Virginia Regulatory Town Hall
Virginia Department of Health
State Board of Health
Board of Health Regulations Governing Vital Records [12 VAC 5 ‑ 550]
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1/4/16  9:49 am
Commenter: Chris Freund, VP, Government Relations & Comm,Family Foundation of Virginia


We at The Family Foundation of Virginia, on behalf of Virginia families, support the rule of law, affirm the natural binary order of male and female as created by God, and caution strongly against swift and sudden legal changes with respect to the natural and universal conception of “sex”. For these reasons, we oppose this request.

1. The Board of Health has no legal authority to make the requested changes. 

Va. Code § 32.1-269(A) provides that “A vital record registered under this chapter may be amended only in accordance with this article and such regulations as may be adopted by the Board to protect the integrity and accuracy of such vital records.” Part E of the same Section states that “Upon receipt of a certified copy of an order of a court of competent jurisdiction indicating that the sex of an individual has been changed by medical procedure and upon request of such person, the State Registrar shall amend such person's certificate of birth to show the change of sex[.]”

The Code of Virginia is clear on this matter: Not only must a person have a court order with which to establish a “sex change” before the State Registrar, but that court must indicate that such “sex change” has been deemed such as the direct result of an affirmative and voluntary medical procedure.

Va. Code § 32.1-252(A) directs the State Registrar, under the supervision of the Commissioner, to “administer the provisions of this chapter and the regulations of the Board in a manner that will ensure the uniform and efficient administration of the system of vital records.”

In so doing, the State Registrar must heed the text of Va. Code § 1-248, which states that “The Constitution and laws of the United States and of the Commonwealth shall be supreme. Any ordinance, resolution, bylaw, rule, regulation, or order of any governing body or any corporation, board, or number of persons shall not be inconsistent with the Constitution and laws of the United States or of the Commonwealth.”

Every regulation, therefore, must be consistent with the statute which enables it. Neither the State Health Commissioner, nor the Board of Health, nor anyone except the members of the General Assembly, has any authority to supersede the plain language of the Virginia Code by regulation or otherwise. Because the plain language of § 32.1-269(E) makes clear that both a court order and proof of a medical procedure are required before a “sex change” can be authorized on a person’s birth certificate, the Board of Health may not deviate from these standards in creating its regulations.

2. “Sex” is not a fluid concept; it is static.

Our most basic conceptions of reality tell us that male and female are distinct from the other. This fact forms the most compelling evidence against changing, or as here, making it easier to change, one’s legal designation as to his or her sex. Moreover, science confirms that “sex” is fixed and determinable at the most basic chromosomal level. If “gender” is a social conception of the roles, tendencies, and general appearances of males and females, it nevertheless would have no influence on the scientific reality of one’s “sex.” Birth certificates are a record of a child’s sex at birth. As such, designations for sex, especially for the purposes of vital records, should not be subject to the ever-changing winds of gender norms. To do so would run contrary to empirical reality as well as orderliness in record keeping. (see Va. Code § 32.1-269(A))  

3. Reflexive changes to fixed and foundational truths breed chaos.    

Good governance and accurate record-keeping require adherence to controlled variables. Drastically lowering the threshold by which a person may “demonstrate” they are a different sex would undermine that need for fixed variables and would open the Department of Vital Records up to chaos and uncertainty. The need to know a person’s sex carries great legal significance in a multitude of settings. If the role of Vital Records is to steward such vital information as is useful for the efficient operation of state and local government, then allowing individuals to “change” their sex on their official records with little effort could not accomplish this. The result will be only confusion.

To demonstrate the chaos that such a relaxed policy would provoke, we need only to consider a few scenarios. What will come of prisoner housing, for example, when a person can legally become a member of the opposite sex without need of an operation and a court order? What sort of problems will this newfound “right” create overnight for male/female segregation policies in prisons across the Commonwealth? What sort of frenzy might such a policy lead to in our public schools, when a legal sex-change designation is afforded to students without need for anatomical distinctions or a determination by a court of the change’s “legitimacy”? The most basic privacies of young girls and boys will suffer greatly, and their safety compromised. Still yet, how might claims of prohibited discrimination on the basis of sex multiply exponentially across the Commonwealth when “sex” is no longer readily identifiable by fixed characteristics? Existing laws prohibiting discrimination could be used as a perverse weapon against anyone who does not first ask a person what their legally recognized sex is – even if it seems obvious to all.        

Furthermore, if science and psychology, as some are claiming, are changing so rapidly as to suggest that yesterday’s conventional thoughts are today’s outdated misunderstandings, then we should consider such volatility of opinion as all the more reason not to take swift actions in changing matters of long-held scientific consensus.

The endless complications created by such a watershed shift in “sex-change” recognition policy, as are proposed in this petition, cannot and were never intended to be settled by the Board of Health or any regulatory body. This is the role, if at all, for the legislature.     

CommentID: 48979