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A federal judge has struck down the state of Ohio’s policy prohibiting transgender residents from amending their birth certificates to reflect their correct gender identity.
U.S. District Judge Michael Watson, of the Southern District of Ohio’s Eastern Division, ruled that the policy barring transgender people from correcting the gender marker on their birth certificates — which was introduced in 2016 by the Department of Health under then-Gov. John Kasich (R) — was unconstitutional.
The lawsuit, known as Ray v. Himes and more recently, Ray v. McCloud, was filed in March 2018 by Lambda Legal, the American Civil Liberties Union, the ACLU of Ohio, and law firm Thompson Hine LLP on behalf of four transgender plaintiffs: Stacie Ray, Basil Argento, Ashley Breda and an anonymous trans woman known as Jane Doe.
In their complaint, the trans individuals argued that Ohio; policy refusing to issue them accurate birth certificates reflecting their gender identity was discriminatory and violates their privacy, liberty, and freedom from compelled speech under the U.S. Constitution.
In his ruling, Watson noted that the state had, prior to 2016, allowed transgender people to change their gender markers, with at least 10 transgender people successfully changing their birth certificates to reflect their gender identity by obtaining a court order, paying a processing fee, and completing a form.
“This policy resembles the sort of discrimination-based legislation struck down under the equal protection clause in Romer v. Evans as nothing more than a policy ‘born of animosity toward the class of person affected’ that has ‘no rational relation to a legitimate government purpose,'” Watson wrote, referring to a 1996 case in which the U.S. Supreme Court decided a Colorado voter-approved law denying equal protection to LGBTQ individuals violated their constitutional rights.
“[T]he Court finds that Plaintiffs have submitted sufficient evidence to demonstrate that they have a substantive due process right to informational privacy that protects against the forced disclosure of the unchanged sex marker on their birth certificates,” Watson wrote.
He then proceeded to dismantle the various arguments offered by Ohio as justification for the policy: that the state has a vested interest in maintaining “historically accurate” records, and the contention that allowing gender markers to be changed would lead to more criminals using birth certificates to “perpetuate fraud.”
“At bottom, the court finds that defendants’ proffered justifications are nothing more than thinly veiled post-hoc rationales to deflect from the discriminatory impact of the Policy,” Watson wrote.
“The Court does not disagree that accurate records are important, but it would find this argument more persuasive if Defendants could explain why permitting someone who is adopted to change the names of their parents on their birth certificate to reflect people other than the individuals identified on the document at birth does not affect the historical accuracy of the document and vital statistics, but changing a sex marker does,” he added.
“Moreover, the idea that the State of Ohio has a true interest in maintaining historically accurate records is undermined by the fact that Ohio permitted transgender people to change the sex marker on their birth certificates until 2016,” he added. “Defendants have offered no evidence to explain why ‘historical accuracy’ has only recently become a State interest, or why it was necessary to change its Policy to further that interest. Given this, Defendants have failed to show that their Policy is substantially related to vital statistic preservation and certainly failed to show the Policy is the least restrictive means of achieving that purported goal.”
With respect to the fraud argument, Watson wrote: “[T]he fact that criminals currently perpetuate fraud using birth certificates generally does not require the Court to therefore conclude that allowing transgender individuals to change their sex marker will lead to more fraud any more than allowing a person’s legally changed name to be put on the birth certificate would.
“Defendants’ Policy prohibits transgender people the ability to change the sex on their birth certificate in an arbitrary and unequal manner,” he concluded. “Thus, although the Court finds that transgender people are a quasi-suspect class entitled to heightened scrutiny protections under the equal protection clause, even under rational basis review Defendants’ Policy does not pass constitutional muster.”
The Ohio Department of Health, which oversees and enforces the policy, has not yet indicated whether it intends to appeal the decision.
“This is truly a victory for the LGBT community, in every aspect,” plaintiff Stacie Ray said in a statement.
“Finally, transgender people from Ohio will be able to correct their birth certificates so that this necessary identity document is consistent with their gender identities,” Kara Ingelhart, a staff attorney at Lambda Legal, said in a statement. “Accurate birth certificates are essential. They are foundational to our ability to access a variety of benefits such as employment and housing, and to navigate the world freely and safely, as who we truly are. Courts across the country have overwhelmingly determined these archaic and harmful laws are unconstitutional and today we are closer than ever to eradicating them once and for all.”
At the time the lawsuit was filed, Ohio was one of only three states, along with Tennessee and Kansas, that categorically prohibited transgender people from changing the gender marker on their birth certificate. A group of four transgender plaintiffs have since filed a lawsuit challenging Tennessee’s law. In June 2019, Kansas reached a consent agreement in which it agreed to begin issuing corrected birth certificates to transgender individuals who request them.
Earlier this summer, Idaho lawmakers attempted to pass a law prohibiting gender marker changes on birth certificates, in violation of an earlier court order finding such a prohibition unconstitutional. That law was later struck down by a federal court.
Advocates have noted that inaccurate vital documents can put transgender individuals at heightened risk of violence or discrimination. According to the 2015 U.S. Transgender Survey, nearly 1 in 3 transgender individuals who presented an identity document with a name or gender marker conflicting with their perceived gender were harassed, denied benefits or services, discriminated against, or assaulted.
“Trans people are the experts on our own genders, lives, and needs,” Malita Picasso, a Skadden Fellow with the ACLU’s LGBT & HIV Project, said in a statement. “I’m thrilled that the court recognized that policies like Ohio’s, which misgender and endanger us, also violate the Constitution. We will keep fighting until we get rid of all discriminatory and burdensome requirements for ID changes around the country.”
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