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The National Council on Identity Policy Legal History: Birth Certificates & Identity The National Council on Identity Policy (NCIDP) was born of the struggles of one tenacious survivor of domestic violence and stalking. The NCIDP continues her work with the help of many. Read more about the NCIDP... ~ This is a page from the NCIDP "A Brief History of Identity" collection. These pages are intended to provide a context for understanding the development of legal principles regarding identity information as it continues to bear upon modern legal governance of identity information. This is an extract of a history of this subject highlighting those aspects that enhance understanding of why the laws of today are such as they are, and how they came to be that way. These pages are intended to cast important perspective upon relevant law, but are not intended as a comprehensive sociological study of these subjects. Throughout most of history, by custom and tradition, an ordinary individual's declared name was the extent of identity information used to describe a person. There were no Social Security Numbers, Drivers' Licenses, Passports, voter registries, deed polls, credit reports.... Any individual could [and can] adopt any identity they chose at will, and their word of it was [and is] the fact of it. (Jonson v. Greaves (KB, 1765); Christianson v. King County (S Ct., 1915); et al.). The idea that an individual might be stuck with a fixed identity at any time in life was never conceived of, and was [and is] abject violence. (Keeble v. Hickeringill (QB, 1707)). That it might be dictated to an individual at any time was unimaginable, and is unconstitutional in the U.S. (Entick v. Carrington and Three Other King's Messengers (KB, 1765); Planned Parenthood of Southeastern Pa. v. Casey (S Ct., 1992); Lawrence v. Texas (S Ct., 2003); et al.). Time and again, history has shown that the slightest routinized solicitations of government to identify individuals is born of, or leads to, the selective oppression of individuals. The privacy right of anonymity is the first and most profound defense of personal safety and common liberty. * Birth Certificates * In England, where English Common Law arose, even into modern times a birth certificate is not given official regard as an identity document, although the novel phenomenon of demanding it as such has very recently arisen parallel with this same novel trend in the U.S. [and has led to a 2004 statute in Britain authorizing issuance of new birth certificates in some cases, despite its official status as NOT being an identity document]. Indeed, the early advent of birth certificates bore no impact upon the ability of an individual to change identity at will, initially being devoid of identity information specific to any individual, and the complete and universal disregard for their existence in daily business and life prevented their existence from infringing upon that right. That is, birth certificates were not solicited for any purposes except later in contested inheritances of noble titles, and so their rare existence did not disclose the existence of any former identity of an individual, and such information remained strictly private throughout life. Presently, in U.S. law, a birth certificate continues this legal tradition and does not dictate an individual's contemporaneous legal identity, and is Constitutionally prohibited from doing so. (Marbury v. Madison (S Ct., 1803); Christianson v. King County (S Ct., 1915); Harman v. Forsenius (S Ct., 1965); Department of Justice v. Reporters Committee for Freedom of the Press (S Ct., 1989); Planned Parenthood of Southeastern Pa. v. Casey (S Ct., 1992); Lawrence v. Texas (S Ct., 2003); et al.; Jonson v. Greaves (KB, 1765); Entick v. Carrington and Three Other King's Messengers (KB, 1765); et al.). In order to make any use of a birth certificate subsequent to birth in proper accordance with the rule of law, it is necessary for states to issue new birth certificates to an individual upon identity change, and without cross-reference to any prior identity information or certificate, at the sole direction of that individual. Failure of any agents of the state to do so constitutes felony violations of law. (18 U.S.C. §§ 241, 242, 1001, 1028, et al.).
