Appeals court rules Arizona can’t block transgender individuals from birth certificate changes

By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — State lawmakers can’t block transgender individuals from getting an amended birth certificate unless they first have surgery, a federal appeals court ruled Tuesday.

The 9th Circuit Court of Appeals said Arizona law does say that one method of getting the state to change a person’s gender on the official state document is to have sex-reassignment surgery.

But Judge Roopali Desai, writing for the court, rejected arguments by Senate President Warren Petersen and House Speaker Steve Montenegro that such a decision is the sole method of getting the sex marker changed on the certificate. She said there’s another statute that also directs the Department of Health Services to make changes when ordered to do so by a court.

The judge acknowledged arguments by Rachel Berg, attorney for National Center for LGBTQ Rights, that some judges have refused to consider such cases based on arguments that the health department would refuse to honor the court orders absent evidence of surgery. And it is true that a decade ago the state agency had taken that position.

But Desai said the non-surgery option for getting a birth certificate amended is, in fact, the law — and that state court judges must follow it and the health department must honor those orders.

Tuesday’s ruling is a crucial victory for several transgender individuals who had sought to change the documents but, for whatever reason, were either not ready for surgery or did not believe it was necessary.

The lawsuit, filed in 2020, involves gender dysphoria, a condition where a person’s gender identity does not match the sex assigned at birth — the one of an individual’s birth certificate.

Berg, representing two children who sued, argued one of the treatments is to align the person’s life with his or her gender identity.

While that can include hormone-replacement therapy and surgery, she said it also starts with things like changing their names, using different pronouns, adopting clothing and grooming habits associated with their peers of the same gender identity. And part of that process, Berg said, is having a birth certificate that matches.

She also said that, for some people, surgery is unnecessary for them to live their lives as the gender with which they identify. But Berg said that, without an amended birth certificate, they effectively would “out” themselves as transgender every time they had to present the document.

U.S. District Court Judge James Soto sided with Berg.

He said the health department previously had been interpreting the law in a way to deny amended birth certificates except in cases where a doctor had attested that the person had undergone surgery. So he issued an order deleting the word “operation” from the statute and related regulations.

That resulted in Montenegro and Petersen seeking appellate review. They argued there are legitimate reasons for limiting who can get an altered birth certificate, including “preventing fraud and preserving the stability of the vital-records system.”

Attorney Justin Smith who represented the pair, said there are other reasons to preserve the surgery requirement.

“The new sex listed on an amended birth certificate could be objectively verified,” he said on their behalf. “The new sex generally could be verified through a physical examination by a medical professional.”

That, he said, is not possible if the person has not gone through a surgical sex change.

Desai, in her ruling Tuesday, said both Soto and the legislative leaders are wrong.

She said it was unnecessary for the trial judge to order the removal of the word “operation” from state law because, in fact, there is that second option: Transgender individuals can go to court and get an order directing the health department to issue an amended birth certificate.

Desai acknowledged that some Arizona judges have previously refused to order the Department of Health Services to issue amended birth certificates without the proof of surgery.

“Indeed, two of the named plaintiffs were apparently denied a court order for that reason,” she wrote. And Desai said there was some testimony that the judges ruled that way because they didn’t think the health department would honor their orders absent the evidence of a sex-change operation.

But Desai said such a move by trial judges “is improper based on the plain text of the statute.”

“And for a court to decline to issue an order because it predicts that the Arizona Department of Health Services ‘wouldn’t honor it,’ is doubly improper,” she wrote, pointing out that, at least at present, the department is not taking such a position.

“The statute leaves no discretion to the agency,” Desai said. “It shall amend a birth certificate if a court order directs it to do so.”

Conversely, she said, the fact there is that other option — the one that does not require surgery — undermines the arguments by Montenegro and Petersen that it is only on receipt of medical certification of a sex-change operation that the health department can issue a new birth certificate.

There was no immediate response from the Republican legislative leaders.

GOP lawmakers tried to tighten up the law even more in 2025.

Rep. Rachel Keshel sought to repeal all options in state law for any individual to get an amended birth certificate — even if there had been a sex-change operation. The Tucson Republican said her proposal “protects the integrity of government-issued documents with true biological facts.”

She drew support from other Republican lawmakers for her outright ban on changing the documents.

“I was born on a certain day,” said Rep. Alexander Kolodin of Scottsdale. “I don’t have a constitutional right to have a different birth date on my birth certificate.”

And Rep. Khyl Powell of Gilbert called it a matter of “natural law.”

“When we are born under the natural law of procreation, we are given either one or the other of the biological sex,” he said, something he said is reflected in a birth certificate and should not be subject to alteration.

Gov. Katie Hobbs, in vetoing the measure, did not address the underling question of whether the state should allow amended birth certificates. Instead, she chided lawmakers for even sending her the proposal.

“This bill will not lower costs, will not increase opportunity, and will not enhance security or freedom for Arizonans,” the governor wrote. “I encourage the Legislature to focus on real issues that matter and impact people’s everyday lives.”