(CN) — A federal appeals panel appeared receptive on Wednesday to arguments from a trio of transgender people challenging Oklahoma’s ban on amending birth certificates to reflect gender identity.
Republican Governor Kevin Stitt defined the ban in an executive order in 2021, after the Oklahoma State Department of Health created a process for people to designate as “non-binary” or change their sex on their birth certificate from male to female.
The executive order quickly drew a lawsuit from two transgender men and one transgender woman who argued Stitt’s policy is a reversal of the state’s prior practice, which had permitted such corrections for years. The plaintiffs argue the government’s actions violate equal protection, privacy, and liberty under the Equal Protection and Due Process Clauses of the U.S. Constitution. They also contend that forcing transgender people through their birth certificates to identify with a sex that conflicts with who they are violates their free speech rights under the First Amendment.
In June 2023, U.S. District Judge John W. Broomes, an appointee of President Donald Trump, granted the state’s motion to dismiss the case, finding the state’s refusal to change sex designations on birth certificates did not impair the ability of transgender people to express their gender identity or compel them to speak any message.
Broomes further disagreed with the plaintiffs' argument that governor's policy constituted speech by the state, rather than the individual, therefore making it not subject to the First Amendment. He also noted that the state continues to allow transgender people to get driver's licenses matching their gender identity, while neither the Supreme Court nor the 10th Circuit has recognized transgender status as a “protected class” for purposes of equal protection.
In their brief to the 10th Circuit Court of Appeals, the plaintiffs argued “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. It infringes upon their right to privacy because one’s transgender status is highly personal and intimate information."
"The district court therefore erred in applying rational basis review rather than heightened scrutiny, but it also failed to provide a convincing answer to a central question under any level of scrutiny: what, exactly, is the harm to others in allowing transgender people to correct their birth certificates?” they added.
The plaintiffs' attorney Peter Renn emphasized Wednesday that there is no harm for the public and anyone who chooses not to amend their birth certificate. Instead, he said, there is harm to the plaintiffs when they are essentially forced to disclose their transgender status through inconsistencies on official documents and in reality, it has resulted in the denial of services and harassment.
U.S. Circuit Court Judges Harris L. Hartz and Carolyn B. McHugh — appointees of Presidents George W. Bush and Barack Obama, respectively — asked Renn to clarify his arguments about equal protection, questioning his interpretation of the landmark legal case Bostock vs. Clayton County.
Renn said Stitt’s policy is a clear example of disparate treatment between classes, because those who wish to amend their birth certificates cannot use them for the same identification purposes as those who do not. He said Stitt’s executive order is an example of discriminatory intent because the preamble includes the governor’s opinion that “people are created by God to be male or female.”
On behalf of the state, attorney Audrey Weaver argued biological sex is not a meaningless label and the state has a legitimate interest in preserving the accuracy of its vital statistics. She also said the policy affects everyone equally because everyone has a biological sex assigned at birth.
McHugh noted the state maintains the original birth certificates, so the accuracy of vital statistics should not be affected by amendments. The judge also pointed out that a recent state law requiring high school and collegiate athletes to participate in sports as the sex they were assigned at birth requires not a birth certificate, but an affidavit.
“Your reasons and reality aren’t meshing,” McHugh told Weaver.
Participating in his first oral arguments as a member of the 10th Circuit, U.S. Circuit Judge Richard E.N. Federico, who was appointed in 2023 by President Joe Biden, suggested Stitt’s policy was irrational. If the policy was rational, he said, it would also discontinue the amendment of birth certificates for reasons including adoption, parentage or name changes.
McHugh asked for an explanation as to why Oklahomans are still allowed to change their sex designation on the drivers licenses.
Weaver explained that it makes “rational sense” for the state to treat other birth certificate amendments differently because the state “wants to reflect” name changes or parentage records. Drivers licenses are treated differently because they are renewable, are carried as daily identification and allow for different information and privileges.
The central question for the judges, Weaver said, is whether recording and declining to alter an individual's biological sex violates the Fourteenth Amendment or the Due Process Clause and whether the Constitution requires states to adopt this policy, which Oklahoma contends it does not.
The panel is expected to rule on the case in the coming weeks.
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