NASHVILLE, Tenn. (AP) — A federal appeals court ruled 2-1 Friday that Tennessee does not unconstitutionally discriminate against transgender people by not allowing them to change the gender designation on their birth certificates.
“There is no fundamental right to a birth certificate that records gender identity rather than biological sex,” said a judge of the 6th U.S. Court of Appeals Jeffrey Sutton wrote for the majority in the decision that upheld a 2023 district court ruling. The plaintiffs failed to show that Tennessee's policy was born out of hostility toward transgender people, since it has been in effect for more than half a century and “long predates medical diagnoses of gender dysphoria,” Sutton wrote.
He noted that “state practices are all over the map.” Some allow birth certificate changes with medical proof of surgery. Others require less medical proof. Only 11 states currently allow a birth certificate change based on a declaration of gender identity, which is what plaintiffs in Tennessee are seeking.
Birth certificates in Tennessee reflect the sex assigned at birth, and that information is used for statistical and epidemiological activities that inform the delivery of health services across the country, Sutton wrote. “How, the question is, could a government maintain uniform data of any kind when the varying opinions of its citizens about changing societal norms shape the government's choices about language and what information to collect?”
The plaintiffs — four transgender women born in Tennessee — argued in court documents that gender is not properly determined by external genitalia, but by gender identity, which they define in their argument as “a person’s core internal sense of his or her own sex.” The lawsuit, first filed in 2019 in a federal court in Nashville, alleges that Tennessee’s ban serves no legitimate government interest while exposing transgender people to discrimination, harassment and even violence when required to present birth certificate identification that conflicts with their gender identity.
In her dissenting judgment, Judge Helene White agreed with the plaintiffs, represented by Lambda Legal.
“Forcing a transgender person to use a birth certificate that states the sex assigned at birth will leave others questioning whether the person is the person listed on the birth certificate,” she wrote. “This inconsistency also invites harm and discrimination.”
Lambda Legal did not immediately respond to emails seeking comment on Friday.
Tennessee Attorney General Jonathan Skrmetti said in a statement that the issue of changing the gender designation on a birth certificate should be left up to the states.
“While other states have taken different approaches, Tennessee has consistently recognized for decades that a birth certificate records a biological fact that a child is male or female, and has never addressed gender identity,” he said.
