Most states have reached accommodations with transgender activists to have the ability to alter their birth certificates, but three states are resisting the push, battling to keep their traditional policies in place.
Tennessee is the latest to face a challenge after Lambda Legal, a pro-LGBTQ organization, sued last week. That joins challenges to Kansas and Ohio.
Lambda says blocking changes to birth certificates can lead to an invasion of privacy, with transgender individuals facing situations when they have to show their birth certificates and reveal their birth status.
Kayla Gore, one of four people challenging Tennessee’s policy, said she faced harassment at her job after she showed her birth certificate, which registers her as male. She said that led to “awkward, deeply personal and invasive questions.”
“Few things are as essential to one’s personhood and navigating the world as being able to correctly and accurately identify one’s gender,” the four plaintiffs said in the new lawsuit.
The state does allow changes to driver’s licenses, with transgender persons allowed to register the gender they identify as, rather than what’s on their birth certificate.
A representative from the Tennessee Department of Health, which maintains the state’s vital records, said the department declined to comment on its policy, citing the new lawsuit.
In Ohio, which is also battling Lambda, state officials say they have an interest in preserving the record of an individual’s sex at birth.
Kansas officials argued in court papers it’s up to the state legislature to change the policy — not the state Health Department, which is a named defendant in that legal battle.
Michael Boucai, a law professor at the University at Buffalo, said the newly filed lawsuit against Tennessee has a fairly high chance of success.
“I think that even a very conservative judge can be persuaded that Tennessee’s outright ban violates transgender individuals’ right to privacy — not just their right to make fundamentally important decisions about their lives and identities, but their right to keep those decisions private,” he said.
Lambda has won changes to policies in Idaho and Puerto Rico after courts ruled they violated the right to privacy for transgender individuals, joining 46 other states and the District of Columbia.
Omar Gonzalez-Pagan, an attorney from Lambda Legal, said Idaho, Montana, California, Oregon, Nevada, New Jersey and Washington allow changes simply through self-attestation.
Some mandate a doctor’s certification that an individual’s gender assigned at birth is in conflict with his gender identity. Other states require affirmation that the individual has undergone sex change surgery.
The federal government doesn’t manage birth certificates but does permit transgender individuals to change their gender designation on Social Security cards and passports.
The State Department and the Social Security office ask for doctor certification but don’t specify any particular treatment, Mr. Gonzalez-Pagan said.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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