Arizona health officials and trans minors spar over sex markers on birth certificates

By: - November 24, 2023 11:19 am

Image via Arizona Department of Transportation

The first time Abigail Jensen was pulled over after correcting the sex identifier on her driver’s license, she felt a wave of relief and confidence in her safety. 

“(I) showed him my driver’s license and everything was fine. There were no problems,” she said. 

That’s not always the case for transgender people, who face greater hurdles than cisgender people accessing accurate identification documents — hurdles that can put them in danger. A 2015 survey from the National Center for Transgender Equality found that almost one-third of respondents who presented an identity document incongruent with their perceived gender dealt with negative experiences, including harassment and physical attacks. 

At the top of the list of the most difficult documents to correct are birth certificates, which are often the source material for all other forms of legal identification, like driver’s licenses and passports. 

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In the Grand Canyon State, transgender people hoping to update their birth certificates to reflect who they truly are must submit either a court order directing the Arizona Department of Health Services to honor their request or a doctor’s note confirming they’ve had a “sex change operation.” 

But the state law outlining those requirements is currently being challenged by a trio of transgender minors, and has the potential to help the more than 41,000 Arizonans who identify as trans finally receive an updated birth certificate. 

What to know about the case: 

In November 2020, a trio of trans minors and their parents sued the Department of Health Services over the process for editing sex markers on birth certificates. Lawyers for the minors argued that having special rules for trans individuals is discriminatory and violates several constitutional protections, including the rights to privacy and equal protection guaranteed by the 14th Amendment. 

The minors added that making it more difficult for them to receive accurate birth certificates jeopardizes their access to necessary benefits. Research has shown that transgender people who lack accurate identity documents face a higher risk of being denied employment, education, housing, healthcare and government services, among other things

“Birth certificates are critical identity documents in our world,” wrote attorney Colin Proksel in the latest filing. “Having identity documents that correctly reflect one’s identity is essential to an individual’s ability to participate in our society.”  

The lawsuit also alleged that the only two options available for transgender people — a “sex change operation” or a court order — are an unreasonable standard to meet. Petitioning a court is a lengthy, confusing and expensive process, and there’s no guarantee the judge will agree with the plaintiff. Likewise, gender-affirming surgeries can be cost-prohibitive, and not all trans people need or want them to transition successfully

And the surgical option isn’t at all a possibility for trans minors, who are prohibited from receiving any surgery for the purpose of transitioning after the state’s Republican legislative majority made it illegal last year. 

That same legislative majority might see a kink in its future goals if the trio of minors wins the lawsuit. Arizona Republicans also passed a law in 2022 barring trans girls from joining public school athletic teams that match their gender identity last year that is currently being litigated, and have repeatedly attempted to restrict which bathrooms trans students can use. Birth certificates have been the key enforcement mechanisms behind each discriminatory proposal. 

In August, federal Judge James Soto agreed to raise the case’s classification to a class action lawsuit, reasoning that trans Arizonans across the state likely faced the same frustrations as the three minors. 

What the AZ Department of Health Services says

In a summary judgment request filed last week, ADHS Director Jennie Cunico expressed sympathy for the plight of transgender Arizonans, but ultimately defended the policy as constitutional. In her position as the leader of the Department of Health Services and as the registrar of vital records, Cunico noted that she is obligated to follow state law, including the law that strictly delineates what proof transgender Arizonans must provide to revise their birth certificates.

“Defendant Jennie Cunico understands the inherent challenges that transgender people face in navigating their daily lives when they do not have identity documents that are consistent with their gender identity and has empathy for Plaintiffs and other class members faced with those challenges,” her attorneys wrote. “But it is not within the Director’s power to enact the procedure Plaintiffs propose because the Director is obligated to follow and implement the law as written.” 

The complaints voiced by the three minors don’t rise to the level of rights violations, she argued. 

Transgender Arizonans, like all other residents of the Grand Canyon State, are required to include supporting documentation with their requests, and, like cisgender Arizonans, have the option to petition the court for redress. 

And federal guidelines don’t offer as much leeway. The National Center for Health Statistics, a federal data gathering agency which offers model health policies for states, advises that a sex field on birth certificates only be amended if a certified copy of an order stating the person’s sex was surgically changed is provided. 

While she acknowledged that it’s often difficult to receive a court order, Cunico said transgender Arizonans do have ample opportunity to change their birth certificates and aren’t solely limited to undergoing surgery. 

“This process may not be satisfactory to Plaintiffs, but it is not unconstitutional,” she said. 

