Court supports transgender plaintiffs in Oklahoma lawsuit

A federal appeals court says three transgender people should be able to sue the state of Oklahoma over a policy that prohibits them from changing the gender marker on their birth certificate to match their gender identity.

On June 18, a three-judge panel of the 10th U.S. Circuit Court of Appeals reversed a lower court’s ruling dismissing a lawsuit brought by the three against the state.

The lawsuit focused on an executive order issued by Republican Gov. Kevin Stitt in November 2021 that changed a decades-old policy of allowing transgender people to change their gender marker on their birth certificate.

All three panel judges agreed that the lawsuit filed by Lambda Legal on behalf of transgender people contained valid legal challenges alleging that the birth certificate policy unconstitutionally discriminated against transgender people.

He ruled that the Stitt administration’s justification for the policy was irrational.

U.S. District Judge Carolyn McHugh, writing for the appeals court, said Oklahoma’s various legal justifications for pushing the birth certificate policy were weak.

“(D)efendants argue that Oklahoma has an interest in ensuring that all birth certificates in Oklahoma uniformly reflect sex assigned at birth,” McHugh wrote. “However, this alleged interest is at odds with the fact that Oklahoma allows changes to gender designation on driver’s licenses. Following the implementation of the Policy, there is a lack of uniformity in official state documents because Oklahomans, like Plaintiffs, have a birth certificate indicating one gender and a driver’s license indicating another.

“Defendants also argue that gender corrections are different from other permitted corrections because gender is immutable. But Oklahoma allows amendments to other seemingly immutable facts – such as biological parents,” she added. “For these reasons, the Policy is not reasonably related to Defendants’ stated interest in the accuracy of key statistics.”

McHugh rejected other justifications for preventing transgender people from changing their gender designation on their birth certificate, such as the desire to keep sports teams segregated based on athletes’ gender assigned at birth.

She noted that Oklahoma’s policy on gender segregation in sports is enforced by parents and students submitting declarations confirming the gender assigned to them at birth, rather than relying on information on birth certificates.

It therefore concluded that the birth certificate policy was not essential to achieving the state’s alleged goal.

McHugh even rejected arguments made by those who filed amicus briefs on behalf of Oklahoma and the Stitt administration that the birth certificate ban was necessary to prevent fraud or protect state resources, concluding that the “State Amici,” as these sites are called, did not succeeded in demonstrating how the policy contributed to achieving these goals.

“Plaintiffs have met their burden of denying every possible basis that could support the Policy,” McHugh wrote. “Of course, a rational basis is a low bar, and the state action being questioned does not have to be perfect. However, there must be some rational connection between the Policy and the legitimate interest of the state. There is no rational connection here – Politics is looking for a goal.

The appeals court rejected the transgender plaintiffs’ claim that the policy violated their substantive due process rights, finding that they did not point to specific state action that violated those rights, such as coercing or intimidating the plaintiffs to have birth certificates.

However, the Court’s majority found that any government discrimination against transgender people invites heightened judicial review, citing the reasoning behind the Supreme Court’s 2020 ruling in Bostock v. Clayton Countyin which the High Court held that the Civil Rights Act protected LGBTQ people from workplace discrimination.

“Applied here, Bostockreasoning leads to the conclusion that the Policy intentionally discriminates against Plaintiffs, in part, on the basis of gender,” McHugh wrote on behalf of herself and Judge Richard Federico. “Take (plaintiff) Ms. (Rowan) Fowler, for example. If her gender was different (i.e., if she had been assigned female at birth), then the policy would not have denied her a birth certificate that accurately reflected her identity. It is similar in the case of Mr. (Allister) Hall and Mr. (Carter) Ray – if they had been assigned male at birth, they would not have been affected by the policy. Therefore, the Policy intentionally treats Plaintiffs differently based on their sex assigned at birth.

Although she noted that the state and its allies have suggested various reasons why the transgender plaintiff’s discrimination claim should be rejected, the court, she wrote, “does not find any compelling.”

Stitt’s executive order implementing this policy appears to have been motivated partly by his own opposition to the idea that a person’s gender could be different from the sex assigned to him at birth, and partly by a desire to curry favor with social conservatives.

The governor and his fellow Republicans in the Legislature were outraged when the Oklahoma Department of Health complied with a judge’s order and issued a corrected birth certificate with a non-binary gender marker.

“I believe that humans were created by God as male or female. Period,” Stitt said at the time, promising to take “every action necessary to protect Oklahoma values ​​and our way of life.”

The birth certificate controversy received wide coverage, especially in conservative-leaning media, prompting Lance Frye, former Oklahoma health commissioner, to resign. Frye’s successor then implemented an informal policy of refusing to change the original gender designation on any birth certificates. This policy became formal when an executive order was issued the following month.

In March 2022, Lambda Legal filed a lawsuit on behalf of Rowan Fowler, a transgender woman, and Allister Hall and Carter Ray, two transgender men, alleging that the policy was not only discriminatory but also created problems for all three plaintiffs when they had to submit records birth with a gender marker that does not correspond to their gender identity – and in some cases the gender marker on other identity documents.

A federal judge dismissed the lawsuit in June 2023, prompting the plaintiffs to appeal that decision to the 10th Circuit. Now Going forward, the Tenth Circuit has ordered the lower court to reconsider the merits of the transgender plaintiffs’ lawsuit and whether it should continue.

Plaintiffs’ lawyers celebrated the Tenth Circuit’s decision and look forward to arguing in court that the policy is unconstitutional.

“This ruling is a monumental victory for the transgender community in Oklahoma and across the country, sending a clear message to lawmakers everywhere that unconstitutional discrimination against transgender people will not be tolerated in the courts,” said Peter Renn, senior counsel at Lambda Legal. statement.

“This ruling comes at a critical time amid a surge in anti-transgender policies of all kinds across the country,” Renn added. “This includes attempts, such as the one in this case, to deprive transgender people of the basic ability to amend their identification documents to match their identity, which may expose them to harassment, abuse and physical danger.”