By Nate Raymond
(Reuters) – A divided federal appeals court on Friday rejected a constitutional challenge to Tennessee’s decades-old policy of not allowing people born in the state to amend their birth certificates to reflect their gender identity.
A 2-1 panel of the 6th U.S. Circuit Court of Appeals held that the U.S. Constitution did not require the Republican-led state to change the biological sex listed on the birth certificates of four transgender women born in Tennessee.
The state is among only a handful nationally that categorically bars individuals from amending the sex on their birth certificates.
The transgender women argued Tennessee’s policy violated their due process rights and infringed on equal protection rights guaranteed by the U.S. Constitution’s 14th Amendment by discriminating on the basis of their sex and transgender status.
But Chief U.S. Circuit Judge Jeffrey Sutton, writing for the majority, concluded that a lower-court judge rightly rejected the lawsuit, saying there was no fundamental right to a birth certificate recording gender identity instead of biological sex.
“The States have considerable discretion in defining the terms used in their own laws and in deciding what records to keep,” he wrote. “Tennessee did not exceed that discretion in distinguishing biological sex from gender identity in its birth certificate records.”
Tennessee’s Republican attorney general, Jonathan Skrmetti, welcomed the ruling, saying “any change in Tennessee’s policy can only come from the people of Tennessee.”
Omar Gonzalez-Pagan, a lawyer for the plaintiffs at the LGBTQ rights group Lambda Legal, said they were disappointed and considering their options. “Nobody is harmed by our plaintiffs having birth certificates reflecting who they are,” he said.
Gonzalez-Pagan said the ruling conflicted with a decision last month by the Denver-based 10th U.S. Circuit Court of Appeals that revived a lawsuit challenging an Oklahoma policy prohibiting transgender people from changing their birth certificates to match their gender identity.
Both judges in the 6th Circuit ruling’s majority were appointed by Republican presidents while the dissenting judge, Helene White, was initially nominated by Democratic former President Bill Clinton before ultimately being appointed by his Republican successor, George W. Bush.
White said the policy was based on generalizations of what it meant to be male and female and infringed the plaintiffs rights because it “forcibly outs them in the myriad circumstances when birth certificates are necessary to participate fully in contemporary society.”
(Reporting by Nate Raymond in Boston; editing by Miral Fahmy)
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