and “femme” to go with gender expression.


Finally, there’s what I would call “sexual orientation.” Sexual orientation is who a person is attracted to. Who they’re drawn to in an emotional and physical way. So who they might seek as a physical life partner, as a sexual, or an emotional partner. People who are attracted to somebody of their same gender, we refer to as “gay,” or “lesbian,” or “homosexual.” People who are attracted to somebody of the opposite gender, we refer to as “straight” or “heterosexual.” And there are in between points, where you might be attracted to both, and we’ve used the terminology “bisexual” for that. You have people today who refer to that as “pansexual.”


There’s often a confusion between … Each of us has a sexual orientation, which is separate and distinct from one’s biological sex, one’s gender expression, and one’s gender identity. Some of us are born in a way where those are all in sync in a way that society accepts, and so we don’t question them, and we don’t think about them as much as some of us who might have a gender expression and gender identity that is different than what was assigned to us at birth, and we’re compelled to think and act upon it more. But in fact, all of us have all four of those. It’s interesting for all of us to do some thought and exercise about where we lie on each of those.


I would say that all of those, also, are not boxes at either end, but a long spectrum. So, for instance, with sexual orientation, it’s not that you’re gay, straight, or smack in the middle, but there’s actually a fairly nice flow between them, and it might change over time. The same with gender expression, as you might express yourself as purely masculine, as our society views that … as purely feminine. But more commonly, there’s a range in between, and people also are somewhat fluid, and fluctuate in that regard.


In terms of the legal paperwork that could help one match that, we are all assigned a name at birth, and we’re assigned a gender that shows up on our birth certificate. And there are [now 00:06:34] processes where we could change that in all of our paperwork. So you could do a legal name change, and change your name to something that’s more in conformity with how your gender expression works.


You can also do a gender change, so in California, you could go to the court, and the court will do a legal change of gender. And then that will show up in your DMV paperwork, you could change your original birth certificate, you could change your passport. There are also methods now, in California, where you could do changes to much of your legal paperwork without going through the court process, but because of post-9/11 challenges, any changes in the name have to go through the court name change.


The challenges when somebody has a desire to do some of these legal name changes, and doesn’t necessarily want to identify with an exact box, is now starting to be recognized in California. What I would push us to think about is something even more interesting and novel than where we’re at right now, where you could be male, female, or a third gender, and that is to challenge our society to think about a point where we don’t need gender markers on our identification.


I would mention that there was a time when society was compelled to include racial markers on our ID cards, and we’ve now happily developed past that. And I question why we need our DMV … Why does my driver’s license need to note whether I’m male or female? That’s not going to affect my skill behind the wheel, and it’s not going to necessarily match the picture that is there. Because we make many assumptions about who somebody is when we’re told their sex or gender, and often those assumptions are wrong.


Rather than working so hard to be able to change the markers on one’s legal paperwork, I think it would be really interesting to work towards a moment when we didn’t need to have those markers. That doesn’t mean that people don’t still have a gender and a sexual identity, and have an ability to share that, but there’s no reason that, for a legal purpose, those need to show up anywhere. Particularly now that we have marriage equality, and the gender of your mate is not an obstacle to who you can and can’t marry. I question the need for those gender markers at all.


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