A federal appeals court has upheld Tennessee’s policy of barring people from changing the sex designation on their birth certificates, arguing that the ban does not violate constitutional rights and that the state has a legitimate interest in maintaining accurate and consistent vital records.
“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 further argued that forcing transgender people through their birth certificates to identify with a sex that is inconsistent with their gender identity violates their free speech rights under the First Amendment. They also claimed that the policy was not narrowly tailored to serve any compelling governmental interest.
They asked the court to block enforcement of the policy and sought an affirmative injunction that would allow a procedure permitting changes to the sex designation on birth certificates based on self-reported gender identity.
The court also dismissed the due process claim, holding that there is no fundamental right to a birth certificate that reflects gender identity rather than biological sex. Further, the court rejected the plaintiffs’ First Amendment claim, arguing that the messaging associated with the sex designation on a birth certificate does not constitute the plaintiffs’ speech, nor does it amount to “unconstitutionally compelled speech.”
In dismissing the appeal, the Sixth Circuit argued that the policy was not discriminatory and that the plaintiffs failed to prove that Tennessee’s policy, which has been around for more than 50 years, was created out of animus for transgender people.
“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.
“The right to a birth certificate conforming to one’s gender identity is not ‘deeply rooted’ in our history and ‘implicit in the concept of ordered liberty,’” Judge Sutton wrote for the majority.
The appeals court also held that the birth certificate policy is related to legitimate state interests, such as maintaining accurate and consistent vital records.
“How, it’s worth asking, could a government keep uniform records of any sort if the disparate views of its citizens about shifting norms in society controlled the government’s choices of language and of what information to collect?” the judge wrote.
In a dissenting opinion, Judge Helene White sided with the plaintiffs.
“Forcing a transgender individual to use a birth certificate indicating sex assigned at birth causes others to question whether the individual is indeed the person stated on the birth certificate,” she wrote. “This inconsistency also invites harm and discrimination.”
A request for comment sent to Lambda Legal was not immediately returned. However, Omar Gonzalez-Pagan, an attorney with Lambda Legal representing the plaintiffs in the case, issued a statement in May, when the appeals court heard oral arguments in the case.
At the time, Mr. Gonzalez-Pagan called the Tennessee policy “archaic” and alleged that it not only discriminates against transgender people born in the state, “it also risks their safety and wellbeing by involuntarily disclosing their transgender status, exposing them to discrimination, harassment, and even violence.”
Tennessee Attorney General Jonathan Skrmetti issued a statement praising the appeals court decision.
“Whether someone can change the sex on their birth certificate is a matter for each state to decide,” Mr. Skrmetti said. “While other states have taken different approaches, for decades Tennessee has consistently recognized that a birth certificate records a biological fact of a child being male or female and has never addressed gender identity,” he said.
“We are grateful that the Court of Appeals agreed with the district court that any change in Tennessee’s policy can only come from the people of Tennessee.”
Tennessee is among a handful of states with policies that bar individuals from changing the sex designation on their birth certificates.
In their majority opinion, the appeals court judges wrote that changing that policy should be done by lawmakers as part of the legislative process and that it’s not something for the courts to determine.
