A federal appeals court has upheld Tennessee’s policy that prohibits individuals from changing the sex designation on their birth certificates. The court found that this restriction does not infringe on constitutional rights and that the state has a valid interest in keeping vital records accurate and consistent.
The Sixth U.S. Circuit Court of Appeals ruled 2–1 on July 12 to affirm a district court’s decision to uphold Tennessee’s policy of not allowing amendments to the sex listed on birth certificates based on gender identity.
“There is no fundamental right to a birth certificate recording gender identity instead of biological sex,” Judge Jeffrey Sutton wrote for the majority.
The plaintiffs, transgender individuals represented by Lambda Legal, first filed their lawsuit in 2019. They argued that the policy infringes on their rights under the 14th Amendment’s equal protection and due process clauses, contending that the birth certificate law discriminates against them based on their transgender status.
The plaintiffs also argued that requiring transgender individuals to list a sex on their birth certificates that does not match their gender identity infringes on their First Amendment right to free speech. They further contended that the policy is not narrowly tailored to address any compelling government interest.
They requested that the court block the enforcement of the policy and issue an injunction that would establish a procedure allowing changes to the sex designation on birth certificates based on an individual’s self-reported gender identity.
In June 2023, the U.S. District Court for the Middle District of Tennessee ruled against the plaintiffs. The court’s memorandum opinion stated that the policy does not breach the equal protection clause, as it applies equally to all Tennesseans by requiring proof of an error to amend a birth certificate.
The court also dismissed the due process claim, ruling that there is no fundamental right to a birth certificate that reflects gender identity instead of biological sex.
Additionally, the court rejected the plaintiffs’ First Amendment argument, stating that the sex designation on a birth certificate does not represent the plaintiffs’ speech and does not constitute “unconstitutionally compelled speech.”
Lambda Legal appealed the district court decision in October 2023 to the Sixth Circuit, which heard oral arguments in May, leading to its July 12 ruling that upholds the Tennessee law.
In rejecting the appeal, the Sixth Circuit argued that the policy was not discriminatory and that the plaintiffs did not demonstrate that Tennessee’s long-standing policy, in place for over 50 years, was established with animosity toward transgender individuals.
“That policy has been around for decades, and it’s the rare new law that retroactively establishes animus for a past law,” Judge Sutton wrote, adding that the law “long predates medical diagnoses of gender dysphoria.”
The court also found that the plaintiffs did not have a substantive due process right to amend their birth certificates to reflect their gender identity, as such a right is not rooted in the nation’s history and tradition.
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