Transgender Community In Tennessee Wants State’s Refusal To Amend Birth Certificates Declared Unconstitutional

Kayla Gore

A federal appeals court convened on Thursday, May 2, to hear arguments regarding a longstanding Tennessee policy that prohibits transgender individuals from altering the sex designation on their birth certificates.

Originally filed in federal court in Nashville in 2019, the lawsuit was brought forth by transgender Tennesseans who contend that the state’s restriction lacks a legitimate governmental interest and subjects transgender individuals to discrimination, harassment, and violence when presenting a birth certificate that conflicts with their gender identity.

They argue that the policy violates the constitution.

Last year, a federal judge dismissed the case, asserting that while there are various definitions of “sex,” Tennessee defines the term narrowly and specifically for birth certificates as “external genitalia at the time of birth.”

Representing the transgender plaintiffs before a three-judge panel of the Sixth U.S. Circuit Court of Appeals, Attorney Omar Gonzalez-Pagan from Lambda Legal argued that birth certificates are crucial identity documents and, in the case of transgender individuals, are inaccurate.

He highlighted that Tennessee permits changes to birth certificates when sex is listed as “unknown” at birth.

During the proceedings, Judge Jeffrey Sutton posed a hypothetical question about the constitutionality of allowing changes to driver’s licenses but not birth certificates.

Gonzalez-Pagan emphasized situations where birth certificates are required for identification, such as obtaining passports.

Sutton also questioned whether self-identification as transgender should suffice to change a birth certificate. Gonzalez-Pagan eventually affirmed that self-identification should be the requirement.

The plaintiffs, four transgender women born in Tennessee, contend that sex should be determined by gender identity rather than external genitalia.

However, they are not seeking a determination on this matter from the appeals court but rather a reversal of the dismissal without a trial.

Representing the state of Tennessee, Associate Solicitor General Matt Rice argued that the dismissal was proper and that the Constitution does not mandate birth certificate amendments to reflect gender identity.

Rice asserted that the sex designation constitutes protected government speech and that transgender individuals are not treated differently from others.

Regarding a separate case where a transgender woman sued the Tennessee Department of Safety and Homeland Security over a driver’s license issue, Sutton suggested that birth certificates record sex at birth while licenses serve as current identity documents.

Rice argued that legislative actions cannot indicate animus against transgender people.

Tennessee is among five states that do not allow transgender individuals to change birth certificate sex designations, but laws and policies regarding identification documents for transgender individuals are evolving nationwide.

Recently, transgender, intersex, and nonbinary Arkansas residents sued the state over its decision to disallow “X” on state-issued licenses or identification cards.

Story culled from a report by AP.