In a 2-1 decision last Friday, the Sixth Circuit Court of Appeals upheld Tennessee’s policy preventing someone from changing a birth certificate to match their gender identity. The state has broad discretion as to how to keep its vital records, the court said, and it isn’t required to accept the individual’s view of what information a birth certificate should or should not contain.
We’ve seen how the transgender culture wars have invaded female sports, bathrooms, pronouns, gender-affirming care for minors, secret social transitioning in schools—and now, birth certificates.
In the past several years, States have begun modifying their birth certificate policies to permit sex designations to conform to gender identity. Those policies are “all over the map,” the court said. By way of reference, eleven states now allow changes to birth certificates based solely on the applicants’ stated current gender identity, but Tennessee isn’t one of them.
In Tennessee, as in every state, each time a baby is born, a birth certificate is created that identifies its biological sex. But while certain changes—e.g., a new name—are allowed, the state “treats the sex listed on the birth certificate as a historical fact unchangeable by an individual’s transition to a different gender identity.”
In other words, merely saying that you identify as the opposite sex doesn’t require the State to make it so on your birth certificate.
A group of transgender plaintiffs whose sex listed on their birth certificate conflicted with their gender identity challenged the policy. They said it “stigmatized” them and increased the risk that they would suffer “discrimination, distress, harassment or violence.” The district court rejected their claims and they appealed to the Sixth Circuit, arguing that Tennessee’s policy violated their constitutional rights.
To be clear, the plaintiffs weren’t challenging the state’s initial designation of sex on each birth certificate. They were challenging the State’s amendment policy refusing to allow them to change that designation based on their say-so.
And in that regard, the court said, Tennessee’s birth certificate policy treats applicants alike. Just because Tennessee classifies newborns as male or female on their birth certificates doesn’t mean the state is discriminating against transgender people based on sex.
Again, it’s the amendment policy the plaintiffs challenged, and it does no such thing:
No person, male or female, may amend a birth certificate simply because it conflicts with their gender identity. Tennessee does not guarantee anyone a birth certificate matching gender identity, only a certificate that accurately records a historical fact: the sex of each newborn. [emphasis added]
Incidentally, it was good to see the court put the brakes on Bostock v. Clayton, the US Supreme Court case that transgender advocates keep trotting out to support their claims of sex discrimination. In Bostock, the Court held that an employer who fires an employee “simply for being … transgender” violates Title VII’s ban on sex discrimination. But Bostock’s ruling, premised on Title VII, doesn’t apply here, and it wouldn’t help anyway, the court said: “No matter the biological sex of an individual, the Tennessee amendment policy would remain the same.”
It’s within each state’s power to decide “what facts to record in a government-owned record—to ‘say what it wishes,’ ” the court explained, rejecting the plaintiffs’ arguments that the policy discriminated against them based on sex:
[A]bsent an existing fundamental right, the Constitution does not require the States to embrace the plaintiffs’ view of what information a birth certificate must record. That’s why Tennessee’s choice to record sex—not gender identity—does not withhold a constitutionally prescribed benefit. Its amendment policy treats both sexes equally … and there is no fundamental right to a birth certificate recording gender identity instead of biological sex.
The court also nixed the plaintiffs’ other constitutional claims. Transgender persons don’t constitute a suspect class so as to trigger a heightened level of review of the birth certificate policy, it said. And there is no “deeply rooted right” to a birth certificate matching one’s gender identity that substantive due process would protect.
Once the State of Tennessee decided to create birth certificates, it had broad discretion over what information they included, “in what they should say, what they should record, what language they should use, and when, if at all, they should be amended. ” The platform, the court said, belongs to the State.
And it should stay there. As this very based opinion points out, the debates over the transgender policies roiling the country should be resolved by the people’s vote, not shut down by life-tenured judges.
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