Plaintiffs want to be able to switch their sex on birth certificates.
A federal appeals court on June 18 revived a lawsuit against Oklahoma’s prohibition on changing the sex listed on birth certificates.
The prohibition, which came from an executive order issued by Oklahoma Gov. Kevin Stitt, “purposefully discriminates on the basis of transgender status and sex,” a panel of the U.S. Court of Appeals for the 10th Circuit said, overruling the 2023 dismissal of the case by a lower court.
U.S. Circuit Judge Carolyn McHugh, writing for the panel, said that because “cisgender people” still have birth certificates that reflect their “gender identity” but transgender people don’t, the policy has a disparate effect that “indicates discriminatory intent.”
Oklahoma officials had contended there was no disparate impact because nobody, regardless of their identity, can amend the sex on their birth certificate.
Mr. Stitt, a Republican, said in 2021 he learned that the sex on birth certificates could be amended and issued an executive order to change it.
“I believe that people are created by God to be male or female. Period,” he said.
The series of events shows that the policy was implemented with a focus on transgender people, and state officials’ “inability to proffer a legitimate justification for the policy suggests it was motivated by animus towards transgender people,” said Judge McHugh, who was nominated by President Barack Obama.
The policy could still pass scrutiny if officials showed it was related to a legitimate state interest. Oklahoma officials argued that the order helps them maintain accurate vital statistics about birth.
The panel assumed that is a legitimate state interest, but “it is not rationally related to the policy because even if transgender people amend the sex listed on their birth certificates, Oklahoma retains and has access to original birth certificates,” Judge McHugh wrote.
Officials also said they want to make sure all certificates list the correct sex of a person, but that position is undercut by the fact the state lets people amend the sex on their driver’s license, according to the panel.
