A federal judge has ruled that Idaho must provide birth certificate changes to transgender people reflecting their gender identity. The decision recognizes that transgender people are entitled to heightened protection under the law because of their history of discrimination.
Two transgender women represented by Lambda Legal, F.V. and Dani Martin, brought suit against Idaho because the state refused to amend their birth certificates to reflect their lived gender identity. This is despite the fact that they had both changed most of their other documentation, including their driver’s licenses and social security records. Their birth certificates, however, have prevented them from changing all of their documentation. Thy also expose them to discrimination and violence by inherently outing them as transgender.
The case was not contentious. Idaho responded that it was willing to change its policies to accommodate the women but that it required a court order to do so. Because the state was not arguing that it had any justification for the policy, the case could have been decided according to what’s called “rational basis” review. Nevertheless, U.S. Magistrate Judge Candy Dale still wrote an opinion noting that cases assessing whether transgender people are subject to unfair treatment should be considered with heightened scrutiny. Gender identity, she ruled, is a quasi-suspect class (i.e. a group vulnerable to unconstitutional discrimination) like sex.
“These laws give certain people access to birth certificates that accurately reflect who they are, while denying transgender people, as a class, access to birth certificates that accurately reflect their gender identity,” she wrote. “Therefore, as Defendants concede, Plaintiffs’ equal protection claims are valid.”
In 1977, the U.S. Court of Appeals for the Ninth Circuit had ruled that cases of discrimination against transgender people did not warrant heightened scrutiny. The reasoning employed in that Case, Dale wrote, “relies on markedly outdated notions of sex and gender that strongly indicate, that should it be presented today, the same holding would not issue.”
She briefly recounted the scientific and medical advances in the understanding of transgender identities since then and concluded they must impact how the court assesses such claims. “Despite the ongoing study to more fully understand the impact of differences in chromosomes, brain structure and chemistry, there is medical consensus that gender identity plays a role in an individual’s determination of their own sex,” Dale explained. “Therefore, to conclude discrimination based on gender identity or transsexual status is not discrimination based on sex is to depart from advanced medical understanding in favor of archaic reasoning.”
The decision requires the Idaho Department of Health and Welfare to establish a new policy for issuing revised birth certificates to transgender people that can survive a heightened scrutiny analysis. This includes ensuring that the reissued birth certificate does not include a record of amendment of the listed sex or name change so as not to out the transgender individual.
Dale previously wrote the order overturning Idaho’s ban on same-sex marriage back in 2014.
As the opinion notes, Idaho was one of only four states with no mechanism for changing the sex on birth certificates. The other three are Kansas, Ohio, and Tennessee. Many other states require burdensome hurdles such as proof of surgical transition before an amended certificate will be issued.