WHAT’S YOUR GENDER?: A TRANSGENDER’S CONSTITUTIONAL RIGHT TO CHANGE THEIR GENDER MARKER ON THEIR BIRTH CERTIFICATE

Nicole Bauta

Nicole Bauta*

Recently, the state of New York passed legislation allowing transgender people the ability to modify their birth certificates to reflect their gender identity without an affidavit from a healthcare provider.[1] The state of New Jersey has gone further by allowing parents to choose between three gender options at their child’s birth: female, male, and non-binary—the gender-neutral option.[2]

However, not all states are making their laws inclusive to transgender people. Currently, Kansas, Tennessee, and Ohio do not allow transgender people to change their gender markers on their birth certificates.[3] For instance, in 1977 Tennessee passed legislation prohibiting the alteration of gender markers on birth certificates.[4] The statute expressly states, “the sex of an individual shall not be changed on the original certificate of birth as a result of sex change surgery.”[5] Although Kansas does not explicitly prohibit changing gender markers on birth certificates, the Kansas Office of Vital Statistics has denied transgender people born in the state the right to change their birth certificates.[6]

Currently, four transgender individuals in Kansas are suing state officials for denying them the right to change their birth certificates to reflect their gender identities.[7] The Kansas Office of Vital Statistics denied the Plaintiff’s request claiming that they did not have the authority to amend the birth certificates.[8] The Office of Vital Statistics acknowledged the Kansas Court of Appeals decision of In Re Estate of Gardiner, which “acknowledged that ‘Kansas law allows individuals to change the sex designation on their birth certificates “with a medical certificate substantiating that a physiological or anatomical change has occurred.”’”[9]

Statutes and regulations that target transgender people’s ability to modify their birth certificate violate their right to Equal Protection under the Fourteenth Amendment. The Fourteenth Amendment guarantees that,

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.[10]

The purpose of the Equal Protection Clause is to prohibit states from “draw[ing] distinctions between individuals based solely on differences that are irrelevant to a legitimate governmental objective.”[11] In cases involving sex, such as transgender cases, the state has the burden to show the “classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.”[12]

Applying intermediate scrutiny, states cannot meet their burden. These classifications do not serve important government interests and the discriminatory means are not substantially related to an important government interest.[13] Further, states cannot show a compelling state interest or even a rationally related legitimate governmental interest. In order to justify their actions, states argue that the prohibition on birth certificate modification is a mechanism to prevent fraud because the modification prevents the ability to trace the person’s original identity.[14] However, gender markers do not provide any mechanism to prevent fraud. In fact, they can create discrepancies. Since transgender people in some states are not able to modify their birth certificate, they essential commit fraud when they apply for documents, such as a passport, which require their birth certificate because they are unable to fill out their information consistently and accurately to match their birth certificate or gender identity. In addition, the states that allow modification of birth certificates do not show any evidence that transgender people who have changed their gender identity once will change it multiple times.[15] Finally, a person who is transgender usually has a diagnosis of gender dysphoria. That person has gone through rigorous testing and psychological evaluations in order to be considered transgender.

Transgender people deserve the rights afforded to all individuals under the Equal Protection Clause of the Fourteenth Amendment. It will be interesting to see whether other states will follow the example of New York and New Jersey or if they will continue to face law suits for their discriminating practices against transgender people on the bases of sex. As the US District Court in Kansas continues to tackle these issues regarding transgender rights, we may ultimately see the United States Supreme Court eventually weigh in on these issues.

* J.D., candidate, 2019, FIU College of Law.

[1] Evan Simko-Bednarski, New York City Birth Certificates get Gender-Neutral Option, CNN (Jan. 3, 2019, 5:10 pm), https://www.cnn.com/2019/01/03/health/new-york-city-gender-neutral-birth-certificate-trnd/index.html.

[2] Meghan Holohan, New Jersey adds Gender Neutral Option to Birth Certificates, Today (Jan. 29, 2019, 1:33 PM), https://www.today.com/parents/new-jersey-adds-neutral-gender-option-birth-certificate-t147604.

[3] Diana Tourjée, Altered Birth Certificates Are ‘Free Speech’ for Trans People, Lawsuit Says, Broadly (Oct. 15, 2018, 5:02 PM), https://broadly.vice.com/en_us/article/negmzw/kansas-lambda-legal-transgender-lawsuit-birth-certificate.

[4] Allow Transgender People in Tennessee to Amend Their Birth Certificates, Change.org, https://www.change.org/p/tennessee-house-health-and-human-resources-subcommittee-allow-transgender-people-in-tennessee-to-amend-their-birth-certificates (last visited Apr. 7, 2019).

[5] Tenn. Code Ann. § 68-3-203 (2018).

[6] Complaint at 1–5, Foster v. Andersen, No. 18-2552-DDC-KGG, 2019 WL 329548 (D. Kan. 2018).

[7] See generally id.

[8] Id. at 123.

[9] Id. 

[10] U.S. Const. amend. XIV, § 1.

[11] Glenn v. Brumby, 724 F. Supp. 2d 1284, 1296 (N.D. Ga. 2010), aff’d, 663 F.3d 1312 (11th Cir. 2011) (quoting Lehr v. Robertson, 463 US 248, 265 (1983)).

[12] Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F. 3d 1034, 1050 (11th Cir. 2017) (citing US v. Virginia, 518 U.S. 533 (1996)).

[13] Complaint at 185, Foster, 2019 WL 329548 (No. 18-2552-DDC-KGG).

[14] K.L. v. State, Dept. of Admin., Div. of Motor Vehicles, No. 3AN-11-05431-CI, 2012 WL 2685183, at *8 (Alaska Super. Ct. Mar. 12, 2012).

[15] Open Soc’y Found., License to be Yourself: Responding to National Security and Identity Fraud Arguments  (2016), https://www.opensocietyfoundations.org/sites/default/files/lgr-national-security-identity-fraud-20170202.pdf.