Oklahoma Requests Supreme Court Review of Birth Certificate Gender Identity Policy Ruling
The Tenth Circuit determined that a state policy prohibiting gender identity designations on birth certificates is in violation of the U.S. Constitution.
Oklahoma is seeking the U.S. Supreme Court’s approval for its policy mandating that birth certificates reflect an individual’s biological sex at birth instead of their gender identity.
The petitioner is Governor Kevin Stitt (R) of Oklahoma. The respondents include Rowan Fowler, Allister Hall, and Carter Ray, identified in legal documents as “transgender individuals without amended Oklahoma birth certificates … [whose] sex designated on their birth certificates does not correspond with their gender identities.”
“From 2018 until late 2021, over 100 transgender individuals received amended Oklahoma birth certificates,” the appeals court stated.
Following the issuance of an amended birth certificate with a gender-neutral designation, Stitt enacted an executive order in 2021 mandating OSDH to cease the revision of birth certificates for changing sex designations.
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“I believe that individuals are created by God as either male or female. Nothing more,” Stitt articulated at that time. He asserted he would pursue “whatever action necessary to uphold Oklahoma values and our way of life.”
Prior to this, individuals identifying as transgender could modify their birth certificates with a court order, but following the executive order, OSDH ceased to honor such requests, according to the appeals court.
Fowler, Hall, and Ray provided court orders to the OSDH, requesting amendments to their designated sex on official documents, but the agency declined, citing Stitt’s executive order as the reason.
In March 2022, the respondents initiated a lawsuit in federal district court under 42 U.S. Code Section 1983, a federal statute that enables individuals to sue the government for civil rights infringements.
They argued that the state’s policy contravened the Equal Protection and Due Process Clauses of the 14th Amendment, indicating it discriminated against them based on their sex and transgender identity, as stated by the appeals court.
The three individuals expressed that “without amended birth certificates, they are compelled to disclose their transgender status when presenting their birth certificates to others,” and that these “involuntary disclosures infringe upon their substantive due process right to privacy.”
Substantive due process safeguards personal and relational rights, distinct from economic rights, that are not clearly articulated in the Constitution’s Bill of Rights, rooted deeply in U.S. history and tradition, especially in light of evolving social norms.
The district court ruled in favor of the state, dismissing the lawsuit.
The Tenth Circuit upheld the dismissal of the substantive due process claim but overturned the dismissal of the equal protection claim.
The appeals court concluded that “Bostock’s reasoning implies that the [birth certificate] Policy intentionally discriminates against [respondents] based, in part, on sex” as it “intentionally differentiates [respondents] due to their sex assigned at birth.”
Oklahoma Attorney General Gentner Drummond stated that he believes the state’s birth certificate policy is constitutional.
He pointed out that the Tenth Circuit’s decision contrasts with a Sixth Circuit ruling that upheld a similar birth certificate policy in Tennessee.
“The Constitution does not prevent states from permanently documenting sex on a birth certificate. A newborn’s sex is an objective fact that has historically been recorded and preserved in state files,” said the petition.
“Moreover, the Fourteenth Amendment does not necessitate Oklahoma to record gender identity—years post-birth—on birth certificates.”
Oklahoma Attorney General Gentner Drummond during an interview in Oklahoma City on Feb. 1, 2023. Sue Ogrocki/AP Photo
The Epoch Times reached out to attorneys for the respondents at Lambda Legal, a nonprofit based in New York City, but received no response by the time of publication.
“This ruling represents a significant victory for the transgender community in Oklahoma and across the nation, sending a clear message to legislators everywhere that courts will not tolerate unconstitutional discrimination against transgender individuals,” said Lambda Legal senior counsel Peter Renn at that time.
“This decision arrives at a crucial juncture during a rise in anti-transgender policies throughout the country. This includes efforts, like the one here, to undermine the fundamental right of transgender people to amend their identity documents to reflect their true selves, which can subject them to harassment, abuse, and physical danger.”
It remains uncertain when the Supreme Court will address the new petition.
