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U.S. Court Orders Idaho to Issue Birth Certificates to Transgender Applicants

Posted on: March 11th, 2018 by Art Leonard No Comments

U.S. Magistrate Judge Candy Dale (D. Idaho), has ordered the state of Idaho to allow transgender people born there to obtain birth certificates correctly identifying them according to their gender identity.    F.V. & Martin v. Barron, 2018 WL 1152405, 2018 U.S. Dist. LEXIS 36550.  Once Idaho has complied with Judge Dale’s March 5 Order, the only states where transgender people can’t get appropriate new birth certificates will be Ohio, Tennessee, and Kansas.  Also, the Commonwealth of Puerto Rico, a U.S. territory, does not provide such birth certificates. The other 46 states and the District of Columbia do, although the criteria for getting them vary from state to state.

Judge Dale ruled in a lawsuit filed by Lambda Legal on behalf of two transgender women born in Idaho, whose birth certificates identify them as male and use the names their parents gave them at birth.

One, F.V., states that “she knew from approximately 6 that she was female” and she “began to live openly as a female when she was 15 years old” and has done so since.  She has transitioned “both medically and socially,” and has gotten a legal name change, which she then used to get a new driver’s license, passport, and social security card.  However, when she contacted the Idaho Bureau of Vital Records and Health Statistics in the Department of Health and Welfare to get a new birth certificate, she was told that the Bureau “does not consider such applications.”

According to Judge Dale’s opinion, “F.V. asserts that living with a birth certificate declaring she is male is a permanent and painful reminder that Idaho does not recognize her as she is – as a woman.  Beyond this, she states that presenting an identity document that conflicts with her gender identity is both humiliating and dangerous: it puts her at risk of violence by disclosing against her will and intentions that she is a transgender individual.”

The other plaintiff, Dani Martin, tells a similar story, having known from an early age that she was female despite her birth name and anatomy.  However, writes Judge Dale, “fear of rejection and bullying prevented her from coming out when she was younger.”  With support from her spouse and family she began to transition in 2014.  She has lived as a woman since then, taking steps both medically and socially to “bring her body and expression of gender in line with her female identity.”

Like F.V., Dani has legally changed her name and obtained a new driver’s license and social security card, but the state’s policy blocked her from getting a new birth certificate, which, she claims, “has exposed her to harassment and embarrassment,” and has “prevented her from making the change in other important records.”

Lambda’s complaint charged that Idaho’s policy against issuing new birth certificates violates the 1st and 14th Amendments of the Constitution, citing both the due process and equal protection clauses.  Judge Dale decided to confine her ruling to the Equal Protection claim.

Any law or policy that systematically treats people differently based on any characteristic requires a rational, non-discriminatory justification.  In this lawsuit, the state conceded that there was no rational basis for refusing to issue the requested certificates, but such changes are not specifically authorized under the state’s vital statistics statute, and evidently the state administration was either unwilling to ask the legislature to change that or calculated – probably correctly – that any such request would be futile.  Theoretically, the administration could change the policy by adopting a new rule, but was not willing to take whatever political heat that would generate.  In effect, the state’s response to the lawsuit was to ask the court to issue an order, so that state officials could refute any criticism by putting the “blame” for this change on the court.

Idaho does issue new birth certificates for a variety of reasons, including correcting factual errors made at birth, adding listing of fathers for people born to unmarried women, in response to later acknowledgements or determinations of paternity, and changing names and paternal and maternal information as a result of adoptions.  In those cases, “the vital statistics laws require the amendments not be marked or noted on the birth certificate,” but a “catch-all” provision in the law, which applies to any birth certificate changes that are not specifically authorized by the statute, says that amendments made under the “catch-all” provision “must be described on the birth certificate.”  Since including such information on a new certificate would effectively “out” any transgender person presenting their certificate for any reason, the lawsuit sought to ensure that the requested certificates appear completely ordinary on their face, with no indication of amendment or special circumstances, and Judge Dale incorporate this in her order.

The only real dispute between the parties was whether the court should go beyond the state’s concession that it had no rational policy justification for an outright denial of new birth certificates for transgender people, to determine whether gender identity itself is a “suspect classification,” imposing a high level of justification for the challenged policy.  The state urged Judge Dale not to do that,  but the plaintiffs, concerned about the possibility that the state might come up with a new rule imposing costly barriers to obtaining the new licenses – such as a requirement for complete surgical transition, which is still the rule in many other states – asked Judge Dale to determine that a more demanding level of judicial review would apply in evaluating any such rule.

Siding with the plaintiffs, Dale extended her opinion to provide a detailed discussion of gender identity and its status under federal constitutional law, concluding that heightened scrutiny should be applied.  After reviewing advances in the understanding of human sexuality, she wrote, “to conclude discrimination based on gender identity or transsexual status is not discrimination based on sex is to depart from advanced medical understanding in favor of archaic reasons.”  Under binding Supreme Court precedents, discrimination because of sex requires heightened scrutiny.

Furthermore, Judge Dale found, gender identity or transgender status should be treated the same way that the 9th Circuit (whose jurisdiction includes Idaho) has treated sexual orientation or homosexual status.  “The pervasive and extensive similarities in the discrimination faced by transgender people and homosexual people are hard to ignore,” she wrote. “(1) Transgender people have been the subject of a long history of discrimination that continues to this day; (2) transgender status as a defining characteristic bears no ‘relation to ability to perform or contribute to society;’ (3) transgender status and gender identity have been found to be ‘obvious, immutable, or distinguishing characteristics;’ and (4) transgender people are unarguably a politically vulnerable minority.”

“This is especially true in Idaho,” the judge commented, “where transgender people have no state constitutional protections from discrimination based on their transgender status in relation to employment decisions, housing, and other services.  Therefore, transgender people bear all of the characteristics of a quasi-suspect class and any rule developed and implemented by IDHW should withstand heightened scrutiny review to be constitutionally sound.”   This would mean that any challenged requirement would have be supported by an important government interest that the requirement is shown to have substantially advanced.  Under this standard, it is unlikely that a surgical requirement would withstand judicial review, as many other states (and countries) have come to agree that imposing such a requirement poses an unnecessary barrier to the ability of many transgender people to obtain appropriate official documentation, without serving any significant public purpose.

Judge Dale pointed out that the state already has in place an established procedure for dealing with amendments to birth certificates, so “allowing such amendments would pose no new burden on Defendants,” since “Idaho vital statistics laws allow IDHW to create and implement a constitutionally-sound rule, and IDHW already has in placed processes and procedures to  facilitate the amendment of birth certificates in the ordinary course of its everyday activities.”  Thus, she found it appropriate to issue an injunction, giving the state up to one month to “begin accepting applications made by transgender people to change the sex listed on their birth certificates,” and specifying that the new certificates “must not include record of amendment to the listed sex” and should use the new legal name of the applicant.

The plaintiffs are represented by Lambda Legal attorneys Peter Renn and Kara Ingelhart, with pro bono local counsel Monica G. Cockerille of Boise, Idaho.