NCTE advocates with many federal agencies on many issues. Often the policies we work for are obscure, small-seeming tweaks that most transgender people haven’t thought much about. They are important, but generally thought of or understood less. In other cases, the policies we want are very familiar and desperately important to many transgender people. One example is our advocacy with the Social Security Administration (SSA). Most transgender people know that SSA has a troublesome and outdated policy for changing gender markers on Social Security Accounts. And many folks are aware of the so-called “no-match letters” that many of us have received at work, effectively outing us as transgender when we have an inaccurate gender marker on our Social Security (SS) account. But transgender SSA policy work actually has a third component: SSA’s Program Operations Manual System (POMS) guidance that treats all marriages involving transgender people as “questionable” or suspect, without providing clear guidance, resulting in inaccurate and wasteful scrutiny of beneficiaries’ medical status. Clearly, we want to fix all three areas.
Gender Designation Change
Current SSA policy requires documentation of sex reassignment surgery in order to change gender data in SSA records. This policy does not reflect current medical standards. Further, this outdated SSA policy does not comport with recent State Department policy updates for changing gender markers on Passports and Consular Reports of Birth Abroad (CRBA). Because this information is shared through SSA computer matching programs and listed on Medicare cards, outdated gender markers out transgender people at work, in pharmacies, at DMVs and in many other settings, thereby placing them at real risk of discrimination and public disrespect. Retaining outdated gender markers serves no SSA program purpose and actually causes needless confusion for SSA and others.
We have advocated for an updated and more pragmatic policy for changing gender data, based on the policy adopted in June 2010 (as updated January 2011) by the U.S. State Department for updating U.S. passports and Consular Reports of Birth Abroad (CRBA). The U.S. Office of Personnel Management adopted a similar approach for updating federal personnel records. Under this approach, gender change would be based on a standardized, signed statement by a licensed physician that an SS account holder has had appropriate clinical treatment for gender transition to the new gender. This approach is supported by medical experts and is also being followed by more and more states for driver’s licenses and by some for birth certificates.
SSA Matching (Verification) Programs (AKA Gender No-Match Letters)
Many of SSA’s computer matching programs, including the SSNVS system for employers, include a field for gender. When employers submit records to the SSA with inconsistent gender markers in the SSA database, the employer is notified of the discrepancy, which frequently leads to the illegal outing of employees as transgender. Notices generated by other SSA matching programs have led to transgender people encountering similar problems with state benefit programs and motor vehicle agencies. SSA has acknowledged that it has no programmatic need to collect and match gender data, and has eliminated gender from some systems while leaving it as an optional field in others. In the absence of any programmatic need, gender matching by SSA likely violates the federal Privacy Act and certainly violates the privacy of transgender people. Based on several years of work by NCTE and others, SSA had ceased this practice for many of its programs, but the problem remains.
NCTE advocates that SSA take prompt action to eliminate the collection and matching of gender data in all of Its matching programs. In the event that technical constraints prevent ending this matching immediately, we have urged SSA to take action to prevent the issuance of the notices regarding gender non-matches to employers or other third parties.
Currently, SSA’s POMS (Program Operations Manual System) guidance treats all marriages involving transgender people as “questionable” or suspect, without providing clear guidance. This approach results in needless scrutiny of beneficiaries’ medical status and delay of benefit approval and sows confusion in an area where the law is actually clear. Marriages between a person who has transitioned and a person of the opposite sex are valid in nearly every state and should be treated as valid by SSA in almost all circumstances. When a person transitions after entering into an opposite-sex marriage, this does not affect the validity of the marriage under state law and should not affect its validity under DOMA. These two principles should resolve the majority of questions faced by SSA personnel.
NCTE has been advocating directly with the Social Security Administration for several years. We have been able to convince the agency to stop most of the no-match letters that they would have previously sent. Other victories, such as the new passport policy, we have won with our allies have created an environment in which the SSA is more likely to change their policies. We are extremely hopeful that our advocacy will prevail — and sooner than later.