A federal judge has dismissed a lawsuit seeking to force the state of Tennessee to allow transgender plaintiffs to change their birth certificates to match their gender identity, the Associated Press reported.
U.S. District Judge Eli Richardson wrote that the word "sex," when it comes to birth certificates, means "external genitalia at birth." The judge also said that a birth certificate does not become inaccurate if the person's gender identity later in life is a mismatch.
"The instant case is not grist for a broad-based discussion about transgenderism or the status and rights of transgender persons in Tennessee or the United States," wrote United States District Judge Eli Richardson in a memorandum opinion.
Judge Richardson noted that the case involved a "discrete legal dispute over the constitutionality of a specific alleged policy of the State of Tennessee (based on a longstanding Tennessee statute) concerning birth certificates in particular."
"Nothing stops Plaintiffs from announcing their gender to the world, irrespective of their birth certificates’ designation of sex (based on birth appearance)."
The lawsuit, filed in 2019, challenged Tennessee's law that generally prohibits the birth certificate changes the plaintiffs sought, the AP reported. The law had been in place since 1977.
The lawsuit, brought by Lamda Legal, said the policy could be dangerous. In their view, a transgender person could be subjected to harassment or violence if the person presented a birth certificate that did not match with their gender identity.
The plaintiffs' argument was that Tennessee's policy violated the equal protection and due process clauses of the U.S. Constitution. They argued that First Amendment issues were also at stake because the law has the effect of "forcing transgender people through their birth certificates to identify with a sex that is not who they are."
"At a time where we are under attack, I am devastated to see that after years waiting for this decision, the court has refused to allow us the opportunity to prove our case. Tennessee’s discriminatory birth certificate policy has not only gravely impacted my life, but also presents a roadblock for all transgender Tennesseans. We deserve recognition and dignity from the government just as much as every other Tennessean," said Memphis-based plaintiff Kayla Gore, 37, in a statement through the firm representing the group.
"It’s hard to exist as a transgender person in Tennessee at this moment. To have the court join state officials to willfully not see us for who we are adds to that burden. All my life I’ve been carrying an inaccurate birth certificate, complicating my life and making me feel not seen by my government. Today, my heart is saddened as the court has refused to address the harms imposed by Tennessee’s policy, but I will continue to fight against the discrimination that continues to be perpetuated by the state of Tennessee," plaintiff Jaime Combs, 54, said in the statement.
"We are very disappointed in yesterday’s decision, which fails to acknowledge the incontrovertible truth that birth certificates are the quintessential identity document. Tennessee’s discriminatory birth certificate policy forces transgender Tennesseans to out themselves and to use an identity document inconsistent with who they are. This is wrong," said Lamda Legal Counsel Omar Gonzalez-Pagan in a statement Friday.
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A New England Journal of Medicine article published last week states that birth certificates no longer should include sex identification "given the particularly harmful effects of such designations on intersex and transgender people."
The article said birth certificates in 1949 underwent a revision that "created a line of demarcation. The legally identifying fields above the line appear on certified copies of birth certificates, whereas information in the fields below the line, which is used for statistical purposes, is deidentified and reported in the aggregate. Race and parents' marital status, for example, were moved below the line of demarcation to permit self-identification and to avoid stigma, respectively."
Simply put, the authors said it's time to move sex designation below the line.
More from the article:
Designating sex as male or female on birth certificates suggests that sex is simple and binary when, biologically, it is not. Sex is a function of multiple biologic processes with many resultant combinations. About 1 in 5000 people have intersex variations. As many as 1 in 100 people exhibit chimerism, mosaicism, or micromosaicism, conditions in which a person's cells may contain varying sex chromosomes, often unbeknownst to them.2 The biologic processes responsible for sex are incompletely defined, and there is no universally accepted test for determining sex.
Assigning sex at birth also doesn't capture the diversity of people's experiences. About 6 in 1000 people identify as transgender, meaning that their gender identity doesn't match the sex they were assigned at birth. Others are nonbinary, meaning they don't exclusively identify as a man or a woman, or gender nonconforming, meaning their behavior or appearance doesn't align with social expectations for their assigned sex.
Sex designations on birth certificates offer no clinical utility; they serve only legal — not medical — goals. Certainly, knowing a patient's sex is useful in many contexts, when it is appropriately interpreted. Sex modifies the clinical suspicion of a heart attack in the absence of classic symptoms and is a proxy for many undefined social, environmental, and biologic factors in research, for example. But, in each of these applications, sex is merely a stand-in for other variables and is not generally ascertained from a birth certificate.
The piece emphasizes that "keeping sex designations above the line causes harm."
More from the article:
For people with intersex variations, the birth certificate's public sex designation invites scrutiny, shame, and pressure to undergo unnecessary and unwanted surgical and medical interventions.1Sex assignments at birth may be used to exclude transgender people from serving in appropriate military units, serving sentences in appropriate prisons, enrolling in health insurance, and, in states with strict identification laws, voting. Less visibly, assigning sex at birth perpetuates a view that sex as defined by a binary variable is natural, essential, and immutable. Participation by the medical profession and the government in assigning sex is often used as evidence supporting this view. Imposing such a categorization system risks stifling self-expression and self-identification.
People with intersex variations may undergo surgeries before they are old enough to consent, often losing reproductive capacity and sexual sensation as a result. Transgender people receive worse health care and have worse outcomes than cisgender people.3 Health care professionals have a particular duty to support vulnerable populations who have historically been harmed by clinicians and by the medical system in general.
The authors of the article go further and address safety concerns related to transgender individuals using locker rooms and restrooms of their choice. "But fears about privacy and safety violations in public accommodations aren't supported by evidence. A study examining the effects of a Massachusetts law protecting transgender people in public accommodations revealed no increase in violations. Meanwhile, many intersex and transgender people avoid public spaces, including restrooms, for fear of mistreatment."
The authors also say that if sex designations are removed from birth certificates, it would allow applicants for passports and other government-issued documents "to identify their gender without medical verification."
A number of article commenters questioned the authors' conclusions:
Bill H.4750, described as "An Act to ensure legal parentage equality," changes language concerning paternity, children born out of wedlock, as well as mothers and fathers.
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