Transgender divorce in Illinois

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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Changing Your Gender After An Illinois Divorce

Transgender divorce in Illinois

Divorce is a time for change. For some couples, that means a party to a divorce comes to the realization that they identify with a new gender. When this occurs during or after a divorce, a party has certain rights they can invoke in order to effectuate their appropriate gender identification.

You Have The Right To Be Identified By The Gender Of Your Choice In An Illinois Court Of Law

“No unit of State, county, or local government in Illinois shall…utilize criteria or methods of administration that have the effect of subjecting individuals to discrimination because of their race, color, national origin, or gender.” 740 ILCS 23/5(a)(2)

“[T]ransgender individuals, fell squarely within section 5(a)” Johnson v. MUNICIPAL EMPLOYEES’, OFFICERS’, 124 NE 3d 515 – Ill: Appellate Court, 1st Dist., 2nd Div. 2018

A divorce court is a unit of local Illinois government. A court employee can no more purposely misgender you than they can call you a derogatory name based on your race.

Changing Your Name As Part Of Your Illinois Divorce

Everyone who changed their name as part of getting married has the right to change their name back to their maiden name in an Illinois divorce.

“A judgment under this Section shall contain a provision authorizing the person to resume the use of his or her former or maiden name, should he or she choose to do so, at any time he or she chooses to do so. If a judgment contains such a provision, the person resuming the use of his or her former or maiden name is not required to file a petition for a change of name under Article XXI of the Code of Civil Procedure.
    If a person whose marriage is dissolved or declared invalid chooses to resume the use of his or her former or maiden name, he or she is not required to provide notice by publication pursuant to subsection (a) of Section 21-103 of the Code of Civil Procedure.” 750 ILCS 5/413(c)

By the letter of the law, a name change based solely on a gender reassignment would not be applicable under the Illinois Marriage and Dissolution of Marriage Act.

However, these laws were modified in Illinois in 2014 by the Religious Freedom and Marriage Fairness Act.

“All laws of this State applicable to marriage, whether they derive from statute, administrative or court rule, policy, common law, or any other source of civil or criminal law, shall apply equally to marriages of same-sex and different-sex couples and their children.” 750 ILCS 80/10(a)

“Parties to a marriage and their children, regardless of whether the marriage consists of a same-sex or different-sex couple, shall have all the same benefits, protections, and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law, or any other source of civil or criminal law.” 750 ILCS 80/10(b)

Quoting this Act should be enough to let an Illinois divorce judge determine that “maiden name” should no longer restrict name changes to opposite sex couples.

Changing Your Gender In Illinois

In Illinois, your gender is referred to via the state’s “vital records”

“”Vital records” means records of births, deaths, fetal deaths, marriages, dissolution of marriages, and data related thereto.” 410 ILCS 535/1

State recognition of your new gender can be accomplished by filling out the Application For Gender Reassignment Forms.

You will need an Illinois licensed psychologist, psychiatrist or medical doctor to certify that you are identifying with a new gender.

“For a person born in this State, the State Registrar of Vital Records shall establish a new certificate of birth when he receives any of the following:

A declaration by a licensed health care professional or licensed mental health professional who has treated or evaluated a person stating that the person has undergone treatment that is clinically appropriate for that individual for the purpose of gender transition, based on contemporary medical standards, or that the individual has an intersex condition, and that the sex designation on such person’s birth record should therefore be changed. The information in the declaration shall be proved by the licensed health care professional or licensed mental health professional signing and dating it in substantially the following form: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).”. The new certificate of birth shall reflect any legal name change, so long as the appropriate documentation of the name change is submitted.” 410 ILCS 535/17(d)

If you were granted leave to change your name via the judgment for dissolution of marriage, you must file this Affidavit and Certificate of Correction Request in order for the state of Illinois to modify all of your state records to reflect your new name. In lieu of attaching a certified court order changing your legal name, you can attach a certified copy of the judgment for dissolution of marriage that allowed the name change.

After these changes have been processed by the Illinois Department of Public Health, your original documents with your original gender can never be seen or inspected unless by order of the circuit clerk.

“Thereafter, the original certificate and the evidence of paternity, legitimation, or change of sex designation shall not be subject to inspection or certification except upon order of the circuit court, request of the person named on the certificate of birth, or as provided by regulation.” 410 ILCS 535/17(2)(a)

Getting divorced is hard but worthwhile. We are all capable of growth. If you are transitioning, my office is happy to help you divorce in an atmosphere of respect and professionalism. Contact us today to learn more about how we can help.