Protect Vital Records Integrity: HB 295

Written Testimony for HB 295 submitted to the NH House Health, Human Services and Elderly Affairs Committee by Shannon McGinley on behalf of Cornerstone Action March 2, 2021

Cornerstone asks that you vote “inexpedient to legislate” on HB 295, relative to initiating amendments and corrections to birth certificates in order to protect the integrity of vital records. We all have a common interest in maintaining accurate, fact-based records as they relate to public health, identity theft and investigating a questionable death.

Although it may be in statute to allow for the birth certificate to be amended (1):

V. Upon receipt of a certified copy of a court order advising that such individual born in the state of New Hampshire has had a sex change, a new birth record shall be prepared to reflect such change.

This bill will allow the birth certificate to be altered based on gender identity (2) which can be fluid – and often is. It will also no longer require a court order making it even easier to change a government document based on something that can be fluid – and often is.

I’d like to point out a few thoughts that came to my mind from the hearing before providing you with my written testimony from which my verbal testimony was derived:

During the hearing, there was a discussion about the marginal note. There was an unanswered question: Does the marginal note indicate that there simply was a clerical amendment or does it describe the nature of the amendment? I hope this question is answered in order for legislators to make an informed decision.

Rep. Cannon, the bill’s sponsor, seemed to maintain in the hearing that there was a benefit to authorizing a town or city clerk to amend the birth certificate because there would be a marginal note to indicate the certificate was amended. I assure you that based on what we have seen around the country, those who advocate for transgender individuals will soon do whatever they can to remove that marginal note – to erase any record of objective biological sex.

Each one of you should vote on this bill with the understanding that very soon, there will be no marginal note. There will be no objective record of the sex of the person born. There will be no way to trace your family history accurately, to track vital statistics or even to investigate a death. Bones don’t reveal gender identity. They reveal DNA.

The basis of my verbal testimony:

Society has an important interest in maintaining accurate vital records, especially birth records, and maintaining accurate birth records does not violate federal or state law.

Government officials have been tracking vital statistics for nearly 500 years, specifically births, deaths, and marriages based on consistent, well-established, and understood criteria. Today, vital records offices record over 11 million “vital events” annually in the U.S. There simply is no federal or NH law that requires us to change those criteria to replace objectively defined “sex” with the subjective classification of “gender identity.”  One of the government’s most basic duties is to protect the health and safety of its citizens. To do that, it needs to use up to date and accurate vital records data to help diagnose and solve systemic health-related problems, and sex has been shown to be an important data point in that effort.

The COVID pandemic is an example of where having accurate information about a person’s sex is necessary for diagnosis, treatment, and better understanding the disease. I’ve seen articles for example about males being identified as a risk factor for death and ICU admission. (3)

Given their importance, the objective measuring criteria on which vital records are based should not be altered based upon a person’s subjective feelings or experiences. 

Allowing individuals to alter their vital records, including birth certificates, based upon subjective feelings or experiences undermines the government’s and the people’s interest in having an accurate vital records database.

What if a gentleman in his 70s believes he has the appearance and identity of a 40-year old man. The state would not allow him to retroactively change his date of birth by thirty years in order to conform to how he now looks or feels.

If you were born in Russia but now living in the United States, would he/she be able to change his/her birth certificate indicating that they were born in the U.S. because they no longer identify as Russian? Would he/she be able to be president?

The same is true of a person’s sex. Sex is binary (male or female), fixed, and objectively verifiable. One’s sex is genetically established at conception, ascertained at or (via sonogram or genetic testing) before birth, and may be verified by objective factors such as chromosomes, gonads, hormones, and genitalia. 

Allowing minors to change birth records further pushes them down the road of gender dysphoria. Studies show that 80-90% of adolescents will identify as their biological sex as they pass through puberty IF their alternative gender identity is not affirmed.

Maintaining accurate birth records is not discriminatory. 

Some argue that it is necessary for individuals to be allowed to alter their vital records in order to avoid discrimination based upon their gender identity—such as when an individual’s outward appearance as a female does not align with the male sex listed on a birth certificate. But there are flaws in this argument. 

Facts are not and can never be discriminatory. Birth certificates, death certificates, and other vital records are only intended to document facts. Efforts to attribute any further purposes to them (such as affirming a person’s internal sense of age, sex, or locality of birth) are counter to the government’s vital interest in having accurate factual information. 

Additionally, America is more tolerant and accepting of individuals who identify as transgender than ever before. In fact you could argue that their biological sex is an intrinsic part of their story. Treating them with the dignity and respect that all persons are entitled to receive does not mean that we erase certain factual information, especially when that information helps the government better protect all citizens’ health and safety.  

The proposed revisions to RSA5-C:87, V are an effort to erase male and female “sex” from state law, as well as dramatically lessen the requirements to change the birth certificate identification.

Under New Hampshire law, a birth certificate is required to include the sex of the individual (4). Factual information regarding a person’s sex is among the vital statistics that New Hampshire law requires to be maintained. Yet HB 295’s proposed revisions to our law attempt to erase any mention of the objective biological designation “sex” and replace it with the vague term “gender identity.”  To establish gender identity, one need only show that it is a “sincerely held belief” verified by someone in the medical or counseling community. 

New Hampshire’s vital records data should not be based upon subjective beliefs or feelings, however sincerely held. Rather, they should be based upon facts, including the factual information regarding a person’s biological sex at birth.  Please vote ITL on HB 295.

Footnotes:

1. RSA5-C:87, V 

2. RSA354-A:2, XIV-e

3. https://www.nature.com/articles/s41467-020-19741-6

4.   See, e.g. ,  RSA5-C,19(II)(a)(1)  (requiring a hospital to file a birth recording including “Information regarding the child, including name, date and time of birth, and sex.”).