Appeals court: No constitutional right to change sex on birth certificate in Tennessee

A federal appeals court in Tennessee ruled that people do not have a constitutional right to change the sex on their birth certificate, at least in Tennessee.

The case was brought by Lambda Legal on behalf of the plaintiffs, a transgendered man and three transgender females.

The suit sought to overturn a 1977 state law that generally prohibits changes to birth certificates, said the AP. 

The lawsuit was previously dismissed by U.S. District Judge Eli Richardson, who noted that the term “sex” for the purposes of a birth certificate in Tennessee has a very narrow meaning, describing the genitalia of the baby. 

The dismissal resulted in Lambda Legal’s appeal to the 6^th Circuit Court.   

The appeals court, in a 2-1 decision, found against the plaintiffs, with the majority noting, “We as judges cannot ignore the legal reality that the United States Constitution does not speak directly to this evolving issue in our society. What it does require – rational grounds for drawing policy choices – is too modest an obligation to make a difference in the debate at the center of today’s case.” 

Under Tennessee law, the court noted, changes to birth certificates are authorized for “factual errors.” 

“A ‘sex change surgery’ does not count as a factual error that permits a change to the sex listed on a birth certificate” under Tennessee law, said the court. 

The purpose of the birth certificate under state law is to collect demographic information about the live birth of babies at the time they are born, the court said.    

“Tennessee does not guarantee anyone a birth certificate matching gender identity, only a certificate that accurately records a historical fact: the sex of each newborn,” wrote the majority.  

Judge Helene White, writing a minority opinion, said that the decision “forcibly outs” transgender people under “the myriad circumstances” where birth certificates are needed to “participate fully in contemporary society.”  

A previous ruling in June by the 10th Circuit Court of Appeals found that Oklahoma’s denial of gender changes on birth certificates “is not rationally related to the [state’s] asserted interest in the accuracy of vital statistics.”  

That case was also filed by Lambda Legal, but this time challenging an executive order by Oklahoma’s Republican Gov. Kevin Stitt that banned amendments to birth certificates.  

The executive order was the result of a lawsuit filed by a non-resident, challenging state health department refusals to change a birth certificate to reflect a gender identity change.  

Oklahoma’s Attorney General Gentner Drummond is pondering the state’s next steps in the case, according to local KJRH.   

Tennessee Attorney General Jonathan Skrmetti acknowledged in a statement that other states have different policies for modifying birth certificates in transgender cases, ABC News reported. 

But Tennessee has been consistent, he added.   

“While other states have taken different approaches, for decades Tennessee has consistently recognized that a birth certificate records a biological fact of a child being male or female and has never addressed gender identity,” Skrmetti said. 

A dissenting judge in the Oklahoma case may have come closest to guessing the final outcome of both cases. 

“The sex-discrimination issue in this case is a difficult one. But I must respectfully dissent. Perhaps one day we will get clarification from the Supreme Court,” wrote Judge Harris L. Hartz in his dissenting opinion.