Ninth Circuit: Arizona Birth Certificate Sex Change Law Reinstated

• The Ninth Circuit Court of Appeals lifted an injunction, reinstating an Arizona law governing birth certificate sex marker amendments for transgender individuals.
• The law requires either physician verification of sex reassignment surgery or a court order to change a birth certificate's sex designation.
• U.S. Circuit Judge Roopali Desai's opinion found the statute does not violate the Equal Protection Clause, applying rational basis review.
• The appellate court reversed a lower court's permanent injunction and remanded the case for further proceedings.
• Plaintiffs had challenged the law in 2020, claiming it violated constitutional rights by requiring surgery or a difficult court order process.

The appellate court's ruling reverses a lower court's summary judgment that had favored plaintiffs challenging the law and remands the case for further proceedings.

A two-judge panel of the Ninth Circuit Court of Appeals has reinstated an Arizona law governing how transgender individuals can amend the sex marker on their birth certificates. The decision, issued on a Tuesday, lifts a previous injunction that had blocked the statute, meaning the law's requirements are now back in effect. The appellate court's ruling reverses a lower court's summary judgment that had favored plaintiffs challenging the law and remands the case for further proceedings.

The Arizona statute mandates that transgender individuals seeking to change their birth certificate's sex designation must either provide a written statement from a physician verifying sex reassignment surgery or obtain a court order. This ruling comes after a class action lawsuit was filed in 2020 by a group of Arizona-based transgender individuals, including minors, against the director of the Arizona Department of Health Services. The plaintiffs in that case had sought the ability to amend their birth certificates without undergoing sex reassignment surgery, arguing that the existing statute violated their constitutional rights.

Senior U.S. District Judge James Soto, an appointee of Barack Obama, had previously granted a permanent injunction that removed any reference to a sex change "operation" from the statute. However, the Ninth Circuit panel found this injunction to have been improperly issued, leading to its reversal. The case will now return to the lower court for additional hearings, though the core provisions of the Arizona birth certificate gender marker law are now affirmed.

U.S. Circuit Judge Roopali Desai, a Joe Biden appointee, authored the 26-page opinion for the Ninth Circuit, which concluded that the Arizona birth certificate amendment statute does not infringe upon the Equal Protection Clause. The panel determined that the law does not create a legislative classification based on transgender status or any other suspect class. Consequently, the court applied a rational basis review to the plaintiffs' facial challenge, finding that the statute successfully met constitutional muster under this standard.

Judge Desai's opinion clarified that transgender individuals, regardless of whether they have undergone sex reassignment surgery, possess avenues to change their sex marker on their birth certificate under Arizona law. The statute provides two distinct pathways: submitting a written request accompanied by physician verification of a sex change operation, or, for those who have not had surgery, securing a court order, a process available to any Arizonan seeking to amend their certificate. The plaintiffs had contended that this framework violated both the Equal Protection and Due Process clauses, citing the difficulty and expense associated with obtaining a court order. However, the court found no constitutional violation, asserting that the statute offers options rather than discriminating based on transgender status.

Senior U.S. Circuit Judge Andrew Hurwitz, also an Obama appointee, joined Judge Desai on the panel that heard oral arguments for the appeal on April 14 in Phoenix. The court's decision underscores its view that the Arizona law provides reasonable mechanisms for updating official identification documents without targeting a protected class.

During the appellate proceedings, Rachel Berg from the National Center for LGBTQ Rights represented the transgender appellees, while Nathan Arrowsmith, Deputy Chief Counsel from the Arizona Attorney General’s Office, presented arguments on behalf of the state. The legal battle also saw intervention from Arizona Senate President Warren Petersen and Arizona House Speaker Steve Montenegro, who sought to appeal the lower court’s permanent injunction against the surgery mandate.

Judge Desai's detailed opinion specifically addressed and found faulty the intervenors' interpretation of Arizona law, which suggested that anybody could readily obtain a court order to amend their certificates. While the court affirmed the existence of the court order pathway, it rejected the intervenors' specific arguments regarding its universal applicability or ease. The Arizona Department of Health Services, the defendant agency, did not provide an immediate response to requests for comment following the ruling.

Despite the Arizona authorities prevailing in the Ninth Circuit Arizona birth certificate sex change case, Rachel Berg of the National Center for LGBTQ Rights expressed a positive outlook on the ruling. In an emailed statement, Berg celebrated the decision as a win for transgender people in the state, asserting that the Ninth Circuit’s opinion removes "outdated, burdensome barriers" that previously made it nearly impossible for many transgender Arizonans, particularly young individuals, to obtain accurate birth certificates. She further stated that the decision clarifies that Arizona courts permit all transgender individuals to update their birth certificates without requiring specific medical treatment.

This ruling means that transgender individuals in Arizona seeking to amend their birth certificate's sex marker must now navigate the state's specific requirements, which include either physician verification of sex reassignment surgery or the procurement of a court order. The case has been remanded to the lower court for further proceedings, indicating that while the core legal challenge to the Arizona birth certificate gender marker law has been addressed at the appellate level, additional steps remain in the judicial process.

The Ninth Circuit's decision means the Arizona law requiring either physician verification of sex reassignment surgery or a court order to amend a birth certificate's sex marker is no longer blocked and has been found to pass constitutional muster under rational basis review. Lawyers advising transgender clients in Arizona must now guide them through these specific, potentially more burdensome, pathways to update their official identification documents, understanding that equal protection and due process challenges were rejected at this appellate stage.

Source: Original reporting via Courthouse News