(CN) — The 10th Circuit Court of Appeals on Tuesday breathed new life into a lawsuit targeting an Oklahoma policy that forbids residents from amending birth certificates to reflect their gender identity.
The policy was enacted by Republican Governor Kevin Stitt in 2021, who issued an executive order after learning that a person had obtained a gender-neutral birth certificate from the Oklahoma State Department of Health as part of a legal settlement. At the time, Stitt said, “I believe that people are created by God to be male or female. Period.”
Stitt’s order attracted a lawsuit almost immediately from two transgender men and one transgender woman, who asserted claims under the equal protection and due process clauses of the 14th Amendment.
Among other claims, the plaintiffs say the policy prevented them from amending or obtaining other legal documents and professional certificates, while also forcing them into unwelcome and uncomfortable conversations about their gender identity.
But in June 2023, U.S. District Judge John W. Broomes, an appointee of President Donald Trump, granted the state’s motion to dismiss the case, finding the state’s refusal to change sex designations on birth certificates “did not impair the ability of transgender people to express their gender identity or compel them to speak any message.”
After hearing oral arguments in the case in March 2024, a three-judge panel Tuesday reversed the dismissal of the equal protection claim, while affirming the lower court’s dismissal of plaintiffs’ substantive due process claim.
The panel, which included U.S. Circuit Court Judges Harris L. Hartz, Carolyn B. McHugh and Richard E.N. Federico — appointees of Presidents George W. Bush, Barack Obama and Joe Biden, respectively — concluded the policy violates the equal protection clause by “purposefully discriminating on the basis of transgender status and sex.”
The judges agreed with the plaintiffs’ argument that the policy was facially discriminatory because, while it applies to everyone, it only harms transgender people. They declined to address whether the policy had a disparate impact, stating that the plaintiffs “have alleged facts from which we can reasonably infer discriminatory purpose.”
The circuit panel also determined the state was unable to justify the policy. Further, Governor Stitt’s own actions and words regarding the policy demonstrated it was implemented “at least in part because of the effect it would have on transgender people.”
“When read in context, Governor Stitt’s statement about God creating people to be male or female demonstrates disfavor with people amending their birth certificates to change the sex designation,” the order says. “And Governor Stitt made this statement shortly before directing OSDH to stop amending the sex listed on transgender individuals’ birth certificates.”
Similarly, the panel agreed the policy plausibly discriminates on the basis of sex.
“Plaintiffs have met their burden of negating every conceivable basis that might support the policy,” the order continues. “To be sure, rational basis is a low bar, and the challenged state action need not be perfect. But there must be some rational connection between the policy and a legitimate state interest. There is no rational connection here — the policy is in search of a purpose.
The plaintiffs also sought to argue their due process rights were violated when they were “forced to involuntarily disclose their transgender status when showing their original birth certificates to third parties.” The judges disagreed, accepting the defendants’ argument that the state is not responsible for the plaintiffs’ involuntary disclosures.
“Plaintiffs have adequately alleged that transgender people without amended birth certificates face difficult choices,” the judges wrote. “But to assert a substantive due process claim, plaintiffs needed to allege that their involuntary disclosures amount to state action. They failed to do so.”
Judge Hartz, the Bush appointee, wrote a partial dissent, agreeing with the majority opinion but rejecting the argument the policy amounts to sex discrimination. Hartz noted the sex discrimination argument is “a difficult one,” hoping that “perhaps one day, we will get clarification from the Supreme Court.”
“The requisite intent may also be obvious with respect to a generally applicable law, as when the law on its face treats members of a class differently from others,” Hartz wrote.
“But when, as with the policy, the generally applicable law does not on its face distinguish between classes of people, proof of intent is more complicated. After all, there may be many unintended consequences of a generally applicable law, and the law may have a disparate impact on a class that was not the purpose of the law.”
Parties in the suit did not immediately return requests for comment Tuesday.
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