A birth certificate is more than a piece of paper. An accurate birth certificate allows us to account for our population; it is often required in many aspects of life, ranging from employment, to obtaining state identification cards, to enrolling in school, to participating in government programs; and perhaps most importantly, it is an essential tool for establishing identity. The accuracy of a birth record is critically important, and thus the State of Ohio permits changes – sometimes many years after birth – when the information has not been “properly or accurately recorded.”[1]

But what should happen when the state allows some changes, such as changing the identity of one’s parent following adoption, but prohibits changes for transgender individuals who wish to change their gender marker* to accurately reflect that person’s identity? In Stacie Ray, et al. v. Stephanie McCloud, et al., a case filed and recently decided in the U.S. District Court for the Southern District of Ohio, a federal judge in Columbus, Ohio answered that question: The state must change the gender marker.

Plaintiffs Stacie Ray, Bail Argento, Ashley Breda, and Jane Doe are four transgender individuals who wished to correct their Ohio birth certificates to accurately reflect their gender identities. Ray, Doe, and Breda identify as women, but their birth certificates designate their “sex” as male. Argento identifies as a man, but his birth certificate indicates his “sex” as female. Forty-eight states confronted with the plaintiffs’ situation would have allowed them to change their gender markers, but not Ohio. No portion of the Ohio Revised Code prohibits a person from modifying the gender marker on a birth certificate, and the Revised Code affirmatively permits certain changes to birth certificates, such as changes to a legal name or changes to a gender marker if the marker was undetermined at birth. Although the Ohio Department of Health previously permitted transgender individuals to change their gender markers, the Department changed its policy to prohibit the practice.[2] On December 16, 2020, U.S. District Judge Michael H. Watson found this prohibition unconstitutional, and with it, solidified Ohio as the 49th state to allow transgender individuals to change their gender markers to align with gender identities. Tennessee, another state in the Sixth Circuit, is the lone remaining state with a prohibition.

When Ohio refused to change the plaintiffs’ birth certificates, they sued for, among other reasons, violations of substantive due process and equal protection. With respect to the due process claim, Judge Watson found that Ohio’s prohibition on changing gender markers for transgender individuals violated a right to informational privacy – a standard that many scholars regard as an exacting standard applicable in the narrowest of cases, at least in the Sixth Circuit. Essentially, the right recognizes an interest in avoiding disclosure of personal matters (1) when the release of information may lead to bodily harm or (2) when the released information relates to matters of a sexual, personal, or humiliating nature. Despite the narrow nature of this standard, however, Judge Watson found the plaintiffs more than satisfied it. For example, because Ohio refused to change Ray’s birth certificate to identify an accurate gender marker, she was forced to explain an apparent discrepancy between her birth certificate (misidentifying her as male) and driver’s license (accurately identifying her as a woman) to a human resources professional. After Ray had to disclose that she was transgender, she was not only called a “freak,” but one co-worker even threatened violence if Ray were to use a woman’s restroom.

Ray’s experience is not uncommon. Judge Watson cited a study revealing that in 2015, 36 percent of transgender individuals in Ohio who showed identification that did not match their gender presentation were harassed, denied benefits or services, asked to leave a place, or assaulted. Expert testimony confirmed a “very real and heightened risk of harm” in such situations. This evidence aligned with Judge Watson’s previous recognition that “forced disclosure of an individual’s transgender status” very well could put them at risk, finding that “[t]he excru[c]iatingly private and intimate nature of [being transgender]…is really beyond debate.” Accordingly, Judge Watson found Ohio’s policy led to the forced disclosure of private information such that it would offend the substantive due process right to informational privacy.

As for the equal protection claim, Judge Watson found that Ohio’s policy toward changes to birth certificates imposed unequal treatment on transgender individuals as compared to others, such as those who requested changes to their birth certificates reflecting their birth parents or legal name. In doing so, Judge Watson found that Ohio must meet intermediate scrutiny to impose such unequal treatment, and that the evidence presented failed to meet the requirements of that test. In fact, Judge Watson found that Ohio failed to meet even a rational basis review (arguably the lowest burden for such challenges) “because there is no logical connection between [Ohio’s position regarding transgender individuals] and proffered justifications.” Judge Watson saw Ohio’s approach to be “arbitrary and unequal,” and thus insufficient at a most basic level of justification.

Judge Watson was clear: Ohio’s justifications for its approach, both in defense of both the due process and equal protection challenges, were nothing more than “thinly veiled post-hoc rationales to deflect from the discriminatory impact” of Ohio’s approach toward people who are transgender. Consequently, the court ruled that Ohio’s birth certificate restrictions are unconstitutional and enjoined Ohio’s application of such restrictions moving forward. The decision affirms that transgender individuals must be permitted to update birth documents so that their gender marker is accurate and reflects their gender identity, just as other after-birth events, such as legal name changes and adoptions, necessitate similar changes. The decision is no doubt a victory for transgender Ohioans.

It is unknown whether Ohio will appeal Judge Watson’s decision, but Dinsmore & Shohl lawyers are committed to closely monitoring any developments.