Transgender people in Tennessee want state’s refusal to amend birth certificates declared unconstitutional

NASHVILLE, Tenn. (AP) — A federal appeals court heard arguments Thursday over a decades-old Tennessee policy that doesn’t allow transgender people to change the gender designation on their birth certificate.

The lawsuit was first filed in federal court in Nashville in 2019 by transgender Tennesseans who say Tennessee’s ban serves no legitimate government interest because it subjects transgender people to discrimination, harassment and even to violence when they have to produce a birth certificate for identification that conflicts with their gender identity. They say this policy is unconstitutional.

Last year, a federal judge threw out the case, ruling that while there are different definitions of “sex,” the term has a very narrow and specific meaning for the purposes of birth certificates in Tennessee: “external genitalia at the time of birth.

Attorney Omar Gonzalez-Pagan of Lambda Legal argued the transgender plaintiffs’ case Thursday before a three-judge panel of the 6th U.S. Circuit Court of Appeals.

Birth certificates “are not mere records of facts or historical observations,” he said. “Birth certificates are essential and fundamental identity documents. » And in the case of transgender people, these identity documents are incorrect, he argued. He noted that Tennessee allows changes to birth records in cases where the gender is listed as “unknown” at the time of birth.

Proposing a hypothesis, the judge Jeffrey Sutton asked whether it would be constitutional for a state to allow gender changes on a driver’s license but not on a birth certificate since the license could instead be used for identification purposes.

Gonzalez-Pagan said there are cases in which birth certificates are required for identification, such as obtaining a passport.

Sutton also questioned whether self-identification as transgender should be the only thing needed to change a birth certificate.

“States are all over the place on how they deal with this,” he noted. “Some will ask for proof of gender reassignment. Others will ask for proof of treatment, others just a doctor’s note, and still others a self-designation.”

Gonzalez-Pagan did not respond directly at first, but after being pressed by the judge, he said self-identification is what should be required.

The plaintiffs — four transgender women born in Tennessee — argue in court that sex is properly determined not by external genitalia but by gender identity, which they define in their brief as “the fundamental internal sense of a person of his own kind.” However, they are not asking the appeals court to determine what sex is, but rather to send the case back to U.S. District Judge Eli Richardson ruling that his dismissal of the case without a trial was improper.

Associate Solicitor General Matt Rice, representing 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 people by simply maintaining a record of a person’s sex based on external genitalia at birth.”

Additionally, he declared that gender designation was protected government speech. The transgender plaintiffs aren’t actually claiming they’re being treated differently than others, Rice said, “they just want us to send a different message.”

Sutton asked about a separate state court case in which a transgender woman sued the Tennessee Department of Safety and Homeland Security last week after authorities refused to change the gender on her license To drive. Tennessee previously allowed these changes, but the Legislature last year passed a law defining “sex” throughout Tennessee code as a person’s “unchangeable biological sex, as determined by anatomy and genetics existing at the time of birth.

It made sense, Sutton said, that the birth certificate was a record 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 had no animus against transgender people,” Sutton said.

Rice argued that the legislature’s actions in 2023 cannot demonstrate that the birth certificate policy, in effect for more than half a century, was adopted with animosity.

Tennessee is currently one of five states that does not allow transgender citizens 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 evolving across the United States. States.

Just this week, transgender, intersex and non-binary residents of Arkansas sued the state over its decision to no longer allow the “X” in place of a man or woman on driver’s licenses. driving or state-issued identification cards.