Transgender people have an absolute right to get their Arizona birth certificates amended without having to first undergo surgery, according to an attorney representing them.
Rachel Berg of the National Center of Lesbian Rights told U.S. District Court Judge James Soto, a 2014 nominee of former President Obama, there is no constitutional basis for existing state laws that limit when a birth certificate can be altered to reflect the individual's gender identification.
"For many transgender individuals ... surgical treatment may never be medically or psychologically appropriate to treat their gender dysphoria,'' she said, referring to a condition where a person's gender identity does not match the sex assigned at birth. But Berg said Arizona law requires surgery before the Department of Health Services will alter what shows up on a birth certificate - a birth certificate that people use to verify their identification.
All that, she told the judge, violates the constitutional rights of the individuals involved.
Assistant Attorney General Nick Acedo acknowledged that language about surgery as a precursor to altered birth certificates exists in Arizona law.
But he pointed out that there is another section, adopted in 2004, which also allows a person to get a court order directing the health department to make the change. And Acedo said Jennie Cunico, whom Gov. Katie Hobbs tapped to head that agency, has said it will always honor such requests.
That, however, may not prove satisfactory.
There have been judges who have refused to grant such an order absent proof of gender reassignment surgery. And even if that were not the case, Berg said that could be a burden to have to go through a court process, complete with hiring lawyers and having documents and hearings open to the public.
Most ideal, according to the lawsuit, would be a private administrative process within the health department. But that, said Berg, is an argument for another day if Soto voids the current surgical requirement.
What the judge rules will have an effect on more than just the children who brought the original lawsuit. Soto has agreed to let Berg represent all transgender people born in Arizona, now and in the future.
The outcome of the case, however, could prove to be even broader.
If Soto blocks the state from enforcing its current requirement for sex-change surgery before a birth certificate can be altered, it would allow others who are transgender to seek to have a new designation of their sex on those certificates.
That would mean that there would be an officially issued state document that would show transgender girls enrolled in schools as girls. And that would undermine efforts by state schools chief Tom Horne and key Republican lawmakers in a separate federal court lawsuit to defend a 2022 law that bars transgender girls, who they argue really are biological boys, from participating in girls' sports.
It also could affect perennial legislative efforts to force transgender people to use a school restroom or shower that corresponds to their sex assigned at birth, the one currently on their birth certificates.
At the heart of the case is the argument that one of the treatments for those who have gender dysphoria is to align the person's life with his or her gender identity. And while that could include hormone-replacement therapy and surgery, they said it starts with "social transition,'' changing their names, using different pronouns, adopting clothing and grooming habits associated with their peers of the same gender identity.
And that's where the birth certificates come in.
"Having identity documents that reflect a transgender person's assigned sex rather than their gender identity increases the likelihood that a person's transgender status will be disclosed to others, exposes them to a significant risk of mistreatment, and undermines the health benefits of their social transition,'' the lawsuit states. "Depriving transgender young people of birth certificates that accurately reflect who they are forces them to disclose their transgender status, information that is private and sensitive, without their consent whenever they need to rely on birth certificates to establish their identity.''
What the judge rules ultimately could depend on whether he considers the Arizona statutes requiring proof of surgery to alter a birth certificate a violation of constitutional provisions providing equal protection under the law.
On one hand, Berg acknowledged, nothing in the law specifically applies it only to transgender people who she said are protected under sex discrimination laws. But she said it's clear on its face these are the only ones affected.
"Who else is going to voluntarily seek out a sex-change operation?'' Berg said.
What all that means, she told the judge, is that the only way for the statute to survive a constitutional challenge is for the state to prove there's a justification for crafting a law that targets transgender people and that the statute is "substantially related'' to that goal.
Acedo, for his part, said the statute has nothing to do with discrimination and everything to do with accurate records.
He said Arizona has been creating and preserving "vital records'' for more than 100 years.
What is included in a birth record is "the external genitalia of the person at the time of birth as observed by a medical professional present at the birth.'' And that information is recorded in the birth certificate as male, female or "not yet determined.''
None of that, said Acedo, has any bearing on how someone self-identifies.
"The 'sex' field (on the birth certificate) does not record or predict a person's gender identity, which the parties agree is something different,'' he said. And Acedo said no one is denied a constitutional right.
"It also does not prevent any person from living autonomously,'' he said. "And it certainly does not force anyone to undergo a medical procedure.''
And Acedo said if an individual wants an amended birth certificate, there still is that option to seek a court order.
What may be missing, though, is there is no standard by which a judge gets to decide whether to grant such a request. In fact, Acedo said, the state Court of Appeals said trial judges have "wide discretion'' in whether to approve or deny it.
But what's really at issue, he told the judge, is that the litigation fails to understand the purpose of a birth certificate.
Acedo agreed that people do use birth certificates to prove their identity.
"But the primary, if not exclusive, purpose of the statute is to create and preserve historical vital records,'' he said.
Berg, however, said that claim is undermined by the fact that Arizona law does allow alterations.
"This defies the logic of the surgical requirement itself,'' she told Soto. And Berg said that even if someone does get an amended birth certificate, the health department actually still keeps the original version sealed in its own records.
"So the historical fact is already preserved,'' she said.
There is another factor that could be an issue when the judge rules, something he said he expects in about two months.
A 2022 law signed by then-Gov. Doug Ducey bars doctors from performing "irreversible gender reassignment surgery'' on minors, the procedure that is now first required to allow the health department to change a child's birth certificate absent a court order.
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