Transgender individuals have an absolute right to get their Arizona birth certificates amended without having to first undergo surgery, an attorney representing them told a judge.
Rachel Berg of the National Center of Lesbian Rights told U.S. District Court Judge James Soto on Tuesday there is no constitutional basis for existing Arizona laws that limit when a birth certificate can be altered to reflect the individual’s gender identification.
“For many transgender individuals … surgical treatment may never be medically or psychologically appropriate to treat their gender dysphoria,’’ Berg said, referring to a condition where a person’s gender identity does not match the sex assigned at birth. But she said Arizona law requires surgery before the Department of Health Services will alter what shows up on a birth certificate, a document people use to verify their identification.
That violates the constitutional rights of the individuals involved, Berg told the judge.
Arizona Assistant Attorney General Nick Acedo acknowledged that language about surgery as a precursor to altered birth certificates exists in state law.
But he pointed out there is another section, adopted in 2004, that allows an individual to get a court order directing the health department to make the change. Acedo said Jennie Cunico, whom Gov. Katie Hobbs tapped to head the health department, has said the agency will always honor such requests.
However, there have been judges who refused to grant such an order absent proof of gender reassignment surgery.
Even if that were not the case, Berg said it could be a burden to have to go through a court process, hire lawyers, and have the documents and hearings be open to the public.
Most ideal, according to the lawsuit she filed, would be a private administrative process within the health department. But Berg said that is an argument for another day if Soto voids the current surgical requirement.
What the judge rules will have an effect on more than the children who brought the original lawsuit. Soto has agreed to let Berg represent all transgender people born in Arizona, now and in the future.
The outcome of the case could prove to be even broader.
If Soto blocks the state from enforcing its current requirement for sex-change surgery before a birth certificate can be altered, it would allow others who are transgender to seek to have a new designation of their sex on those certificates.
That would mean there would be an officially issued state document that would show transgender girls enrolled in schools as girls. That would undermine efforts by Republican state schools chief Tom Horne and key GOP lawmakers in a separate federal court lawsuit to defend a 2022 law. That law bars transgender girls, whom those Republican officials argue are biological boys, from participating in girls’ sports.
It also could affect perennial legislative efforts to force transgender individuals to use a school restroom or shower that corresponds to their sex assigned at birth — the one currently on their birth certificates.
At the heart of the case is the argument that one of the treatments for those with gender dysphoria is to align the person’s life with their gender identity. That could include hormone-replacement therapy and surgery, but advocates said it starts with “social transition,’’ such as changing of names, using different pronouns, and adopting clothing and grooming habits associated with their peers of the same gender identity.
That’s where the birth certificates come in.
“Having identity documents that reflect a transgender person’s assigned sex rather than their gender identity increases the likelihood that a person’s transgender status will be disclosed to others, exposes them to a significant risk of mistreatment, and undermines the health benefits of their social transition,’’ the lawsuit states. “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.’’
The judge’s ruling ultimately could depend on whether he considers the Arizona statutes requiring proof of surgery to alter a birth certificate a violation of constitutional provisions providing equal protection under the law.
On one hand, Berg acknowledged, nothing in the law specifically applies it only to transgender individuals, whom she said are protected under sex discrimination laws. But she said it’s clear on its face these are the only ones affected.
“Who else is going to voluntarily seek out a sex-change operation?’’ Berg said.
She told the judge that means the only way for the statute to survive a constitutional challenge is for the state to prove there’s a justification for crafting a law that targets transgender people and that the statute is “substantially related’’ to that goal.
Acedo, for his part, said the statute has nothing to do with discrimination and everything to do with accurate records.
He said Arizona has been creating and preserving “vital records’’ for more than 100 years.
What is included in a birth record is “the external genitalia of the person at the time of birth as observed by a medical professional present at the birth.’’ That information is recorded in the birth certificate as male, female or “not yet determined.’’
None of that has any bearing on how someone self-identifies, Acedo argued.
“The ‘sex’ field (on the birth certificate) does not record or predict a person’s gender identity, which the parties agree is something different,’’ Acedo said. He said no one is denied a constitutional right.
“It also does not prevent any person from living autonomously,’’ he said. “And it certainly does not force anyone to undergo a medical procedure.’’
Acedo noted that if an individual wants an amended birth certificate, there still is the option to seek a court order.
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There is no standard, however, by which a judge gets to decide whether to grant such a request. In fact, Acedo said, the state Court of Appeals said trial judges have “wide discretion’’ in whether to approve or deny it.
But what’s really at issue, he told the judge, is that the litigation fails to understand the purpose of a birth certificate.
Acedo agreed that people do use birth certificates to prove their identity.
“But the primary, if not exclusive, purpose of the statute is to create and preserve historical vital records,’’ he said.
Berg said that claim is undermined by the fact Arizona law does allow alterations.
“This defies the logic of the surgical requirement itself,’’ she told Soto.
Berg said that even if someone does get an amended birth certificate, the health department still keeps the original version sealed in its own records.
“So the historical fact is already preserved,’’ she said.
There is another factor that could be an issue when the judge rules, which he said he expects to do in about two months.
A 2022 law signed by Republican then-Gov. Doug Ducey bars doctors from performing “irreversible gender reassignment surgery’’ on minors — the procedure that is now first required to allow the health department to change a birth certificate absent a court order.