The concept of the birth certificate appears to have derived from customs among nobility, where it was originally applied strictly among nobility. It was a determination of a putative heir to a noble title, and the role of this certification was to ensure the ongoing lineage of that particular noble title. Acknowledgment and acceptance of a child as an heir by a noble family was optional, and at the discretion of the noble head of household. Such 'certifications' were issued directly by heads of noble households as acknowledgments of a potential heir and inheritance right of that heir, and could be issued or revoked at any time by that noble (the putative heir could be disowned) to any individual able to fulfill the duties of the role of heir to that title, even an individual biologically of another lineage (the noble could adopt any child or adult as an heir). During later times of increasingly stringent patrilineal patriarchy, family noble lineage became predominantly patrilineal (passing from patriarchal head of household to patriarchal heir), and gender role associations by such certifications slowly emerged. The right to inherit noble titles also came to be determined more formally in the order of seniority of potential heirs, giving rise to an interest in determining the order of the acquisition of a potential right to inherit, later becoming more stringently the order of birth (hence documentation of dates of birth, and increasingly consistent issuance of such certifications at birth). In other words, the 'birth certificates' were certifications of noble lineage and inheritance right that came to be based upon reasonably demonstrated ability to properly fulfill the social role expectations of a patriarchal heir to a family lineage. Any heir without such acknowledgment was not a noble patriarchal heir, and therefore was not documented by such certification. In short, the ancient legal role of a 'birth certificate' was more akin to the modern legal role of a will for noble titles (and the estates associated with those titles). But, again, to ensure the ongoing lineage of that particular noble title. This is why, to this day, the stigma of an 'illegitimate', or 'bastard', conception is so extreme, and nearly on par with feminizing epithets directed at putative males. Such 'birth certificates' were also not originally in the form of paper documentation, but in symbolic form, such as a grant of right to wear a noble family crest or shield or other symbols on armor or clothing, or go into combat under the standard or banner that represented the noble family, with the putative heir granted the greatest leadership authority (second to the nobleman patriarch himself) under that standard or banner. In these early forms, there were no representations of identity information specific to the individual heir, but only familial information and the putative rights of inheritance to familial noble title. Modern birth certificates sometimes retain vestiges of these early traditions in the form of disclosing parental identity information on the face of some birth certificates. In general, a putative heir had ongoing opportunity to earn acknowledgment of paternity and masculinity (patriarchal suitability), and the right to inherit, from the putative paternal nobleman throughout life, and could even re-earn it again subsequent to being disowned. Later, when the system of nobility was banished from the U.S., this control over "birth certificates" at law was transferred from the patriarchal nobleman to the free individual, conforming it to the same standard (dictated exclusively by the individual) as for identity change dating to earlier times when name was the full extent of identity. (Marbury v. Madison (S Ct., 1803); Christianson v. King County (S Ct., 1915); Harman v. Forsenius (S Ct., 1965); Department of Justice v. Reporters Committee for Freedom of the Press (S Ct., 1989); Planned Parenthood of Southeastern Pa. v. Casey (S Ct., 1992); Lawrence v. Texas (S Ct., 2003); Jonson v. Greaves (KB, 1765); Entick v. Carrington and Three Other King's Messengers (KB, 1765); et al.). Consequently, by common law within the U.S., the power to issue, withdraw, change, reissue or entirely omit a birth certificate is entirely at the discretion of the individual described by that birth certificate. This individual power clearly remains wherever and to whatever extent legislatively enacted laws, pursuant to case law, have not abrogated. However, it is this history of determination of worthiness for inheritance of a noble title that leaves, to this day, a most profound social shaming in being deemed an 'illegitimate' or 'bastard' child.
In time, as churches gained power relative to the aristocracy, and influence over that aristocracy, blessings from the church for potential heirs came to be sought by the nobility. Church records of these blessing may have become the first iterations of birth certificates to resemble the modern form of them. Gradually, as church power continued to grow and England became a religious state, these church birth and baptism records evolved into the status of, and then eventually were issued by, the government. Still, to this day, certificates of baptism by a church or mission retain the same weight of common law and documentation of birth as a government issued birth certificate, and the statutes of many jurisdictions enumerate that equity of weight in various forms and parts. In time, too, issuance of such certifications spread to commoners, first as a novelty practice as is still routinely issued by hospitals (note that if issued clerically, as may occur at a religious hospital, such certificate may also bear the same legal weight as can be given certificates of baptism).
