Sex Designation Amendments: The Rights of Transgender Individuals to Amend Their Birth Certificates

by Erin Gray, Associate Member, University of Cincinnati Law Review Vol. 93

I. Introduction

State policies and laws allowing transgender individuals to amend their sex designation on their birth certificates vary widely across the country.[1] Fifteen states allow amendments without medical treatment or surgery.[2] Twelve states allow amendments with evidence of sex change surgery.[3] Fifteen states allow amendments with evidence of treatment from a medical professional.[4] Lastly, six states do not permit amendments to sex designation on birth certificates at all.[5] In June of 2024, the Tenth Circuit found that plaintiffs successfully argued that an Oklahoma policy prohibiting amendments to sex designation on birth certificates was unconstitutional under the Equal Protection Clause.[6] However, in July of 2024, the Sixth Circuit held that a similar Tennessee law was constitutional under the Equal Protection Clause and found that plaintiffs failed to bring a successful Equal Protection claim.[7] The two contrasting opinions created a circuit split.[8]

This article explores the reasoning behind each circuit’s decision and how the Supreme Court may resolve these cases. Part II examines the case law the Supreme Court may rely on. Part III argues that the Supreme Court should reverse the Sixth Circuit’s holding and find that the Tenth Circuit applied the law correctly. Lastly, Part IV summarizes those conclusions and considers the future implications of the Supreme Court’s potential ruling.

II. Background

The Equal Protection Clause of the Fourteenth Amendment states, “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”[9] In Engquist v. Oregon Department of Agriculture, the Supreme Court held that to succeed on an Equal Protection violation, the policy must purposefully discriminate against a group of people because of their membership in a particular protected class.[10] In Washington v. Davis, the Court clarified that purposeful discrimination can be inferred from the “totality of the relevant facts.”[11] This analysis includes whether a policy has a disparate impact on one group.[12] Additionally, in Village of Arlington Heights v. Metro Housing Development, the Court clarified that ” . . . official action will not be held unconstitutional solely because it results in a racially disproportionate impact.”[13] The Court also expanded the “totality of the relevant facts” to include the “historical background of the decision,” the “specific sequence of events leading up to the challenged decision,” and “[d]epartures from the normal procedural sequence.”[14] In proving purposeful discrimination, plaintiffs must allege that “a particular course of action [was chosen] at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”[15]

Depending on what class of people the policy discriminates against, the government must show varying levels of justification.[16] In United States v. Virginia, the Court held that when a policy discriminates based on gender, the government must have “an exceedingly persuasive justification.”[17] In L.W. v. Skrmetti, the Sixth Circuit refused to recognize transgender status as a suspect class that would require a heightened justification.[18] However, in Bostock v. Clayton County, the Court held “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”[19]

A. Tenth Circuit

In Fowler v. Stitt, the Tenth Circuit held that plaintiffs successfully alleged an Equal Protection violation by finding a policy that prohibited amendments to sex on birth certificates as a violation of the Equal Protection Clause.[20] From 2007 until 2021, transgender Oklahomans could amend the sex designation on their birth certificates. [21] Plaintiffs alleged that the state prohibited sex amendments in 2021 because of the Oklahoma State Department of Health’s settlement with a transgender person.[22] The settlement provided the individual with “an amended Oklahoma birth certificate with a gender-neutral designation, consistent with their gender identity.”[23] The Governor responded to the settlement by saying, “I believe that people are created by God to be male or female. Period.”[24] That, “[t]here is no such thing as non-binary sex, and I wholeheartedly condemn the OSDH court settlement that was entered into by rogue activities who acted without receiving proper approval or oversight.”[25] He then promised to “tak[e] whatever action necessary to protect Oklahoma values.”[26]

Eventually, the Governor signed a bill into law that states, “[b]eginning on the effective date of this act, the biological sex designation on a certificate of birth amended under this section shall be either male or female and shall not be nonbinary or any symbol representing a nonbinary designation including but not limited to the letter ‘X.’”[27] The Tenth Circuit found a reasonable inference of purposeful discrimination due to the disparate impact the policy had on transgender people. [28] Before the implementation of the policy, both transgender and cisgender people had access to birth certificates that accurately reflected their gender. [29] However, now, only transgender individuals have birth certificates that inaccurately reflect their gender identity.[30] Therefore, the policy impacts only transgender individuals creating a disparate impact.[31]

