Transgender Tennesseans want state’s refusal to amend birth certificates declared unconstitutional
NASHVILLE, Tenn. — A federal appeals court heard arguments Thursday over a decades-old policy in Tennessee that doesn’t allow transgender people to change the gender marker on their birth certificates.
The lawsuit was first filed in 2019 in federal court in Nashville by transgender Tennesseans who say Tennessee’s ban serves no legitimate government interest while subjecting transgender people to discrimination, harassment and even violence when they are required to produce a birth certificate for identification that conflicts with their identity. gender identity. They say the policy is unconstitutional.
Last year, a federal judge dismissed the case, ruling that while several definitions of “sex” exist, the term has a very limited and specific meaning for the purpose of birth certificates in Tennessee: “external genitalia at the time of birth’.
Attorney Omar Gonzalez-Pagan argued the transgender plaintiffs’ case before a three-judge panel of the Sixth U.S. Circuit Court of Appeals on Thursday at Lambda Legal.
Birth certificates “are not just a record of historical facts or observations,” he said. “Birth certificates are crucial and fundamental identity documents.” And in the case of transgender people, these IDs are incorrect, he argued. He noted that Tennessee allows changes to birth certificates in cases where the gender is listed as “unknown” at the time of birth.
Judge Jeffrey Sutton posed a hypothetical question, wondering whether it would be constitutional for a state to allow changes to gender on a driver’s license but not on a birth certificate, since the driver’s license could be used for identification instead.
Gonzalez-Pagan said there are cases where birth certificates are required for identification, such as obtaining a passport.
Sutton also asked whether self-identification as transgender should be the only thing required to amend a birth certificate.
“The states are all over the map on how they’re handling this,” he noted. “Some will ask for proof of gender reassignment. Others will ask for proof of treatment, others for just a doctor’s note, and still others for a self-designation.”
Gonzalez-Pagan initially did not respond directly, but after being pressured by the judge, he said self-identification should be required.
The plaintiffs – four transgender women born in Tennessee – argue in lawsuits that sex is not properly determined by external genitalia, but by gender identity, which they define in their brief as “a person’s core sense of their own gender.” However, they are not asking the appeals court to define what sex is, but rather to send the case back to U.S. District Judge Eli Richardson, who rules that his dismissal of the case without a trial was improper.
Associate Solicitor General Matt Rice, who represented the state of Tennessee, argued that Richardson ruled correctly.
“The Constitution does not require states to amend their birth certificates to include a person’s gender identity,” he said. “Tennessee does not discriminate against transgender individuals in any way by merely tracking a person’s gender based on their external genitalia at birth.”
Additionally, he said the gender designation is protected government speech. The transgender plaintiffs aren’t really claiming they’re being treated differently than anyone else, Rice said, “they just want us to send a different message.”
Sutton asked about a separate case in state court in which a transgender woman sued the Tennessee Department of Safety and Homeland Security last week after officials refused to change the gender on her driver’s license. Tennessee had previously allowed these changes, but the Legislature last year passed a law that defines “sex” throughout the Tennessee code as the “immutable biological sex of a person, as determined by the anatomy and genetics existing at the time of birth’.
It made sense, Sutton said, that the birth certificate was proof of sex at birth, while the driver’s license was a valid form of identification.
“It really seemed to lower the stakes, and it also suggested that the state did not harbor any animosity against transgender people,” Sutton said.
Rice argued that the Legislature’s actions in 2023 cannot demonstrate that the birth certificate policy, which had been in place for more than half a century, was passed with animus.
Tennessee is currently one of five states that do not allow transgender people to change the gender on their birth certificate, according to data collected by the nonprofit Movement Advancement Project, but many laws and policies regarding identification documents for transgender people are in movement. States.
Just this week, transgender, intersex and non-binary Arkansas residents sued the state over its decision to no longer allow “X” instead of male or female on state-issued driver’s licenses or identification cards.