Eventually, the idea emerged that widespread, consistent issuance of birth certificates could aid governments in estimating the number of individuals that might be available to be conscripted into military service for the conduct of wars, as well as might be subject to direct taxation. Here again, the interest was in documenting putatively masculine individuals for potential conscription, and little concern was held for the documentation of anyone who was other than male. In time, then, efforts began to apply the concept of birth certificates more and more broadly in society, beyond the nobility; and the evolution of how birth certificates have been used (and misused) may be the quintessential example, spanning scores of centuries, of the phenomenon often referred to as "mission creep".
Without a system of nobility, and having a secular government by design, the optional nature of birth certificates became universal in the U.S. after the American Revolution. Indeed, issuance of "birth certificates" at birth, in the fashion that we understand them today, was irregular and even rare within the U.S. until the late-Twentieth Century, spearheaded by efforts of the U.S. Department of Public Health that were initiated in the McCarthyist wake of World War II. Thus, the first generation in this country to be issued state birth certificates at birth with any hint of regularity, the Baby Boom Generation, are only now recently retired or nearing retirement, and state-issued birth certificates remain an extremely novel and legally/Constitutionally tenuous practice. Certainly such practice must conform to the Constitution and must not impair the rights of individuals to be known exclusively by any chosen identity "as if held from birth", even where any statutes have attempted (perhaps illegally and unconstitutionally) to infringe upon the common law rights of individuals to directly dictate (as a self-determined individual free of the dictates of nobility) the contents of such birth certificates at will. (Marbury v. Madison (S Ct., 1803); Christianson v. King County (S Ct., 1915); Harman v. Forsenius (S Ct., 1965); Department of Justice v. Reporters Committee for Freedom of the Press (S Ct., 1989); Planned Parenthood of Southeastern Pa. v. Casey (S Ct., 1992); Lawrence v. Texas (S Ct., 2003); et al.; Jonson v. Greaves (KB, 1765); Entick v. Carrington and Three Other King's Messengers (KB, 1765); et al.). That is, even where statutes may have attempted to authorize state regulation of birth certificate content and exclude the traditional direct dictation of it by individuals, the state must still conform such content to the identity information chosen at will by an individual to comply with the second legal power over such content held by individuals, which is the Constitutionally protected right of individuals to be known exclusively by any identity that may be chosen at will and "as if held from birth".
One fun fact of law, very quirky (to our modern thinking), result of this history is that, to this day, unless an original-issue birth certificate enumerates that a child was born a male child, the child is considered "other than male" at law. Eugenicist ideals (here predating even the coining of the term "eugenics") for the concept of "biological determinism" further held that to be biologically male, a putative male must be fully biologically able to sire (impregnate a woman with) a child. Any reproductive deficiency whatsoever that prevented a putative male from that capacity rendered the individual less than fully male, legally "other than male" – unable to carry on the noble family lineage. Indeed, with patriarchal ideals at their peak, to successfully sire only female children threatened the putative male's standing as such. This is why, to this day, no epithets are more profoundly insulting and damning for a putative male than feminizing epithets. Remember: The origin of the birth certificate was to ensure the ongoing lineage of given noble titles. Consequently, an infertile, or incapable putative male who might be unable in any way to carry out this duty to reproduce and provide their own heir were consequently unfit as heirs themselves, and swept into the category of "other than male". It was thusly that men came to be profoundly invested in blaming women as "barren" to explain their failure to produce an heir, regardless of the biological facts involved. To this day, it is profoundly damning to a woman to be identified as "barren". Since the U.S. eliminated the system of nobility, that means that in the U.S., all birth certificates that don't document "male" are lumped together, at law, as "other than male". Thus, birth certificates listing "female" are legally indistinguishable, in regards to gender, from any birth certificate lacking a gender designation or the complete lack of a birth certificate entirely, and are superfluous. This legal standard continues to apply in the U.S. However, because identity is at law is wholly self-recognized and self-determined, the birth record determining gender or any other aspect of identity is merely a historical footnote of its best guess at birth and predating the individual's capacity to make and express those self-determinations. [See Overview of Identity.] Although this legal fun fact appears to be reasonably well known to the modern U.S. legal profession, it receives