Cunico defended the law as critical to ensure the state keeps accurate historical records for demographic purposes, and said it isn’t discriminatory because the sex markers on birth certificates have nothing to do with a person’s gender identity. 

“No part of the challenged Arizona law prohibits Plaintiffs from living their lives consistent with their gender identities,” reads the brief. 

Cunico was nominated to the post of director just two months ago by Gov. Katie Hobbs, a Democrat who has been a vocal proponent of LGBTQ rights. Agency heads like Cunico are nominated to carry out the vision of the chief executive, and a spokesman for Hobbs lamented that Cunico was forced to implement the law in a statement to the Arizona Mirror. 

“The Governor does not agree with the law, and empathizes with the plaintiffs in the case,” Christian Slater, the governor’s spokesman said. “But unless a court orders otherwise, state agencies are required to follow and implement the law as written.” 

“We hope to see a swift resolution to the lawsuit and will continue to protect and support LGBTQ+ Arizonans,” Slater added.

What the three minors say 

The process governing how people edit their birth certificates is unfair to transgender Arizonans, argue attorneys for the three minors who sued the department of health services. While cisgender Arizonans need only deliver a doctor’s attestation that they are who they say they are, trans people must provide a doctor’s note asserting a sex change operation took place or a court order. 

“Being deprived of birth certificates that accurately reflect who they are stigmatizes transgender people and invades their privacy, releases confidential medical information, and places them at risk for grave psychological and physical harm,” wrote attorneys in a summary judgment request. 

A key part of the trio’s argument is that each of their diagnoses of gender dysphoria — a medical condition characterized by intense distress when a person’s biological sex and gender identity are incongruent — is worsened by the birth certificate amendment process. The treatment for gender dysphoria, widely accepted by multiple medical associations, is gender-affirming care, which includes measures to transition socially, such as using a person’s chosen name and correcting important identity documents. Enacting insurmountable roadblocks for people seeking to amend their birth certificates works against that. 

And an incorrect birth certificate complicates applications for other identity documents. Transgender people hoping to obtain driver’s licenses, passports and social security cards must first present proof of their identity, which often necessitates a birth certificate. Presenting a document incongruent with their perceived gender effectively discloses a person’s transgender status without their permission and may exacerbate their gender dysphoria. 

“Every time (the) Plaintiffs attempt to use their birth certificates, they risk disclosing private medical information and intensely personal aspects of their identities,” Proksel wrote. “They are thus faced with an impossible choice: risk disclosure to participate in normal childhood activities — from in-person schooling to recreational sports — or forgo participation altogether. Either outcome negatively affects their overall health, development, and well-being and limits their interest and ability to engage in those everyday activities.” 

The argument that Arizona’s law is valid because it preserves accurate statistical data is flawed, added attorneys for the minors, as it actually preserves inaccurate information. Federal agencies like the U.S. Department of State, which issues passports, the Social Security Administration, and U.S. Citizenship and Immigration Services, which distributes permanent resident cards, all make the process of editing sex markers easier because they recognize the need for accuracy. 

Even the Arizona Department of Transportation only requires a doctor’s note confirming a person’s commitment to transitioning for a driver’s license to be amended. In a statement to attorneys, ADOT explained its policy was maintained to ensure that customers are able to prove their identity and that other agencies are able to verify that same identity.

“The Surgical Requirement ensures that Plaintiffs do not have truthful, complete, or correct birth certificates by conditioning access to the private administrative process on a surgical procedure that they may not need or cannot get,” Proksel said. 

Similar arguments from other states that proof of surgery is necessary to ensure good-record keeping were rejected in Alaska, Idaho, Michigan and Puerto Rico. 

For Jensen, who is a transgender woman, fixing how the state processes birth certificate amendments is about minimizing the harm done to transgender Arizonans. Something as small as the ‘F’ or the ‘M’ on a driver’s license can have an enormous impact. But being misgendered, she said, feels “like a bolt of lightning” striking her heart.

“A transgender person in our country has most likely grown up being told over and over by their parents, their friends, their community and their government that they’re not who they say they are,” Jensen said. “That sort of denial of one’s identity causes trauma and so to be able to correct that, to know, even just in your own mind, that the government says I am who I know myself  to be, that’s affirming.” 

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Gloria Rebecca Gomez
Gloria Rebecca Gomez

Gloria Gomez joined the Arizona Mirror in August 2022. She graduated in 2022 with bachelor's degrees in journalism and political science, with a Spanish minor.

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