U.S. District Court Orders Idaho to Amend Birth Certificates for Transgender Applicants

By Timothy Ramos

This past March 31st, social media platforms such as Twitter and Instagram buzzed with messages in support of transgender individuals and the International Transgender Day of Visibility. The holiday celebrates transgender individuals and raises awareness of the discrimination they face worldwide. Using #TransDayofVisibility, thousands of online users shared stories and photos detailing the hardships they have faced as transgender individuals, and the resilience they have shown in response. One obstacle that transgender individuals continue to face in the U.S. is the inability or difficulty to amend their birth certificate so that the listed sex matches their gender identity.

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Up until recently, four states — Idaho, Kansas, Ohio, and Tennessee — still did not permit transgender individuals to change the sex listed on their birth certificate. However, on March 5th, the U.S. District Court for the District of Idaho ordered the Idaho Department of Health and Welfare (IDHW) to begin accepting such applications from transgender individuals; the state must comply with the order by April 6, 2018. Prior to the Court’s order, the IDHW interpreted the state’s vital statistics law to prohibit changes to the listed sex on a birth certificate unless an applicant showed there was an error in recording the sex at birth. Because Idaho birth certificates reflect the “sex” of a person at birth and do not contain a “gender marker” designation, the IDHW’s policy automatically and categorically denied applications by transgender individuals who sought to change the listed sex to reflect their gender identity.

In response to the IDHW’s policy, Lambda Legal filed suit in April 2017 on behalf of F.V. and Dani Martin, two transgender women born in Idaho who sought to change their birth certificates to better reflect their names and gender identities. Both plaintiffs had previously taken steps, both medically and socially, to bring their bodies and expressions of gender in line with their female gender identity. This included legally changing their names from traditionally male names to traditionally female ones, and changing their names and gender on their driver’s license and social security records. However, when they contacted the Idaho Bureau of Vital Records and Health Statistics to inquire about changing the sex listed on their birth certificates, they were informed that the IDHW did not consider such applications.

The defendants — three IDHW employees variously responsible for the implementation, enforcement, development, and interpretation of Idaho’s vital statistics laws — conceded that the IDHW’s policy violated the plaintiffs’ constitutional rights under the 14th Amendment’s Equal Protection Clause (EPC). The court also found that the plaintiffs adequately alleged that they were treated differently from non-transgender people born in Idaho because the IDHW’s policy automatically and categorically denied transgender applicants’ requests to amend the sex listed on their birth certificates to align with their gender identity; meanwhile, other classes of people (like adoptive parents) were able to amend birth certificates — without recording the amendment — to accurately reflect the legal parentage of a child. Furthermore, the defendants could provide no policy justification for the refusal to make such amendments. Thus, U.S. Magistrate Judge Candy W. Dale’s opinion focused primarily on which level of scrutiny to apply. Ultimately, she agreed with the plaintiffs’ assertion that intermediate scrutiny applied to Equal Protection claims alleging discrimination against transgender individuals. Judge Dale rejected the defendants’ contention that the Court should apply rational basis review merely because the defendants admitted that the IDHW’s policy was not rationally related to a legitimate government interest.

In determining which level of scrutiny to apply, Judge Dale restated that a law is subject to heightened scrutiny review — either strict scrutiny or intermediate scrutiny — when that law classifies on the basis of a suspect class or quasi-suspect class. If the law does not classify on either basis, the law is simply subject to rational basis review. Under Supreme Court precedent, strict scrutiny is limited to classifications based on race, alienage, and national origin; thus, the only form of heightened scrutiny review possibly available to the plaintiffs was intermediate scrutiny, which has been historically applied to quasi-suspect classifications based on sex and illegitimacy. Thus, in order for the court to apply intermediate scrutiny to plaintiffs’ EPC claim, the court must have found either that: (i) discrimination based on transgender status is discrimination based on sex or gender; or (ii) transgender status is a suspect classification in and of itself. Either way, the plaintiffs maintained that the IDHW’s policy was not substantially related to an important governmental objective and would thus fail intermediate scrutiny review.

