By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Transgender individuals born in Arizona are entitled to get an amended birth certificate without first having to undergo a sex change operation.

In a new order Tuesday, U.S. District Court Judge James Soto directed the Arizona Department of Health Services to no longer comply with existing state law making surgery a prerequisite. Soto gave the agency 120 days to alter its regulations to recognize and comply with his ruling.

None of that means any individual will now be free to demand a new birth certificate. Rachel Berg, attorney for the National Center for LGBTQ Rights, who filed the lawsuit in 2020 on behalf of three transgender boys whose Arizona birth certificates listed them as female and a transgender girl identified as male. She said it will require the attestation of a medical doctor that the person has undergone a sex change.

Still, that opens the door to individuals being able to get state-issued documents that reflect their gender as they are transitioning. Berg has said not everyone who identifies as a different gender than the one they are assigned at birth necessarily needs to have the intrusive procedure of surgery.

The new order allowing amended birth certificates could have other implications.

It comes as state schools chief Tom Horne is defending a 2022 Arizona law that says anyone who was born male should not be able to play on a team designed for women or girls in intramural or interscholastic sports.

State lawmakers also have proposed multiple bills to say people must use the restrooms and locker rooms that match the gender they are assigned at birth. A similar measure would link that gender assigned at birth to what pronouns a teacher can and cannot use when addressing a child.

Those efforts, too, could be affected by students with an amended birth certificate.

In some ways, the order is not a surprise.

Soto ruled last year the Arizona law requiring surgery to get an amended birth certificate violated a variety of individual rights, including the right to decide whether or not to undergo a particular medical treatment. What’s new is his order to the health department to ignore the law and begin issuing new birth certificates to those who qualify within 120 days.

“We’re still looking at the impact of the order,” Gov. Katie Hobbs said Wednesday.

“We’re going to follow what the law says,” the governor said. “And we’re still looking at what that is.”

Hobbs declined to say whether she believes someone who wants to change gender on a state-issued document should have to first undergo surgery.

A spokesman for the Attorney General’s Office, which has been defending the health department, said the ruling is being studied before making any decision on an appeal.

At the heart of the new order is gender dysphoria, a condition where a person’s gender identity does not match their sex assigned at birth — the one of an individual’s birth certificate.

Berg told the court one of the treatments is to align the person’s life with his or her gender identity. While that could 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.

Soto agreed.

“Not every transgender person needs surgery to complete a gender transition,” he wrote in his initial ruling. “Starting social transitioning and other recommended therapy may eliminate the need for any potential surgical intervention.”

That, the judge said, is what has been happening in the case of the children who sued.

But Soto said that, absent a birth certificate that reflects their gender — something the state won’t issue absent surgery — transgender individuals cannot continue their social transition. And that, the challengers said, presents problems when they are in situations where they are required to present a birth certificate.

“Their outward physical appearance will not fit with the gender marker on their birth certificate,” the judge said of their concerns. “Thus, if these documents are presented to others, they would, of course, be forced to involuntarily out themselves as transgender.”

That will no longer be an issue once the state starts issuing new birth certificates that match an individual’s gender identity. But that, in turn, affects how — and if — the state can enforce its 2022 law on who can play on what team.

The Save Women’s Sports Act spells out that teams designated for women or girls “may not be open to students of the male sex.” And by “sex,” the law means the one assigned at birth based on a baby’s sex organs.

So far judges hearing the case have allowed several transgender girls who have not had reassignment surgery — it is prohibited under Arizona law — who have birth certificates showing they were born male to play on girls’ teams.

It took a court order to make that happen after judges rejected Horne’s argument that those born male are inherently stronger than those born female, regardless of whether or not they have entered puberty or are taking hormone therapy. The case remains on appeal.

Horne said Soto’s order could change all that going forward.

“If they have a birth certificate saying they’re a girl, there’s no way to know that they’re a transsexual,” he said.

Berg, however, said it’s not that simple.

She pointed out the Arizona law, which she is challenging in a separate lawsuit, says nothing about what’s on an individual’s birth certificate but instead refers to their gender at birth.

And Berg said it may be irrelevant the new ruling says a birth certificate — the only available official document available — would show that person is female. She said that still doesn’t get around the issue of how the Arizona law determines on which team a student can play: checking on their sex organs.

“It requires girls — all girls — to submit to things like genital inspection or other medical testing that’s highly invasive in order to verify one’s gender to complete in school sports,” Berg said.

In his new order, Soto rejected an alternate proposal by House Speaker Steve Montenego and Senate President Warren Petersen to deal with the inequity of allowing an amended birth certificate only for those who first had surgery.

They noted the lawsuit — and his ruling — was based on the question of whether it was discriminatory to allow some people to get a new birth certificate but deny it to others because they chose not to undergo surgical procedures. So they suggested Soto eliminate that discrimination by simply voiding the entire law allowing amended birth certificates.

That would have denied the opportunity for a new birth certificate to all, including those who had undergone operations. Montenegro and Petersen argued that would be a more appropriate legal remedy than the judge deleting the word “operation.”

Soto, however, said that’s not an acceptable option, saying he did not want to deny a right to all transgender individuals.

“Unlike non-transgender individuals, transgender persons often face negative consequences when forced to present a birth certificate whose sex marker fails to reflect their gender identity,” he wrote. And since lawmakers already had allowed new birth certificates for those who have surgery, Soto said it made more sense to expand that right to all rather than nullify it for all.