Lambda Legal Appeals Court Ruling Upholding Tennessee's Discriminatory Birth Certificate Policy

"Birth certificates are critical and foundational identity documents. They are not mere records of historical facts or observations."

(Cincinnati, OH, October 20, 2023) - Late yesterday, Lambda Legal urged the U.S. Court of Appeals for the Sixth Circuit to reverse a district court ruling upholding Tennessee's discriminatory birth certificate policy. Tennessee's policy does not allow transgender people born in Tennessee to correct the gender marker on their birth certificates, leaving them grappling with inconsistent government identity documents and forcibly disclosing their transgender status. Tennessee is one of only a handful of states left in the country that still categorically prohibit transgender people from correcting their birth certificates to accurately reflect their identity.

"Birth certificates are critical and foundational identity documents. They are not mere records of historical facts or observations. However, after more than three years of waiting, the district court treated birth certificates as if they were not identity documents at all and dismissed the plaintiffs' complaint," Lambda Legal Counsel and Health Care Strategist Omar Gonzalez-Pagan said. "We believe the court should have grappled with the merits of plaintiffs' claims. Tennessee's archaic policy not only discriminates against transgender people born in the state, it also risks their safety and wellbeing by involuntarily disclosing their transgender status, exposing them to discrimination, harassment, and even violence."

The brief filed last night argues that denying transgender people the ability to obtain accurate birth certificates consistent with their gender identity subjects them to unconstitutional discrimination and violates their right to privacy.

Lambda Legal filed a federal lawsuit in 2019 challenging Tennessee's anti-trans policy on behalf of four transgender women born in Tennessee - Kayla Gore, Jaime Combs, and two plaintiffs identified by their initials, L.G. and K.N. At that moment, Tennessee was one of just three remaining states, including Kansas and Ohio, with such a policy. Since then, federal courts in both Kansas and Ohio issued judgments that such policies are unconstitutional, but states like Montana, North Dakota, and Oklahoma adopted similar discriminatory policies. This past June, the U.S. District Court for the Middle District of Tennessee granted the State of Tennessee's motion to dismiss the complaint, which had been pending for more than three years.

The district court ruling followed a Tennessee legislative session where the legislature enacted a raft of anti-transgender bills which Tennessee Governor Bill Lee signed into law. These bills have: banned transgender youth from participating in sports; criminalized the provision of gender-affirming medical care for trans adolescents; banned drag performances; and required businesses to post signs if they allow transgender people to use the correct bathrooms. The latter two have been found unconstitutional by federal courts and Lambda Legal has challenged the ban on gender-affirming care for trans adolescents (L.W. v. Skrmetti) and the prohibition on sports participation by transgender youth (L.E. v. Lee).

In the lawsuit, Gore v. Lee, Lambda Legal argued that denying transgender people born in Tennessee the ability to obtain accurate birth certificates violates the Equal Protection and Due Process clauses of the Fourteenth Amendment to the U.S. Constitution. The lawsuit also argued that forcing transgender people through their birth certificates to identify with a sex that is not who they are violates their free speech rights under the First Amendment.

The lawsuit was filed in the U.S. District Court for the Middle District of Tennessee in Nashville. Apart from this case, Lambda Legal has successfully challenged categorical bans on corrections to birth certificates in Idaho, Ohio, and Puerto Rico, as well as restrictive policies in New York and North Carolina. In Kansas, a court entered a consent judgment in 2019 which remained in place until this year. In each of those jurisdictions, Lambda Legal secured victories that prompted policy changes allowing transgender people to obtain birth certificates accurately reflecting their identities.

According to the 2015 U.S. Transgender Survey, almost one-third of transgender people who showed an identity document with a name or gender marker that conflicted with their perceived gender were harassed, denied benefits or services, discriminated against, or assaulted. Transgender people also are disproportionately targeted for hate crimes.

Handling the case on behalf of Lambda Legal are Counsel and Health Care Strategist Omar Gonzalez-Pagan, Senior Counsel Tara Borelli, and Senior Attorney and Director of the Non-Binary and Transgender Rights Project Sasha Buchert. They are joined by pro-bono co-counsel Gavin Villareal, Maddy Dwertman, Brandt Roessler, and Joshua Lee of Baker Botts LLP and John Winemiller and River Lord of Merchant & Gould.

Read the brief filed yesterday here: Opening Brief for Plaintiffs-Appellants - Lambda Legal

Read more about the case here: https://www.lambdalegal.org/in-court/cases/tn_gore-v-lee

Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people, and everyone living with HIV through impact litigation, education, and policy work. www.lambdalegal.org