A federal appeals court on June 18 revived a lawsuit against Oklahoma’s prohibition on changing the sex listed on birth certificates.
U.S. Circuit Judge Carolyn McHugh, writing for the panel, said that because “cisgender people” still have birth certificates that reflect their “gender identity” but transgender people don’t, the policy has a disparate effect that “indicates discriminatory intent.”
Oklahoma officials had contended there was no disparate impact because nobody, regardless of their identity, can 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 that 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,” said Judge McHugh, who was nominated by President Barack Obama.
The policy could still pass scrutiny if officials showed it was related to a legitimate state interest. Oklahoma officials argued that the order helps them maintain accurate vital statistics about birth.
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 said they want to make sure all certificates list the correct sex of a person, but that position is undercut by the fact the state lets people amend the sex on their driver’s license, according to the panel.
The other argument, that the policy helps ensure that biological males do not compete in women’s sports, may be a legitimate interest, but the state ban on males’ competing in female sports is enforced through affidavits, not birth certificates, the ruling noted. If birth certificates did become involved, the original certificates would still be available for review even if the policy is abolished, Judge McHugh said.
The suit was brought in 2022 by three people who say their gender has changed and that the sex on their birth certificates should change accordingly, alleging violations of their 14th Amendment rights to 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, a President Donald Trump nominee, 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.”
While the 10th Circuit panel reversed part of that ruling, it upheld the part dealing with the due process claim. “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 said.
Judge McHugh was joined by U.S. Circuit Judges Harris Hartz and Richard Federico.
In a partial dissent, Judge Hartz said he agreed the policy discriminates against transgender people but not that it discriminates on the basis of 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?”
