Oklahoma Asks Supreme Court to Review Ruling on Birth Certificate Gender Identity Policy

The Tenth Circuit found a state policy banning gender identity designations on birth certificates violates the U.S. Constitution.

Oklahoma Gov. Kevin Stitt speaks before signing an executive order defining biological sex and ordering state agencies to provide services based on that definition on Aug. 1, 2023. Courtesy of the Oklahoma Governor's Office

Oklahoma is urging the U.S. Supreme Court to validate the state’s policy of requiring that birth certificates reflect a person’s biological sex at birth, as opposed to gender identity.

The high court docketed the petition in Stitt v. Fowler on Jan. 28, meaning the document was accepted for inclusion in the court’s official files.

The petitioner is Oklahoma Gov. Kevin Stitt (R). The respondents are Rowan Fowler, Allister Hall, and Carter Ray, who are described in court papers as “transgender people without amended Oklahoma birth certificates … [whose] sex listed on their birth certificates does not reflect their gender identities.”

Beginning in “at least 2007,” the Oklahoma State Department of Health (OSDH) allowed people identifying as transgender to get amended state birth certificates showing their sex as their preferred gender identity, according to the U.S. Court of Appeals for the Tenth Circuit’s June 18, 2024, ruling.

“From 2018 to late 2021, at least 100 transgender individuals received Oklahoma birth certificates with amended sex designations,” the appeals court said.

After an individual secured an amended birth certificate showing a gender-neutral sex designation, Stitt signed an executive order in 2021 directing OSDH to end its practice of  amending birth certificates to change sex designations.

“I believe that people are created by God to be male or female. Period,” Stitt said at the time. The governor said he would take “whatever action necessary to protect Oklahoma values and our way of life.”

Before that time, transgender-identifying individuals could have their birth certificates modified by presenting a court order requiring it, but after the executive order, OSDH stopped honoring such orders, the appeals court said.

Fowler, Hall, and Ray presented the department with court orders requiring the agency to amend their designated sex on official documents, but OSDH declined to do so, citing Stitt’s executive order.

In March 2022, the respondents sued in federal district court, invoking 42 U.S. Code Section 1983, a federal law that allows individuals to sue the government for civil rights violations.

They argued the state’s policy violated the Equal Protection and Due Process Clauses of the 14th Amendment, discriminating against them on the basis of their sex and transgender status, according to the appeals court.

The sex discrimination claim relied on the Supreme Court’s reasoning in its 2020 ruling in Bostock v. Clayton County. That landmark employment law decision expanded the meaning of “sex” in the phrase “on the basis of sex” that appears in the nondiscrimination provisions of the Civil Rights Act of 1964, to include gender identity.

The three individuals said “without amended birth certificates, they must involuntarily disclose their transgender status when providing their birth certificates to others,” and that these “involuntary disclosures violate their substantive due process right to privacy.”

Substantive due process protects those personal and relational rights, as distinguished from economic rights, that are not explicitly mentioned in the Constitution’s Bill of Rights and that are deeply rooted in U.S. history and tradition, as seen in the context of evolving social norms.

The district court sided with the state and dismissed the lawsuit.

The Tenth Circuit upheld the lower court’s dismissal of the substantive due process claim, but reversed its dismissal of the equal protection claim.

The appeals court held that “Bostock’s reasoning leads to the conclusion that the [birth certificate] Policy intentionally discriminates against [respondents] based in part on sex” because it “intentionally treats [respondents] differently because of their sex assigned at birth.”

Oklahoma Attorney General Gentner Drummond said in a statement that the state’s policy on birth certificates is constitutional.

The Tenth Circuit’s ruling is at odds with a Sixth Circuit decision upholding a similar birth certificate policy in Tennessee, he said.

“Nothing in the Constitution prohibits States from permanently documenting sex on a birth certificate. A newborn’s sex is an objective fact that has long been recorded and preserved in state records,” according to the petition.

“And the Fourteenth Amendment does not require Oklahoma to catalogue gender identity—years after birth—on birth certificates.”

Oklahoma Attorney General Gentner Drummond during an interview in Oklahoma City on Feb. 1, 2023. Sue Ogrocki/AP Photo

The Epoch Times reached out for comment to the respondents’ attorneys at Lambda Legal, a nonprofit headquartered in New York City. No reply was received by publication time.

Lambda Legal praised the Tenth Circuit’s decision when it was handed down last year.

“This ruling stands as a monumental win for the transgender community in Oklahoma and nationwide, sending a clear message to lawmakers everywhere that unconstitutional discrimination against transgender people will not be tolerated by the courts,” Lambda Legal senior counsel Peter Renn said at the time.

“This ruling comes at a critical time amidst a surge in anti-transgender policies of all stripes across the country. That includes attempts, like the one here, to roll back the basic ability of transgender people to correct their identity documents to match who they are, which can expose them to harassment, abuse, and physical danger.”

It is unclear when the Supreme Court will take action on the new petition.