A lawsuit challenging the state’s process for changing gender markers on birth certificates now has the potential to benefit all transgender Arizonans.
On Thursday, a federal judge in Tucson approved a class action request in a lawsuit first filed three years ago by a trio of trans minors and their parents who argued that the rules for editing their birth certificates are harmful and intrinsically unfair.
Currently, state law requires either a court order or a doctor’s statement verifying a chromosomal count or “sex change operation” before a birth certificate can be amended. Expanding the case via a class action means every transgender Arizonan stands to benefit, not just the initial plaintiffs.
“We are thrilled that this case will now apply to all transgender individuals born in Arizona who wish to amend their birth certificates to accurately reflect their gender identity,” Rachel Berg, a staff attorney for the National Center of Lesbian Rights, which is representing the minors, said in an emailed statement. “Access to correct identity documents is critically important to the health and well-being of transgender people.”
What’s the case about?
In 2020, a group of trans minors and their parents took the Arizona Department of Health Services to court over the process for editing birth certificate gender markers. The trio argued that making the process more difficult for trans minors violates several federal protections, including the equal protection rights guaranteed by the Fourteenth Amendment and their due process rights to privacy and the right to choose whether to undergo medical treatment.
“Barring transgender youth from obtaining a corrected birth certificate places them in a disfavored class,” reads the brief. “Unlike other youth, whose birth certificates match who they are, transgender youth are forced to use birth certificates that do not match their sex.”
Trans minors rarely receive surgical care to transition, attorneys wrote at the time, which creates an unreasonable hurdle for them. Today, after the Republican-controlled legislature passed a gender-affirming surgery ban in 2022, it’s in fact illegal for minors in Arizona to obtain a surgery for the purpose of transitioning. For many trans people, attorneys added, gender-affirming surgery is cost-prohibitive and not all trans people need or want surgical procedures to transition successfully.
Attorneys noted that birth certificates are critical documents for minors with no other government-issued identifications. They’re often used to participate in school activities or to acquire other important documents, like driver’s licenses and passports. Preventing trans minors from having accurate birth certificates means every time the certificates are used for official purposes risks forcing them to come out to strangers, which can put them in danger.
“Depriving transgender young people of birth certificates that accurately reflect who they are forces them to disclose their transgender status — information that is private and sensitive — without their consent whenever they need to rely on birth certificates to establish their identity,” wrote attorneys.
A 2015 national survey conducted by the National Center for Transgender Equality found that nearly one-third of respondents who presented an identity document that didn’t match their perceived gender experienced harassment, physical attacks or were denied services.
Why did the judge agree to expand its reach?
Federal Judge James Soto appeared receptive to the arguments that the requirement to obtain a “sex-change operation” unnecessarily burdens trans Arizonans, especially when considering it in light of the widely-accepted treatment for gender dysphoria.
The medical condition is characterized by intense distress when a person’s gender identity and biological sex are incongruent. Gender-affirming care is the recommended treatment, and it includes social acceptance, such as accurate gender markers on official documents.
“Consistent with medical and psychological treatment for gender dysphoria, transgender individuals seek to align their appearance and identification documents (such as birth certificates, driver’s licenses, passports, etc.) with their gender identity,” Soto wrote. “For many transgender individuals, surgical treatment may never be medically or psychologically appropriate or necessary to treat their gender dysphoria. However, Arizona law requires Arizonans to get a ‘sex change operation’ to be permitted to change the gender marker on their birth certificate.”
That conflict isn’t unique to the trans minors filing the lawsuit, Soto noted, as it also affects other trans Arizonans, including adults who haven’t undergone surgery but still wish to change their gender marker. And there is a significant enough population of trans people in the Grand Canyon State to warrant a class action that covers all of them.
“Plaintiffs have submitted demographic studies reflecting that there are likely over 30,000 transgender individuals in Arizona, and there are likely thousands of transgender individuals who would amend their Arizona birth certificates through a private administrative process if it was available in Arizona,” Soto concluded.
To qualify for a class action, the affected population must number at least 40. A 2022 report from the UCLA Williams Institute estimated that as many as 41,200 transgender adults call Arizona home.
What are the next steps?
Berg told the Mirror that the case is approaching its final stages of litigation, but an appeal from the state health department might also extend that timeline. And while the lawsuit was originally filed under a Republican administration and now Democrats hold office, the Department of Health Services remains unwilling to settle, she said. But Berg is confident that the law will ultimately be overturned as unconstitutional.
“We are confident that this surgical requirement violates the equal protection and due process clauses of the Fourteenth Amendment,” she said.
The Department of Health Services declined to comment.
Soto has set a deadline for summary judgment motions on Sept. 30.
Depending on the outcome, the case could throw a wrench in ongoing efforts from Republicans to restrict the behavior of trans students. Superintendent of Public Instruction Tom Horne, a Republican, and GOP legislative leaders are currently embroiled in a legal battle to ban trans girls from joining girls’ athletic teams. And Republican lawmakers have repeatedly attempted to pass laws that bar trans students from using school facilities that match their gender identity or prohibit teachers from respecting students’ preferred pronouns. The enforcement mechanism behind all of these attacks is the gender marker on birth certificates.
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