A federal appeals court on June 18 revived a lawsuit challenging Oklahoma’s ban on changing the sex listed on birth certificates.
A panel of the U.S. Court of Appeals for the Tenth Circuit reinstated a lawsuit challenging Oklahoma’s prohibition on changing the sex listed on birth certificates. The prohibition, enacted by an executive order from Governor Kevin Stitt, “purposefully discriminates on the basis of transgender status and sex,” the panel ruled, overturning the case’s dismissal by a lower court in 2023.
U.S. Circuit Judge Carolyn McHugh, writing for the panel, stated that since “cisgender people” have birth certificates that reflect their “gender identity” while transgender people do not, the policy has a disparate impact that “indicates discriminatory intent.”
Oklahoma officials argued that there was no disparate impact because no one, regardless of their identity, is allowed to amend the sex on their birth certificate.
Mr. Stitt, a Republican, said in 2021 he learned that the sex on birth certificates could be amended and issued an executive order to change it. “I believe that people are created by God to be male or female. Period,” he said.
The series of events shows the policy was implemented with a focus on transgender people, and state officials’ “inability to proffer a legitimate justification for the policy suggests it was motivated by animus towards transgender people,” Judge McHugh said.
The policy could still withstand scrutiny if officials demonstrated that it served a legitimate state interest. Oklahoma officials argued that the order helps maintain accurate vital statistics about births.
The panel assumed that is a legitimate state interest, but “it is not rationally related to the policy because even if transgender people amend the sex listed on their birth certificates, Oklahoma retains and has access to original birth certificates,” Judge McHugh wrote.
Officials also stated that they want to ensure all birth certificates accurately list a person’s sex. However, the panel noted that this position is undermined by the fact that the state allows people to amend the sex on their driver’s licenses.
Another argument, that the policy helps prevent biological males from competing in women’s sports, could be a legitimate interest. However, the ruling pointed out that Oklahoma’s ban on males participating in female sports is enforced through affidavits, not birth certificates. Judge McHugh noted that even if birth certificates were to play a role, the original certificates would remain available for review if the policy were to be overturned.
The lawsuit was filed in 2022 by three individuals who assert that their gender has changed and argue that their birth certificates should reflect this change. They claim violations of their rights under the Fourteenth Amendment, specifically equal protection and due process.
“The government’s policy discriminates against transgender people because it deprives them of access to birth certificates that match their gender identity, which others are afforded,” lawyers for the trio told the appeals court in a recent brief. “It infringes upon their right to privacy because one’s transgender status is highly personal and intimate information, as this court already has recognized.”
U.S. District Judge John Broomes threw out the case in 2023, concluding that the policy “did not impair the ability of transgender people to express their gender identity or compel them to speak any message.”
The Tenth Circuit panel overturned a portion of the ruling but upheld the part concerning the due process claim. Judge McHugh stated, “To assert a substantive due process claim, Plaintiffs needed to allege that their involuntary disclosures amount to state action. They failed to do so.”
Judge McHugh was joined by U.S. Circuit Judges Harris Hartz and Richard Federico in the decision.
In a partial dissent, Judge Hartz agreed that the policy discriminates against transgender people but disagreed that it discriminates based on sex.
“No one could say that the Policy intentionally discriminates against males, or that it intentionally discriminates against females,” he wrote. “The policy treats males and females (whether determined at birth or at present) identically. Which sex was intentionally discriminated against?”
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