Appeals court clears way for Oklahoma transgender birth certificate lawsuit

The 10th Circuit U.S. Court of Appeals on Tuesday overturned a federal district court judge’s dismissal of a case questioning whether Oklahoma can amend state-issued birth certificates. As a result, three people who identify as transgender are now able to file a lawsuit against the state for discrimination on the basis of sex and so-called gender identity.

What are the details of this case? Two biological women and a biological man, each of whom identify as members of the opposite sex, sued Oklahoma state officials for discrimination and privacy violations. In 2021, Gov. Kevin Stitt signed an executive order preventing the Oklahoma State Department of Health from amending birth certificates. Stitt issued the executive order after discovering that a person who identified as non-binary had the biological sex indicator removed from his or her state-issued birth certificate, according to the appeals court. “I believe that people are created by God to be male or female. Period,” Stitt said.

All three individuals bringing the lawsuit argued that they suffered from gender dysphoria and that part of how they chose to treat their gender dysphoria was to live openly as if they were members of the opposite sex, the court noted. They maintained that doing so required changing their identification documents so that they matched the individuals’ beliefs about their sex, as opposed to their actual biological sex. However, Stitt’s order made it challenging for them to change many of their documents since doing so would create a discrepancy between those documents and their birth certificates.

The three plaintiffs sued several state officials—Stitt, the commissioner of the Oklahoma State Department of Health, and the state registrar of vital records—arguing the law discriminated against them based on their sex and gender identity. They also argued that it abridged their right to privacy by forcing them to disclose their beliefs that they were transgender when they had to explain the discrepancy between the biological sex listed on their documents and the sexual identity they claimed for themselves.

What exactly did the court rule? Stitt’s executive order was a policy searching for a purpose, the court said. It ruled the state did not have any demonstrable reason to be interested in preventing people from having their birth certificates changed. The court also found that the order did intentionally target certain people based on their gender identity. It based its conclusion on Stitt’s comment about God only creating male and female genders.

Dig deeper: Read Christina Grube’s report in The Sift about how West Virginia’s governor was considering legislation protecting male and female designations on state-issued birth certificates.