(CN) — On Thursday, the Sixth Circuit heard an appeal from four transgender women who say a Tennessee statute is discriminatory because it prevents them from changing the sex on their birth certificates.
The decades-old Tennessee law assigns each child a sex based solely on their external genitalia at birth.
In 2019, four transgender women challenged that law, arguing that they should be able to change their birth certificates to reflect their gender identities so they can use IDs without having to disclose their transgender status.
“No compelling, important or even legitimate governmental justification supports Tennessee’s refusal to provide transgender people with accurate birth certificates that match their gender identity,” the plaintiffs say in their lawsuit.
U.S. District Court Judge Eli Richardson, a Donald Trump appointee in the Middle District of Tennessee, disagreed with the plaintiffs and dismissed their lawsuit in June 2023.
“Plaintiffs have not plausibly alleged that, collectively, Tennessee birth certificates and the birth certificate policy suggest that persons cannot transcend these categories, that there are no other ways to categorize people, that there are no other ways to conceive of 'sex,' that there are no other ways to conceive of 'male' or 'female,' or that whatever 'sex' a person is for purposes of a Tennessee birth certificate is the person’s sex generally or for all purposes,” Richardson wrote.
Richardson concluded that it might be a good idea for Tennessee to allow changes to birth certificates, but that it was not the court’s place to judge the policy, so long as it does not violate the plaintiffs’ First Amendment and due process rights.
The plaintiffs appealed the lower court’s ruling to the Sixth Circuit, where a three-judge panel heard oral arguments for roughly 40 minutes.
Lambda Legal attorney Omar Gonzalez-Pagan appeared on behalf of the plaintiffs, arguing that his clients wish to have birth certificates that accurately reflect who they are.
“This case pertains to one specific document: the copy of the birth certificate that is furnished to every person born in Tennessee for purposes of identification,” Gonzalez-Pagan said. “It is not about altering the underlying original birth record or the state’s vital statistics file for that person.”
U.S. Circuit Court Judge Helene White, a George W. Bush appointee, asked if plaintiffs would object if Tennessee required some record of proof to change their sex on a government document.
“Would you be opposed to some sort of medical certification?” White asked.
Gonzalez-Pagan responded that the case before the court centers on self-identification.
“It is only transgender people who are prohibited from correcting that document,” he said.
Solicitor General Matthew Rice, arguing on behalf of Tennessee, said that the plaintiffs’ requested relief is not required by the Constitution.
“The Constitution does not require states to amend their birth certificates to include a person’s gender identity. Tennessee does not somehow discriminate against transgender persons by merely maintaining an accurate record of a person’s sex, based off of external genitalia at birth,” Rice said.
Rice went on to say that Tennessee does not treat anyone differently based on their transgender status.
During the proceeding, U.S. Circuit Court Chief Judge Jeffrey Sutton questioned Rice on whether the law could be seen as spiteful toward transgender people.
Sutton cited a different case where plaintiffs have challenged a new Tennessee law prohibiting changing an individual’s gender on their driver’s license.
“Part of your reasons for why the birth certificate should focus on biological sex, I think, are very legitimate. I think they are beyond reproach when it comes to the Constitution,” said Sutton, a George W. Bush appointee. “The only risk is that this is a suspect class because of animus towards this group, and the recent change is putting you in a tricky spot, if you ask me.”
Rice responded by arguing that animus does not apply because the birth certificate law is decades older than the new driver’s license rule, and that the state has valid reasons to uphold the way it handles birth documents.
“We think there are numerous rational justifications to support the Tennessee law,” Rice said.
White then asked Rice why the state’s interests are not upheld by simply keeping the original on file, referring to the idea that the birth certificate copy a transgender person uses could reflect their gender identity even if the state maintains a copy of the original birth record.
“One, it would create an administrative burden. Two, one of our rationales we used here was that the birth certificate is used as evidence of a person’s biological sex at birth based off external genitalia for various programs — sports programs, for example,” Rice said.
Rice added that an amended birth certificate that did not specify it had been changed would “undermine those sex-separated sports and sex-separated bathroom policies that already exist in the law.”
Donald Trump-appointed U.S. Circuit Judge Amul Thapar joined the panel.
No timetable was issued for a ruling in this case.
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