Additionally, the events leading up to the policy are sufficient to show discriminatory intent.[32] The sequence of events demonstrates that the policy was implemented “at least in part because of the effect it would have on transgender people.”[33] The statements the governor made right before issuing the executive order reflect his disfavor of people amending sex designation on their birth certificates.[34]

Further, the Tenth Circuit argued that the Bostock precedent applied here.[35] The Tenth Circuit found no reason that would prevent the “common sense reasoning” about the relationship between sex and transgender status.[36] Applying Bostock, the policy intentionally discriminates against the plaintiffs based on their sex because if the plaintiffs’ sex were different, the policy would not deny the plaintiffs a birth certificate that reflects their gender identities.[37] Therefore, “the [p]olicy does intentionally treat them differently because of their sex assigned at birth.”[38]

However, the Tenth Circuit declined to answer whether transgender status is a quasi-suspect class because the policy discriminates based on sex.[39] Since sex-based discrimination requires heightened scrutiny, heightened scrutiny would apply to the facts regardless.[40] Additionally, the Tenth Circuit concluded that the policy failed the rational basis test and could not survive heightened scrutiny.[41] The state argued an interest in maintaining birth statistics as a justification for the policy.[42] The Tenth Circuit assumed this was a legitimate state interest, however the justification was not rationally related to this interest.[43] Further, if birth certificates were amended, the government would still have access to the original birth certificates for statistics.[44] The state further argues that the policy protects women’s interest in sports.[45] However, the Tenth Circuit was unconvinced because Oklahoma bans students assigned male at birth from competing on girl’s teams.[46] Parents must sign an affidavit acknowledging the biological sex assigned at birth.[47] Thus, birth certificates have nothing to do with protecting women’s sports.[48] As a result, the Tenth Circuit held the policy as unconstitutional under the Equal Protection Clause.[49]

B. Sixth Circuit

In Gore v. Lee, the Sixth Circuit found a similar birth certificate policy to be constitutional under the Equal Protection Clause.[50] Tennessee mandates that for each newborn a birth certificate must be issued.[51] The name of the parents, date and time of birth, the city of birth, and the child’s biological sex are recorded on the birth certificate.[52] If a factual error exists on the birth certificate, it may be amended.[53] However, a change in sex is not a factual error that would allow a birth certificate to be amended.[54]

The Sixth Circuit found when individuals try to amend their birth certificates, the law does not prefer one sex over the other.[55] The sex of an individual is not inquired into on the amendment application.[56] As a result, the Sixth Circuit concluded that the law treats men and women alike because the policy fails to distinguish between men and women.[57] Further, the Sixth Circuit distinguished Bostock from this case, acknowledging that in Bostock, the issue pertained to a Title VII violation and not an Equal Protection issue.[58] As such, the Sixth Circuit declined to apply the Bostock reasoning to the facts of the case.[59]

The Plaintiffs also claimed that the law discriminates based on transgender status and as such, a heightened form of scrutiny must apply to the law.[60] Relying on Skrmetti, the Sixth Circuit emphasized that the Supreme Court refused to recognize transgender status as a suspect class.[61] Accordingly, the Sixth Circuit analyzed the law under rational basis review.[62] Ultimately, the Sixth Circuit upheld the law under rational basis review finding many legitimate explainations behind the law.[63]

III. Discussion

A. The Sixth Circuit Erred in Deciding that the Policy did not Discriminate Based on Sex.

The Sixth Circuit incorrectly concluded that Tennessee’s policy does not discriminate based on sex because the court failed to apply the Supreme Court’s reasoning in Bostock. The court correctly identified that the facts in Bostock are not analogous to the facts in this case.[64] In Bostock, the Supreme Court held that firing employees based on their sexuality or transgender status violated Title VII.[65] Whereas here, the challenge is not brought under Title VII, but rather under the Equal Protection Clause.[66] As a result of this, the Sixth Circuit emphasized that this difference precluded any reasoning from Bostock to apply in the Equal Protection context.[67] However, the Sixth Circuit does not need to import the Title VII standard applied in Bostock. Instead, the Sixth Circuit should have adopted the transgender and sex discrimination reasoning, which is directly applicable in this case. As the Tenth Circuit stated, “the Supreme Court did not once state that its analysis concerning the relationship between transgender status and sex was specific to Title VII cases—and it could have done so without unduly encumbering the opinion.”[68] As such, the Sixth Circuit should have adopted Bostock‘s reasoning.

