Ohio's Anti-Transgender Birth Certificate Policy Struck Down

From left: Lambda Legal attorney Kara Ingelhart, plaintiffs Basil Argento and Stacie Ray, and Liam Gallagher of the ACLU of Ohio. Photo courtesy of Lambda Legal/ACLU

A federal court in Ohio has struck down the state's policy barring transgender residents from correcting the gender on their birth certificates, leaving Tennessee as the only state with such a prohibition.

"This policy resembles the sort of discrimination-based legislation struck down under the equal protection clause in Romer v. Evans as nothing more than a policy 'born of animosity toward the class of person affected' that has 'no rational relation to a legitimate government purpose,'" Judge Michael Watson of the U.S. District Court for the Southern District of Ohio wrote in his ruling, issued Wednesday.

Romer v. Evans was a 1996 Supreme Court decision that struck down Colorado's Amendment 2, a voter-approved state constitutional amendment prohibiting the state or local governments from including sexual orientation in antidiscrimination laws.

In the Ohio case, Ray v. McCloud, state officials had argued that preventing trans residents from changing the gender on their birth certificates was key to maintaining accurate records. But Watson found that argument unconvincing, as Ohio had allowed such changes before 2016, when the Department of Health, after consultation with the governor's office, decided to cease doing so. John Kasich, a Republican, was governor at the time. The state continued to allow other changes to birth certificates, including to the gender field if there was a mistake or the person had atypical genitalia at birth.

Watson was likewise not swayed by the state's argument that it was necessary to maintain the anti-trans policy to prevent fraud. "The fact that criminals currently perpetuate fraud using birth certificates generally does not require the Court to therefore conclude that allowing transgender individuals to change their sex marker will lead to more fraud any more than allowing a person's legally changed name to be put on the birth certificate would," the judge wrote.

The challenge to the policy came in a lawsuit filed in 2018 by Lambda Legal, the American Civil Liberties Union and its Ohio affiliate, and the law firm of Thompson Hine on behalf of plaintiffs Stacie Ray, Basil Argento, Ashley Breda and Jane Doe. The named defendants were Stephanie McCloud, director of the Ohio Department of Health; Karen Sorrell, chief of the Ohio Office of Vital Statistics, and Judith Nagy, state registrar of the Ohio Office of Vital Statistics.

"Several of the plaintiffs said they were humiliated and threatened after their transgender status was revealed to their employers through their birth certificates," the Cincinnati Enquirer notes. For instance, one plaintiff, a trans woman, was told by a human resources worker that she would "always be a man in God's eyes."

"This is truly a victory for the LGBT community, in every aspect," Ray said in a press release issued by Lambda Legal and the ACLU.

"Accurate birth certificates are essential," added Kara Ingelhart, staff attorney at Lambda Legal. "They are foundational to our ability to access a variety of benefits such as employment and housing, and to navigate the world freely and safely, as who we truly are. Courts across the country have overwhelmingly determined these archaic and harmful laws are unconstitutional and today we are closer than ever to eradicating them once and for all."

When the suit was filed, Ohio was one of just three states, the others being Tennessee and Kansas, that did not allow gender to be changed on birth certificates. In June 2019, Kansas reached a consent agreement with Lambda Legal and a court ordered the state to start issuing corrected birth certificates, leaving Ohio and Tennessee as the only states with the anti-trans policy on the books. It's not clear yet if Ohio will appeal the ruling.