little attention as it may not be very significant given the apparent overall Constitutional and modern legal irrelevance of the information to which it applies (gender). Since identity is, in purest form, a sense of self, and its appropriate representation can ONLY be self-determined and self-selected, we know that in practice and at law, the gender identity spectrum involves innumerable variations and potential categorizations. [See Overview of Identity.] At law, the effective result is that the requirement for proving oneself to society as male has been obviated and replaced with the less burdensome requirement that one need only prove oneself male to oneself. Sociologically and psychologically, however, this burden to prove oneself masculine to society remains apparent in schoolyards and sports arenas across the country and around the Westernized globe. Notably, U.S. military regulations through much of the latter half of the 20th century were often based upon, or at least interpreted to convey, these eugenicist ideals for biological determinism, and any slight deficiency of reproductive capacity was cause for discharge (medically unfit for service). In practice, these regulations appeared to be largely unenforced upon most servicepersons with minor 'deficiencies', unless they were deemed to be 'transgendered', at which point the same deficiencies overlooked for most members were used to discharge the so-called 'transgendered' members. [Also see the Case Study: DSM V page.] Note that birth certificates without gender designation often, historically, happened in regards to children born with Congenital Variations of Sexual Development (CVSD), or in any case where the child was not putatively a male. [For more on CVSD, see the Case Study: DSM V page.] Note also that many children born with Congenital Variations of Sexual Development (CVSD) subsequent to the rise of McCarthyist fascism were arbitrarily designated "male" or "female" at birth, despite their obvious clinical ambiguities, and often were surgically altered or mutilated shortly after birth in an attempt to achieve conformance to that arbitrary designation. This is a historical anomaly, whereas throughout most of history indeterminable gender at birth was widely recognized and accepted, and the practice of such arbitrary designation was not supported at law (in other words, a falsification of the record), or necessitated at birth due to wide recognition that such determination could not be finalized so early in life. Indeed, it wasn't until 1999 that the Social Security Administration deleted notation on application forms for Social Security Cards that providing any gender information was entirely optional and that the field could be left blank. Throughout the history of the Social Security Administration, until 1999, where those applications solicited gender, the application forms made clear that providing that medical information was completely optional and could be omitted. It is unknown what new Public Law went into effect in 1999 that is purported by the Social Security Administration to have mandated this new intrusion into the privacies of individuals, and any such data recorded prior to 1999 can reasonably be presumed inaccurate and/or unsubstantiated. The new post-1999 forms also do not accommodate other intermediate gender designations, and so data records subsequent to 1999 can be reasonably presumed to be falsified routinely regarding any individuals with any Congenital Variations of Sexual Development, similar to many post-McCarthysist birth certificates. The return of gender equality at law in the latter Twentieth Century, and equality among heirs regardless of the order of their birth, in inheritance, rendered gender designation and recording of dates of birth on birth certificates legally moot, relegating that information to the realm of personal and private, protected medical information. Although the case remains that only male gender designation on a birth certificate confers legal status as a male, and all others are "other than male", the designation no longer bears upon inheritance, and so it's presence, and the record of the date of birth, on such certificates of lineage is superfluous and not supported by law. In that venue, such information has become an unnecessary intrusion into the private sphere of individuals. It may be that the very existence of birth certificates is superfluous and moot at law. (Olmstead v. U.S. (S Ct., 1928, Brandeis dissenting opinion later asserted and ratified, by: Griswold v Connecticut (S Ct., 1965); Miranda v Arizona (S Ct., 1966); US v Katz (S Ct., 1967); Department of Justice v. Reporters Committee for Freedom of the Press (S Ct., 1989); Hill v Colorado (S Ct., 2000); et al.)). A final note about age: The old adage, "you never ask a woman how old she is!", is custom stretching back through ancient history, and a matter of common law. The custom is related to the evolution of birth certificates and applicable to all who were 'other than male heir to noble title'. Indeed, at common law in the U.S., it applies to all who are 'other than male'. Moreover, since age has become moot even for males, given the equity of inheritance right among heirs regardless of birth order, it is likely just as applicable to those who do identify as 'male'.
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