A federal appeals court on Friday upheld a Tennessee policy prohibiting transgender individuals from changing the sex marker on their birth certificate.
In a 2-1 decision, the majority ruled the Tennessee policy is constitutional, writing that “there is no fundamental right to a birth certificate recording gender identity instead of biological sex.” The majority called the policy, which is an outlier in the U.S., “a nondiscriminatory form of government speech embraced by some States about an undeniable historical fact.”
Chief 6th Circuit Judge Jeffrey Sutton wrote the majority opinion and was joined by Judge Amul Thapar.
The dissenting opinion, written by Senior Judge Helene White notes that at least 43 U.S. states or territories allow changes to the sex marker on birth certificates under varying circumstances. White wrote that Tennessee’s policy is inconsistent because individuals born with ambiguous genitalia are allowed to amend the sex marker on their certificates after their birth based on other characteristics.
“In so doing, the State denigrates those who do not conform to societal assumptions about what it means to be male or female, like transgender individuals, conveying that they are somehow less male or female because of the accidents of their birth â that no matter what, in the eyes of the State, their genitalia at birth alone determine their identities forevermore,” White wrote.
A group of transgender Tennessee-born plaintiffs sued the state in 2019 seeking an order to compel the state to change their birth certificates. They sought to overturn a 1977 Tennessee law that expressly forbade amendments to birth certificates after an individual completed sex-reassignment surgery, in response to a federal law passed the same year recommending allowing such changes.
The decision comes just more than a year after the U.S. District Court for the Middle District of Tennessee ruled against the plaintiffs. They are represented by Lambda Legal, a civil rights organization focusing on the LGBTQ+ community.
The Tennessean has sent messages to the Tennessee Attorney General’s Office and Lambda Legal seeking comment.
This is a developing story.
Evan Mealins is the justice reporter for The Tennessean. Contact him at emealins@gannett.com or follow him on X, formerly known as Twitter, @EvanMealins.
This article originally appeared on Nashville Tennessean: Tennessee policy on transgender residents and birth certificates upheld
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