Lee Himes, former director of the Ohio Department of Health, who is now the agency’s General Counsel – Photo: Ohio Department of Health, via Facebook.
A federal court judge has ruled that four transgender individuals may move forward with a lawsuit against the Ohio Department of Health for its policy that categorically refuses to amend the gender marker on a person’s birth certificate, even when they provide evidence of a gender transition.
The lawsuit was brought in March 2018 by Lambda Legal, the American Civil Liberties Union, and the ACLU of Ohio on behalf of four transgender plaintiffs: Stacie Ray, Basil Argento, Ashley Breda and an anonymous trans woman known as Jane Doe. The lawsuit names Lee Himes, the former director of the Ohio Department of Health, who now serves as its General Counsel; Karen Sorrell, the chief of the Office of Vital Statistics; and Judith Nagy, the State Registrar of the Office of Vital Statistics as defendants in the lawsuit.
In their complaint, the transgender plaintiffs claim that Ohio’s policy refusing to issue accurate birth certificates for transgender individuals that reflect their gender identity is discriminatory and violates their privacy, liberty, and freedom from compelled speech under the U.S. Constitution.
At the time the lawsuit was filed, Ohio was one of only three states, along with Tennessee and Kansas, that would not allow corrections to birth certificates to be made, even if transgender individuals provided proof of transition, proof of gender confirmation surgery, or court orders recognizing them as their true gender for all other legal purposes.
In June, Kansas reached a consent agreement with Lambda Legal and promised to begin issuing corrected birth certificates to those who request them. There is currently an ongoing lawsuit being waged in Tennessee over that state’s refusal to amend its policy.
On Thursday, U.S. District Judge Michael Watson of the Southern District of Ohio dismissed a motion by the state of Ohio asking that the case be dismissed. That allows Lambda Legal, on behalf of its four clients, to craft a case arguing over the constitutionality of the policy.
Quoting from the Obergefell v. Hodges decision that legalized marriage equality, Watson wrote: “In the strict scrutiny context, ‘these vague, speculative, and unsubstantiated state interests do not rise anywhere near the level necessary to counterbalance the specific, quantifiable, and particularized injuries’ alleged by Plaintiffs and suffered by transgender people as a whole when they miss out on basic government benefits or face being outed as transgender upon presentation of their birth certificates. …
“‘The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and the legislature refuses to act.’ State laws are still subject to guarantees afforded by the Constitution,” Watson added. “Additionally, it is not compelling that a change to Defendants’ policy might be challenging to implement. Forty-eight states have figured it out.”
Lawyers for the plaintiffs celebrated the ruling.
“Despite the state’s attempt to block our case, the court has unequivocally upheld our claims,” Freda Levenson, the legal director of the ACLU of Ohio, said in a statement. “Noting that Ohio is an extreme outlier — one of only two states that does not permit trans individuals to correct their birth certificates — the Court found that Ohio’s continued refusal violates our clients’ right to live lives without fear of exposure to discrimination, harassment or violence. This ruling paves the way to complete victory. Now we will continue to fight until we completely remove this barrier.”
“The current policy outs and misgenders transgender people born in Ohio any time they have to use their birth certificate,” Gabriel Arkles, a senior staff attorney at the national ACLU, added. “…Whether, when, and how to share this sort of private information with others should be our own choice, not the government’s.”
“What we are arguing is simple: the identities and dignity of transgender Ohioans must be recognized by the state,” Kara Ingelhart, a staff attorney with Lambda Legal, said in a statement. “Ohio is out of step with the rest of the United States in clinging to this archaic and dangerous refusal to provide transgender Ohioans with accurate documentation which serves no other reason than discrimination.”
Stacie Ray, the lead plaintiff in the case, said she was looking forward to her day in court.
“It is frustrating that it will take a lawsuit to have my state recognize me for who I really am,” Ray said in a statement. “But I’m confident that, in the end, our fundamental right to live as our true and authentic selves will prevail and that no one else in Ohio will have to endure the horrific experiences I and my fellow plaintiffs have endured moving forward.”
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