Federal appeals court upholds Tennessee's transgender birth certificate policy

A federal appeals court on Friday upheld a Tennessee policy prohibiting transgender individuals from changing the sex marker on their birth certificate.

In a 2-1 decision, the 6th Circuit U.S. Court of Appeals ruled the Tennessee policy is constitutional, writing that "there is no fundamental right to a birth certificate recording gender identity instead of biological sex." The majority called the policy, which is an outlier in the U.S., "a nondiscriminatory form of government speech embraced by some States about an undeniable historical fact."

An attorney from Lambda Legal, a civil rights organization focusing on the LGBTQ+ community representing the plaintiffs, said the group was disappointed in the decision and is considering next steps.

"The discrimination that is being suffered by transgender people in present-day America is something that, frankly, is reprehensible and shameful," said Omar Gonzalez-Pagan, senior counsel and health care strategist at Lambda Legal. "I hope that this decision doesn't give fodder to that, but rather allows us to galvanize to ensure that we can have a more inclusive and protective set of laws and policies."

Chief 6th Circuit Judge Jeffrey Sutton wrote the majority opinion and was joined by Judge Amul Thapar.

The opinion sides with Tennessee's argument that maintaining birth certificates that match a person's sex at their birth protects the integrity and accuracy of vital records, and the judges claim that allowing changes to the sex marker on birth certificates would mean that some birth certificates show biological sex and others show gender identity.

Sutton wrote that "policymaking in this area" was better left to to legislatures than the courts.

The dissenting opinion, written by Senior Judge Helene White notes that at least 43 U.S. states or territories allow changes to the sex marker on birth certificates under varying circumstances. White wrote that Tennessee's policy is inconsistent because individuals born with ambiguous genitalia are allowed to amend the sex marker on their certificates after their birth based on other characteristics.

"In so doing, the State denigrates those who do not conform to societal assumptions about what it means to be male or female, like transgender individuals, conveying that they are somehow less male or female because of the accidents of their birth — that no matter what, in the eyes of the State, their genitalia at birth alone determine their identities forevermore," White wrote.

Gonzalez-Pagan said that policies similar to Tennessee's have been found unconstitutional in every court where they had been challenged except for Tennessee's and a district court in Oklahoma.

“Whether someone can change the sex on their birth certificate is a matter for each state to decide,” Tennessee Attorney General Jonathan Skrmetti said in a statement. “While other states have taken different approaches, for decades Tennessee has consistently recognized that a birth certificate records a biological fact of a child being male or female and has never addressed gender identity.  We are grateful that the Court of Appeals agreed with the district court that any change in Tennessee's policy can only come from the people of Tennessee.”

Four transgender women born in Tennessee sued the state in 2019 seeking an order to compel the state to change their birth certificates. They sought to change a 1977 Tennessee law that expressly forbade amendments to birth certificates after an individual completed sex-reassignment surgery, in response to a federal law passed the same year recommending allowing such changes.

The plaintiffs said that having a birth certificate inconsistent with how they identify and present forces them to divulge their transgender status when applying for jobs or applying for a passport, which puts them at risk of harassment or violence, the majority opinion states. They argued that the policy violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

In her dissenting opinion, White agreed, writing, "Unlike the majority, I conclude that the Policy effectively discloses transgender status and thus implicates fundamental interests in bodily integrity and private sexual matters."

The decision comes just more than a year after the U.S. District Court for the Middle District of Tennessee ruled against the plaintiffs.

The appellate case was argued on May 2 in Nashville, a change from the 6th Circuit's home in Cincinnati.

Evan Mealins is the justice reporter for The Tennessean. Contact him at emealins@gannett.com or follow him on X, formerly known as Twitter, @EvanMealins.