Judge Dale first found that discrimination based on transgender status is discrimination based on sex or gender that is subject to intermediate scrutiny review. Although the 9th Circuit held that rational basis review applied to classifications based on “transsexual” status in Holloway v. Arthur Andersen & Co, Judge Dale found the case to be outdated in light of more recent decisions, such as Price Waterhouse v. Hopkins, Schwenk v. Hartford, and Norsworthy v. Beard, which have ultimately resulted in the conclusion that discrimination based on transgender status is a form of gender discrimination, which in turn is a form of sex discrimination subject to intermediate scrutiny review. Furthermore, Judge Dale pointed out that society’s medical understanding of biological sex and gender has advanced significantly since Holloway. Previously in her opinion, the judge cited sections of the World Professional Association for Transgender Health’s (WPATH) Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People. Most notably, Judge Dale explained that “biological sex” is now determined by numerous elements besides an individual’s external genitalia observed at birth; these elements include chromosomal composition, internal reproductive organs, hormone prevalence, and brain structure. In comparison, gender identity is one’s intrinsic sense of being male, female, or an alternative gender. Furthermore, a transgender individual is a person who has a gender identity that differs in varying degrees from the biological sex observed and assigned at birth.

Alternatively, Judge Dale found that transgender status meets the four-factor test prescribed by the U.S. Supreme Court to determine whether a class qualifies as suspect or quasi-suspect subject to intermediate scrutiny review. Under this test, heightened scrutiny is warranted where the government discriminates against a class that: (i) has been historically subjected to discrimination; (ii) has a defining characteristic bearing no relation to ability to perform or contribute to society; (iii) has obvious, immutable, or distinguishing characteristics; and (iv) is a minority or politically powerless. Other courts have found that, as a class, transgender individuals have met each of these four prongs. Judge Dale noted that this was especially true in Idaho, where transgender individuals have no state statutory or constitutional protections from discrimination based on their transgender status in relation to employment decisions, housing, and other services.

While the court’s decision is a clear victory for transgender people because Idaho can no longer automatically and categorically deny applications submitted by transgender individuals to amend their birth certificates, it is particularly significant because the court chose to adopt a heightened form of scrutiny — rather than rational basis review — for EPC claims involving governmental classifications regarding transgender status. Although Idaho was one of only four states that had not permitted transgender individuals to amend the listed sex in their birth certificates to reflect their gender identity, many other states have implemented various barriers to make it more difficult for transgender individuals to make such amendments; such barriers are designed to survive rational basis review. In their Response to Motion for Summary Judgment, the defendants implied that they retained the power employ factors in future processing applications to amend birth certificates, including the requirement that an applicant take “appropriate clinical steps to permanently change gender.” As stated in Lambda Legal’s reply brief, the defendants basically sought to retain authority to deny birth certificate amendments to transgender individuals based on criteria in addition to their gender identity. Allowing the defendants to retain such power would undercut the court’s intention to remedy the harm suffered by the plaintiffs and other transgender individuals. As discussed by WPATH’s Standards of Care, a transgender individual’s process of transitioning is often limited to social transitions such as changes in clothing, name, pronouns, hairstyle, and identity documents. “Appropriate clinical steps,” otherwise known as medical treatments, may not be utilized for numerous reasons such as lack of necessity, lack of insurance, and other personal or financial factors. Any attempt by the respondents to erect such barriers would likely fall when subjected to heightened scrutiny.

This article appears in LGBT BAR NY’s “LGBT Law Notes,” the most comprehensive monthly publication available summarizing legal and legislative developments affecting the LGBT community here and abroad.

Executive Director, LeGaL @lgbtbarny. Attorney promoting justice in & through the legal profession for the #LGBT community. 40 Best LGBT Lawyers Under 40.

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