By Matt Levin
Death certificates are typically pretty boring documents. A box for name, a box for date, a box for place and time, for cause of death. A bureaucratic afterthought to help family and friends settle the affairs of a deceased loved one.
A death certificate was not on the forefront of Chino Scott-Chung’s mind as he waited for the ashes of his best friend, Christopher Lee. Lee, 48, had committed suicide in December 2012, and Scott-Chung was still reeling from the death of the friend who had served as best man in his wedding.
After receiving the ashes, Scott-Chung prepared to leave when the employee from the Oakland cremation services company handed him Lee’s death certificate.
Scott-Chung immediately noticed something was wrong. Something that Christopher would never have consented to if he were still alive.
“I looked at it, and it said female on it,” said Scott-Chung. “And I asked her, ‘Why does it say female? He was male. You must have made a mistake.’”
Lee was a female-to-male transgender person, and had identified as male for two decades. His driver’s license, which Scott-Chung and his spouse had turned over to the Alameda County coroner shortly after Lee’s death, identified Lee as male.
But on Lee’s death certificate, under the box marked “SEX”, was the word “female.”
“That can’t be,” Scott-Chung remembered telling the cremation company employee. “He’s a man, and he has lived as man for close to twenty years.”
The employee explained to Lee that the death certificate was filled out by the Alameda County coroner’s office, and that gender on the form is typically determined by the presence of male or female genitalia.
While Lee identified as male and had secondary male sex characteristics like facial hair, he had not undergone sex reassignment surgery, and so retained female reproductive anatomy.
Scott-Chung was shocked. It wasn’t just that he believed a public document incorrectly identified Lee’s gender. It’s that Lee had spent much of his adult life as a public figure in the Bay Area transgender community, and was in many respects a pioneer in the transgender rights movement.
Lee had co-founded the Transgender Film Festival, then known as “Tranny Fest”, in San Francisco in 1997. The festival, which screens works that seek to counter negative stereotypes about transgender people, was the first of its kind in North America and is still hosted annually in Bay Area theaters.
In 2002, Lee served as the first female-to-male transgender grand marshal of the San Francisco LGBT Pride Parade. He made several films about the transgender experience, including the autobiographical “Christopher’s Chronicles.”
“When they put RIP on people’s tombstones, it’s rest in peace” said Maya Scott-Chung, Chino’s spouse and a close friend of Lee’s. “And I just felt like Christopher’s spirit will not rest in peace with a death certificate that says female.”
Shortly after receiving Lee’s death certificate, the couple contacted the Transgender Law Center, an Oakland-based legal services and advocacy organization, to see what they could do to amend the document.
"Under current law, we were actually surprised to learn that there's essentially no guidance to people filling out death certificates about what they should put for sex," said Ilona Turner, legal director for the Transgender Law Center.
“Whenever transgender people pass away, it’s completely up to the discretion, education, knowledge, of that individual coroner or funeral director to use their best judgment in the face of what is sometimes conflicting information.”
Such conflicting information could arise in the form of reproductive genitalia of one sex and secondary sex characteristics of another, such as in Lee’s case. Because the cost of sex reassignment surgery is generally prohibitively high and often not covered by health insurance, this is common among transgender people.
Adding to the uncertainty, coroners and funeral directors typically rely on the next of kin of the deceased when filling out vital information on a death certificate, including name, age, occupation, and sex. This may be problematic for many transgender people who are estranged from their biological families because of their gender transition.
“This is one of those elements that can come up where people may disagree as to what should be included on the death certificate, what the deceased wanted to have included in terms of their gender,” said Bob Achermann, executive director of the California Funeral Directors Association.
Achermann says this could leave funeral directors in legally vulnerable territory.
“You don’t want to put yourself in the middle, expose yourself to liability because you can’t resolve a conflict between two parties saying totally contrary things.”
The legal limbo surrounding transgender death certificates prompted Transgender Law Center and Equality California, a gay rights group, to push for new legislation in the state capitol this year. The “Respect After Death Act”, introduced by Assemblymember Toni Atkins (D-San Diego), requires that individuals completing a death certificate record the decedent’s sex to reflect his or her gender identity, not simply sexual anatomy.
The bill, AB 1577, passed a health committee vote earlier this month and awaits a May hearing in the Assembly Appropriations Committee. It specifies legal documents that officials should defer to when determining gender on a death certificate. These documents include a birth certificate, a court order approving a name or gender change, a passport, proof of clinical treatment for gender transition, and a valid driver’s license. In the event of a conflict, such documents would trump preferences of next-of-kin.
The bill would also shield coroners and funeral directors from lawsuits if they fill out death certificates according to these new protocols.
“Passing AB 1577 will ensure that transgender people who have memorialized their gender transition can be recognized properly at death with simple, objective criteria,” Atkins said during the bill’s hearing.
Atkins has taken on transgender issues as part of her legislative agenda. Last year, Atkins co-authored AB 1266, which allowed transgender students to use facilities like bathrooms that conform to their gender identity. She also sponsored separate legislation that makes it easier for transgender people to change the name and gender listed on their birth certificate. Atkins will become the first lesbian Assembly Speaker later this spring.
Capitol Resource Institute, a family values advocacy group, has registered opposition to the bill, arguing that it would give legal authority to non-family members to influence the recording of gender on a death certificate. The group did not respond to multiple requests for comment.
Turner, the attorney from the Transgender Law Center, argues that the bill is one step in a broader effort against the posthumous “mis-gendering” of transgender people. Lawyers from the organization say they’ve heard of cases where family bury the transgender deceased in clothes of their birth gender, rather than how the person dressed as an adult.
“It's incredibly painful to the family, friends, and broader community members of a transgender person who passed away when that person is wrongly gendered after their death,” said Turner. “It sends a message, really a pretty strong signal to the rest of the community, that your wishes around your gender, your identity, your life as this person, who you are doesn't matter and can be completely erased once you're not here to stand up for yourself.”
As far as Lee’s death certificate is concerned, Chino and Maya Scott-Chung are currently in the process of attempting to amend it. While Lee was not close to his biological family for many reasons, the family has deferred to the Scott-Chungs to settle Lee’s affairs. The family declined to be interviewed by KQED.
An amended death certificate in California does not replace the original certificate -- an amended version is simply attached to the original. Once the amendment process is complete, if someone requested Lee’s death certificate as a public record, they would see two genders: the original “female” on the old certificate, and “male” on the corrected one.
Additional reporting by April Dembosky.
More: Transgender Activist's Death Opens Political Battle (The California Report Magazine)