In life, transgender people face tremendous hurdles in trying to get accurate identification reflecting their true identities. In death, that's no different.
Last November, Jennifer Gable made national headlines. Gable was a 32-year-old transgender woman in Idaho who reportedly died of an aneurysm. During her funeral service, she was presented as a man with hair cut short and dressed in a suit. Despite having legally changed her name, the service—as well as the paid online obituary hosted by the funeral home—only made mention of her by the name she had been assigned at birth. Two friends of Gable's who attended told the Idaho Statesman that they were "livid" during the funeral and declined to visit the gravesite afterward. Statements to the press and on social media from some of her other friends expressed similar sentiments.
As outrageous as Gable's case may seem, it is unfortunately not unique. When I spoke to Michael Silverman, executive director of the Transgender Legal Defense & Education Fund (TLDEF), he told me: "In life, transgender people face tremendous hurdles in trying to get accurate identification reflecting their true identities. In death, that's no different."
Silverman says unsupportive families often behave similarly to Gable's. "We have had situations in our office where the birth family of the individual has swept in—often with the power of the law on their side—that the surviving spouse has no claim to the body of the deceased and have simply taken it and buried the deceased as they chose. That's a traumatic and horrible situation for the surviving spouse of the transgender person."
"In life, transgender people face tremendous hurdles in trying to get accurate identification reflecting their true identities. In death, that's no different."
The possibility of a spouse losing control over his or her partner's remains is a real problem, especially in states where marriage equality hasn't yet been achieved. Silverman told me his organization was approached by a woman in Florida whose husband was a transgender man. Because their marriage wasn't legal on paper in the state of Florida, his family was able to take control of his body. Both his death certificate and burial documents now list him as female. Because nobody in the woman's immediate social circle knew that he was transgender, Silverman told me she made the tough decision to not pursue the matter further. "It was a terribly traumatic situation, [but] it's not clear that fighting back would have been successful."
This lack of marriage recognition in death can have financial implications as well. In a recent case posted on their website, TLDEF represented a woman named Nancy, whose husband Michael was a transgender man. Michael's birth certificate listed him as female, which very nearly led the funeral home to do the same with his death certificate, until Nancy objected and they recorded him as male. Nancy claims that despite accepting Michael as male during his 40 years employed at an auto manufacturer in the Midwest, the benefits administrator initially withheld Nancy's spousal benefits because they claimed Michael was not "conclusively male" when they got married and therefore their marriage was null and void for the purposes of her spousal benefits. She says this forced her to rely on food stamps and Medicaid. Only after TLDEF sent a letter to the company's General Counsel on Nancy's behalf did they reverse their decision.
It varies by state, but the portion of the death certificate that indicates the sex of the deceased is often filled in by a funeral director, which is also the same person who typically assists with funeral arrangements and burial. Silverman says that this process is heavily influenced by whoever has legal authority over the body, or simply whoever the funeral director feels beholden to. "If I'm in control of the body and I say this is my son or daughter, there are not many funeral directors who are going to push back in the absence of some authority that tells them to," Silverman explained. "If, on the other hand, I am the surviving spouse and I say this was my husband or wife, they're going to listen to me most likely."
This is what seems to have happened in Jennifer Gable's case, as evidenced by the Idaho funeral director's comments to the Statesman: "[I] did what I was legally bound to do by my client," he said. Adding that his funeral home had honored "the wishes of the next of kin."
Given the fact that each state has its own set of laws regarding death certificates and burial regulations, the closest thing to a national standard is probably the CDC's 2003 Funeral Directors' Handbook on Death Registration and Fetal Death Reporting. On page 14, the instructions for filling out the box for "Sex" explain: "Enter male or female based on observation. Do not abbreviate or use other symbols. If sex cannot be determined after verification with medical records, inspection of the body, or other sources, enter 'Unknown.' Do not leave this item blank." Identical language can be found on the CDC's handbook for medical examiners and coroners on page 45.
Ilona Turner, the legal director of the Transgender Law Center, told me that this often leads to medical examiners making a decision based on arbitrary physical indications. "There's all kinds of different bodies that people have, it's a very imprecise standard, [and] we obviously know for transgender people that it's just very likely to be inaccurate and should not be determinative of what a person's sex is."
"Enter male or female based on observation. Do not abbreviate or use other symbols. If sex cannot be determined after verification with medical records, inspection of the body, or other sources, enter 'Unknown.' Do not leave this item blank."
One such high profile case was that of Christopher Lee, a trans man from California who died in 2012. Lee, a well-known activist, identified as male for 20 years and had co-founded the Transgender Film Festival in 1997. When his best friend Chino Scott-Chung went to pick up his ashes, he was shocked to discover that the death certificate listed Lee as female. Even though Scott-Chung provided Lee's driver's license, which listed his sex as male, the staff member informed him that the coroner makes the judgment based on an examination of the genitalia—and that this was in accordance with the law.
This prompted Equality California and the Transgender Law Center to successfully lobby the California legislature to change the law. This past September, the Respect After Death Act was signed by the governor. The law, which takes effect on July 1, introduces a legal requirement that stipulates the death certificate must reflect the decedent's gender identity. It also allows for anyone to present documentation that can supersede the wishes even of someone who has legal rights to control the disposition of the body. The documents listed in the text of the law are "a birth certificate, a driver's license, a social security record, a court order approving a name or gender change, a passport, an advanced healthcare directive, or proof of clinical treatment for gender transition." However, the law also exempts funeral directors and medical examiners from legal liability for claims based on the decedent's gender.
While the new law is certainly a step in the right direction, it hasn't yet been implemented, and not everyone seems to have gotten the memo. Turner described a recent case the Transgender Law Center had to assist with: "We worked on a case just about a month ago with a transgender person that passed away in California and had a supportive surviving partner and a supportive mother. Even with all that, the coroner in this case who was filling out the death certificate initially insisted that they were going to mark down the person's sex assigned at birth rather than their gender identity. We had to get on the phone to the coroner's office and they didn't end up backing down until a staffer from [California] Assembly Speaker Atkins' office called the coroner's office to remind them about this new law. They did ultimately back down, but it took a lot of wrangling to make that happen."
California is just one state, albeit a large one. And even there, the law only applies to the death certificate. Funeral and burial arrangements are generally a private matter, and there's little that public regulation could achieve on this matter anyway. The lack of awareness and acceptance of transgender people—often by their immediate families—means that for the foreseeable future there will not be a shortage of relatives who memorialize people in ways that brazenly ignore the gender they identified with in life.
Before death, there are certain steps that can be taken proactively to avoid all of this. Both Silverman and Turner stressed the importance and effectiveness of advanced funeral planning by putting any such wishes in writing and being as detailed as possible. There are many ways to do this, but most states allow for a designated agent who is legally empowered to make funeral arrangements even if they are not the next of kin. The Transgender Law Center also has some resources on its site that even include a way to specify who should not have authority over your remains.
Ultimately, however, Turner believes that a lasting improvement on this issue can only come through continuing to inform and educate the public. "We just need a lot more education across all of society about who transgender people are, what it means to be transgender, what it means to be supportive, and basically just to be more respectful of a person who is transgender"—in life, and in death.
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