In a decision that has sparked concern and disappointment among the transgender community and their allies, the 6th Circuit U.S. Court of Appeals upheld a Tennessee policy prohibiting transgender individuals from changing the sex marker on their birth certificates. Many people consider this decision, which came down in a 2-1 decision on Friday, to be a step backward in the struggle for transgender rights and recognition.
The Court’s Rationale
Chief Judge Jeffrey Sutton, joined by Judge Amul Thapar, authored the majority opinion. The judges ruled that the policy is constitutional, arguing that “there is no fundamental right to a birth certificate recording gender identity instead of biological sex.” They described the policy as a “nondiscriminatory form of government speech embraced by some states about an undeniable historical fact.” This perspective aligns with Tennessee’s stance that maintaining birth certificates that reflect the sex assigned at birth protects the integrity and accuracy of vital records.
The majority opinion further suggested that the matter of changing sex markers on birth certificates should be left to state legislatures rather than the courts. Sutton wrote that allowing changes to the sex marker on birth certificates could lead to inconsistencies, with some certificates reflecting biological sex and others reflecting gender identity.
Dissenting View
Senior Judge Helene White presented a strong dissent, highlighting that Tennessee’s policy is an outlier, as at least 43 U.S. states or territories allow changes to the sex marker on birth certificates under varying circumstances. She pointed out the inconsistency in Tennessee’s policy, which permits individuals born with ambiguous genitalia to amend the sex marker on their certificates based on other characteristics post-birth.
“In so doing, the State denigrates those who do not conform to societal assumptions about what it means to be male or female, like transgender individuals, conveying that they are somehow less male or female because of the accidents of their birth — that no matter what, in the eyes of the State, their genitalia at birth alone determine their identities forevermore,” White wrote.
The Plaintiffs’ Struggle
The plaintiffs in this case, four transgender women born in Tennessee, have been fighting to change a 1977 law that forbids amendments to birth certificates after an individual completes sex-reassignment surgery. They argue that having a birth certificate inconsistent with their gender identity forces them to disclose their transgender status in various situations, such as job applications or when applying for a passport, which can lead to harassment or violence.
Omar Gonzalez-Pagan, senior counsel and healthcare strategist at Lambda Legal, which represents the plaintiffs, expressed deep disappointment with the ruling. “The discrimination that is being suffered by transgender people in present-day America is something that, frankly, is reprehensible and shameful,” Gonzalez-Pagan said. He emphasized the hope that this decision would galvanize efforts to ensure more inclusive and protective laws and policies.
Tennessee’s Stance
Tennessee Attorney General Jonathan Skrmetti praised the ruling, stating, “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. 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.”
The state’s position is that birth certificates are critical records that should reflect the sex assigned at birth to maintain consistency and accuracy for statistical and health services purposes.
Broader Implications
This ruling stands in contrast to decisions in other courts across the country. Policies similar to Tennessee’s have been found unconstitutional in every other court where they have been challenged, except in Tennessee and a district court in Oklahoma. This highlights a significant divide in how different states and courts view the rights of transgender individuals.
The plaintiffs and their legal team argue that Tennessee’s policy violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Judge White, in her dissent, agreed, stating, “Unlike the majority, I conclude that the Policy effectively discloses transgender status and thus implicates fundamental interests in bodily integrity and private sexual matters.”
Following the ruling, Lambda Legal and the plaintiffs are considering their next steps, which could include appealing to the Supreme Court. Gonzalez-Pagan stressed that no one is harmed by allowing transgender individuals to have birth certificates that reflect their true gender identity, and that such a change is crucial for their safety and dignity.
For transgender individuals in Tennessee and across the United States, this ruling is a painful reminder of the ongoing challenges in achieving full recognition and rights. It underscores the importance of continued advocacy and legal battles to protect and advance the rights of transgender people.
The Bottom Line
To our readers, particularly transgender individuals and their families, allies, and supporters, this decision may feel like a setback, but it also serves as a call to action. The fight for equality and recognition is far from over, and it is through collective efforts and unwavering support that progress will be made.
Transvitae.com remains committed to providing a platform for transgender voices, advocating for their rights, and fostering a supportive community. We stand with those affected by this ruling and will continue to highlight the importance of inclusivity, respect, and equal rights for all.
The 6th Circuit U.S. Court of Appeals’ decision to uphold Tennessee’s birth certificate policy has profound implications for the transgender community. While it represents a significant legal setback, it also galvanizes efforts to challenge discriminatory policies and advocate for more inclusive laws. The road to full recognition and rights for transgender individuals is fraught with challenges, but the fight for equality continues with renewed determination and solidarity.