 In Bostock, the Supreme Court reasoned that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”[69] To further illustrate this point, the Tenth Circuit highlighted the Supreme Court’s examples, stating:

If the employer fires only the transgender woman, the employer has “intentionally penalize[d]” her “for traits or actions that it tolerates in an employee identified as female at birth.” As the Court explained, “if changing the employee’s sex would have yielded a different choice by the employer,” then sex-based discrimination has occurred.[70]

Therefore, the Sixth Circuit should have acknowledged that discrimination based on transgender status is discrimination based on sex, because transgender status is “inextricably bound up with sex.”[71]

Applying this reasoning to the Equal Protection context, the Sixth Circuit should have concluded that Tennessee’s policy discriminates based on sex. Instead, the Sixth Circuit concluded that “Tennessee’s birth-certificate policy treats like alike.”[72] However, only transgender people are impacted by the policy. The policy has no impact on cisgender people because they do not need to amend the sex on their birth certificate to reflect their gender identity. Since discrimination based on transgender status is also discrimination based on sex, the policy does discriminate based on sex because of the disparate impact on transgender people. While this disparate impact could indicate discriminatory intent, the Supreme Court has held that disparate impact alone is not enough to sustain an Equal Protection claim.[73] Therefore, the Sixth Circuit must examine the “totality of relevant facts” to see if the policy reflects a discriminatory intent.[74]

B. The Sixth Circuit Incorrectly Found that there was no Evidence of Intent to Discriminate.

The Sixth Circuit examined the transcript of a Tennessee House of Representatives floor hearing to determine if the policy presented any discriminatory intent.[75] The Sixth Circuit found that the policy intended to ensure that records accurately capture what naturally happened at birth.[76] While the transcript does state this idea, further review of the transcript reveals that the policy was intended to impact transgender individuals. Originally, the policy allowed amendments for sex designations on birth certificates as a result of sex change surgeries.[77] However, a House Representative proposed an amendment to prohibit changes to sex designations because of the “controversy” of allowing transgender people to amend their birth certificates.[78] Therefore, it follows that officials were worried about the appearance and stigma of affirming the ability of transgender people to change their sex designation. As a result of this, the House of Representatives amended the policy, in part, because of its impact on transgender individuals.[79] Thus, the Sixth Circuit should have found discriminatory intent behind the policy.

Overall, the policy has a disparate impact on transgender people and therefore discriminates based on sex. The legislative history behind the policy supports the finding of purposeful discrimination. As a result, the Plaintiffs successfully argued the prerequisites for an Equal Protection claim.

C. The Policy Fails Heightened Scrutiny.

Since the policy discriminates based on sex, the policy must have “an exceedingly persuasive justification” to be constitutional.[80] Several justifications the Sixth Circuit cited support the policy. First, “[t]racking the biological sex of infants at birth ‘aid[s] the public health of the state.’”[81] Second, the information assists in, “preparing and publishing reports of vital statistics,” and those reports help state and federal officials to track important medical and sociological trends.”[82] Lastly, “Tennessee likewise has an interest in maintaining a consistent, historical, and biologically based definition of sex.”[83] None of these reasons surpass heightened scrutiny because each of these objectives can be achieved by maintaining a copy of the original birth certificate. Plaintiffs do not challenge Tennessee’s possession of the original birth certificates.[84] Instead, Plaintiffs simply want to obtain amended birth certificates for their own personal use.[85] Thus, the policy does not survive heightened scrutiny. As a result, the policy is unconstitutional under the Equal Protection Clause.

