Judge voids AZ law limiting gender changes on birth certificates

Arizona can’t refuse to amend the sex on someone’s birth certificate just because the person seeking the change has not submitted to transgender surgery, a federal judge has ruled.

U.S. District Court Judge James Soto in Tucson rejected arguments by the Arizona Department of Health Services that allowing such changes would undermine the reason the state issues such documents: to provide a vital record of births, including the sex of the newborn. He said the state would still have the original record, though it would be sealed from outside scrutiny.

Soto dismissed the claim that the records would have less meaning. He pointed out the health department already changes birth certificates when someone produces documentation from a physician of sex-change surgery.

Put another way, the ruling issued late Tuesday would no more undermine the validity of the records than what happens now.

The judge also questioned the different treatment provided by the state based solely on whether someone undergoes sexual reassignment surgery.

He said the evidence shows not everyone who doesn’t identify with the gender of their birth needs surgery to complete a gender transition

Yet Soto said state law presents transgender individuals who want an amended birth certificate with a choice: Undergo surgery that may not be medically necessary or have to live with — and present when required — a birth certificate that does not reflect their gender. The latter option, said the judge, forces those individuals to essentially “out’’ themselves as transgender, which he said violates their rights.

Soto now needs to decide an appropriate legal remedy. Attorney Rachel Berg of the National Center for Lesbian Rights, who is representing several individuals who filed suit, said that includes what evidence a transgender individual who has not had surgery would have to present to the health department to get an amended birth certificate.

There was no immediate response from the Arizona Department of Health Services.

Separate case on sports law

Less clear is the effect the new ruling will have on another legal fight paying out in a different federal courtroom: Whether the state can refuse to allow transgender girls who were born male to participate in interscholastic or intramural sports.

A 2022 state law says all sports must be labeled for males, females or coed. It says any team or sport designated as female “may not be open to the students of the male sex.’’

Berg, who also is representing several transgender girls in that case, who according to court records have not entered puberty, said she does not believe Soto’s ruling allowing them to get an amended birth certificate, by itself, will make any difference in that case. She said the definitions in that state law would still bar them from participating in sports.

But Republican state schools chief Tom Horne told Capitol Media Services he sees Soto’s ruling as undermining his defense of that 2022 law.

Social transitioning

At the heart of the new ruling is gender dysphoria, a condition where a person’s gender identity does not match the sex assigned at birth — the one of an individual’s birth certificate.

Berg told the court that one of the treatments is to align the person’s life with their gender identity. And while that could include hormone-replacement therapy and surgery, it often starts with things like changing their names, using different pronouns, and adopting clothing and grooming habits associated with their peers of the same gender identity.

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Soto agreed.

“Not every transgender person needs surgery to complete a gender transition,’’ he wrote. “Starting social transitioning and other recommended therapy may eliminate the need for any potential surgical intervention.’’

That is what’s happening in the case of the three individuals, all children, who sued, the judge said.

But absent a birth certificate that reflects their gender — something the state won’t issue absent surgery — they cannot continue their social transition, Soto said. The challengers said that presents problems when they are in situations where they are required to show their birth certificate.

“Their outward physical appearance will not fit with the gender marker on their birth certificate,’’ the judge said of their concerns. “Thus, if these documents are presented to others, they would, of course, be forced to involuntarily out themselves as transgender.’’

‘Unequal treatment’

He said that results in unequal treatment.

“For non-transgender individuals — the vast majority of whom have an accurate birth certificate — they are not presented with the unlawful choice of being stripped of their bodily autonomy or face discrimination, harassment, and potential violence,’’ Soto wrote.

He said there are studies to support the contention of transgender challengers that those who must present birth certificates that do not match their identity, such as in school registration, are subject to being harassed, discriminated against or assaulted.

“If transgender individuals are uniquely faced with the decision to either undergo surgery, or involuntarily disclose their transgender status by presenting an inaccurate birth certificate, their right to privacy is implicating under the current statutory and regulatory regime,’’ Soto wrote. On its face, he said, “the statute targets transgender individuals with an impossible and unconstitutional decision to either give up their bodily autonomy or disclose highly intimate details when they present these documents.’’

State health officials had argued that the statute does provide a work-around: Individuals can go to court and seek an order directing the agency to issue an amended certificate.

But Soto said the record shows state judges have also required some proof of surgery to issue their orders. Even if they did not, Soto said it still imposes a burden.

“Transgender individuals must sue the government, navigate the litigation process and hope the courts seal the documents to protect their privacy,’’ he said.

Soto also said there is precedent for his ruling about adjusting government records. He said the U.S. State Department and the Social Security Administration allow applicants to change the gender on their identity documents without proof of surgery.

The Arizona Department of Transportation allows a change in gender designation on driver’s licenses as long as there is a statement by a licensed physician that the person is “irrevocably committed to the gender-change process.’’