(Nashville) A federal appeals court ruled 2-1 Friday that Tennessee does not unconstitutionally discriminate against transgender people by not allowing them to change the sex designation on their birth certificates.
“There is no fundamental right to a birth certificate that indicates gender identity instead of biological sex,” wrote Justice Jeffrey Sutton of the 6the United States Court of Appeals, writing for the majority in a decision affirming a 2023 District Court decision.
The plaintiffs failed to demonstrate that Tennessee’s policy was created out of animus against transgender people because it has been in effect for more than half a century and “well before medical diagnoses of gender dysphoria,” Judge Sutton wrote.
He noted that “state practices vary widely.” Some allow birth certificate amendments with medical proof of surgery. Others require less evidence.
Only 11 states currently allow a birth certificate to be changed based solely on a person’s gender identity statement, which is what the Tennessee plaintiffs are seeking.
Tennessee birth records reflect the sex assigned at birth, and that information is used for statistical and epidemiological activities that inform the delivery of health services across the country, the magistrate wrote. “How, it is worth asking, could a government maintain uniform records of any kind if its citizens’ differing views about changing norms in society controlled the government’s language choices and the information it collected?”
The plaintiffs — four transgender women born in Tennessee — argued in court filings that sex is properly determined not by external genitalia, but by gender identity, which they define as “a person’s fundamental internal sense of one’s own gender.”
The lawsuit, first filed in federal court in Nashville in 2019, claims that Tennessee’s ban serves no legitimate government interest because it subjects transgender people to discrimination, harassment and even violence when they must produce a birth certificate for identification that conflicts with their gender identity.
In a dissenting opinion, Justice Helene White ruled in favor of the plaintiffs, represented by Lambda Legal.
“Requiring a transgender person to use a birth certificate that lists the sex assigned at birth leads others to question whether that person is the person listed on the birth certificate,” she wrote. “This inconsistency also invites harm and discrimination.”
Lambda Legal did not immediately respond to emails seeking comment Friday.
Tennessee Attorney General Jonathan Skrmetti said in a statement that the issue of changing the gender designation on a birth certificate should be left to the states.
“While other states have taken different approaches, Tennessee has consistently recognized for decades that a birth certificate records the biological fact that a child is male or female and has never addressed gender identity,” he said.