IV. Conclusion

In conclusion, the Sixth Circuit should have held that the Plaintiffs presented a successful violation of the Equal Protection Clause because the policy purposefully discriminates based on sex towards transgender people. Additionally, the policy fails heightened scrutiny and is thus unconstitutional. The Supreme Court granted certiorari of Skrmetti and could address whether transgender status directly triggers heightened scrutiny under the Equal Protection Clause. If the Court determines that transgender status is a suspect class triggering heightened scrutiny, that decision would be a historic precedent that could impact many state laws across the country.

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[1] Gore v. Lee, 107 F.4th 548, 552 (6th Cir. 2024).

[2] Id. at 553.

[3] Id.

[4] Id.

[5] Id.

[6] Fowler v. Stitt, 104 F.4th 770, 797 (10th Cir. 2024).

[7] Gore, 107 F.4th at 566.

[8] Id.

[9] U.S. Const. amend. XIV, § 1.

[10] Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 594 (2008).

[11] Washington v. Davis, 426 U.S. 229, 242 (1976).

[12] Id.

[13] Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-65 (1977).

[14] Id. at 267.

[15] Pers. Adm’r of Mass. V. Feeney, 442 U.S. 256, 279 (1979).

[16] City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440-42 (1985).

[17] United States v. Virginia, 518 U.S. 515, 531 (1996).

[18] L.W. by and through Williams v. Skrmetti, 83 F.4th 460, 486 (2023).

[19] 590 U.S. 644, 660 (2020).

[20] 104 F.4th 770, 797 (10th Cir. 2024).

[21] Id. at 777.

[22] Id. at 777.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id. at 777-78.

[28] Id. at 786.

[29] Id.

[30] Id.

[31] Id.

[32] Id. at 787.

[33] Id. (quoting Pers. Adm’r of Mass. V. Feeney, 442 U.S. 256, 279 (1979)).

[34] Id.

[35] Id. at 789.

[36] Id. at 790.

[37] Id. at 789.

[38] Id.

[39] Id. at 794.

[40] Id.

[41] Id.

[42] Id. at 795.

[43] Id.

[44] Id.

[45] Id. at 796.

[46] Id.

[47] Id.

[48] Id.

[49] Id. at 797.

[50] 107 F.4th 548, 566 (6th Cir. 2024).

[51] Id. at 553.

[52] Id.

[53] Id.

[54] Id.

[55] Id. at 556.

[56] Id.

[57] Id. at 555-56.

[58] Id. at 557.

[59] Id.

[60] Id. at 559.

[61] Id. at 560.

[62] Id. at 563.

[63] Id. 564.

[64] Id. at 557 (citing Bostock v. Clayton Cnty., 590 U.S. 644, 656–57 (2020).

[65] 590 U.S. 644, 660 (2020).

[66] Gore, 107 F.4th at 557.

[67] Id.

[68] Fowler v. Stitt, 104 F.4th 770, 790 (10th Cir. 2024).

[69] Bostock v. Clayton Cnty., 590 U.S. 644, 656–57 (2020).

[70] Fowler, 104 F.4^th at 789 (quoting Bostock v. Clayton Cnty., 590 U.S. 644, 656–57 (2020)).

[71] Bostock, 590 U.S. at 656–57.

[72] Gore, 107 F.4th at 555.

[73] Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267 (1977).

[74] Washington v. Davis, 426 U.S. 229, 242 (1976).

[75] Transcript of Floor Proceedings for Tenn. H.B. 425, Gore v. Lee 107 F.4th 548 (6th Cir. 2024) (No. 62-14).

[76] Gore, 107 F.4th at 562-63.

[77] Id.

[78] Id.

[79] Pers. Adm’r of Mass. V. Feeney, 442 U.S. 256, 279 (1979).

[80] United States v. Virginia, 518 U.S. 515, 531 (1996).

[81] Gore, 107 F.4th at 564 (quoting Tenn. Code Ann. § 68-3- 201).

[82] Id. (quoting Tenn. Code Ann. § 68-3-104(a)(3)).

[83] Id.

[84] Id. at 556.

[85] Id.

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