PHOENIX — Arizona’s top state health official says there is nothing unconstitutional about her agency’s refusal to issue new “corrected” birth certificates to transgender individuals based simply on their request.
In a new court filing, Jennie Cunico says through attorneys for the Department of Health Services she is simply following state laws which spell out when a birth certificate can be amended.
One, she said, is with a written verification from a physician that the individual has either “undergone a sex change operation” or has a chromosomal count that establishes their sex is different from what was recorded on the birth certificate.
Cunico said, however, her agency will obey a court order directing that the birth certificate should be changed.
“Any individual can petition the superior court for an order directing the department to amend their birth certificate,” she told U.S. District Court Judge James Soto in the filing.
“The superior court has broad discretion to order amendments and seal documents,” Cunico continued. “This process may not be satisfactory to plaintiffs, but it is not unconstitutional.”
In fact, she said, the health department “has assisted with procuring — and has received and honored — court orders to change the sex field on a person’s birth certificate.”
But Rachel Berg, an attorney with the National Center for Lesbian Rights, said it’s not that simple. She said Arizona judges have denied relief and refused to issue the requested orders to those seeking an amended birth certificate who have not also had a sex change.
And Soto himself, in an earlier ruling, already appears to have concluded having to go to court is not a substitute for what the challengers want: a simple procedure that can be accomplished within the health department. He called the legal process “much more burdensome.”
“It requires a transgender person to file a lawsuit against government entities to obtain a ‘court order,’ which entails much more cost, confusion and uncertainty than a private administrative process before a local registrar,” the judge wrote in a 2021 order.
“Navigating through the litigation process is often difficult and fraught with period for trained attorneys, let alone a transgender person without the money, education and resources to properly navigate the litigation process.”
Even if that were not the case, Soto said the law does not provide any standards in which a transgender child — like the ones in this case — could obtain the court order they want.
“Thus, these kids and their parents are left along under (the law) to file a lawsuit against government entities under a provision of a statute that provides no standards to obtain necessary relief,’’ the judge wrote.
But the case remains alive as Soto determines whether he will issue an order permanently barring the health department from denying an amendment to a birth certificate to any individual who has not had a sex-change procedure.
The lawsuit was filed on behalf of three transgender boys whose Arizona birth certificates list them as female and a transgender girl identified as male. A fifth transgender girl in the lawsuit managed to get her birth certificate changed after Soto in November 2022 ordered that her birth certificate be amended in what Berg said was an agreement with the state.
Central to the lawsuit is the argument that some individuals have “gender dysphoria,” a disconnect between the person’s identity and the assigned sex.
Attorneys for the children say one of the treatments is to align the person’s life with his or her gender identity. And while that could include hormone-replacement therapy and surgery, they said it starts with “social transition,’’ changing their names, using different pronouns, adopting clothing and grooming habits associated with their peers of the same gender identity.
“Having identity documents that reflect a transgender person’s assigned sex rather than their gender identity increases the likelihood that a person’s transgender status will be disclosed to others, exposes them to a significant risk of mistreatment, and undermines the health benefits of their social transition,” the lawsuit states.
From a legal perspective, the challengers say the state law, as it is being applied, interferes with the constitutional right of individuals who want an amended birth certificate “to choose whether to undergo a particular medical treatment.”
“Decisions regarding medical treatment should be made based on the advice of medical and mental health professionals, consistent with the prevailing standards of care,” the lawsuit states. “However the importance of the birth certificate as an identity document impermissibly pressures transgender people into undergoing surgeries that may be medically necessary simply to correct their birth certificates.’’
But in the new legal filing, attorney Daniel Struck, representing the health department, told Soto there is no legal basis for him to void laws that govern the requirements for an amended birth certificate, even if they have claimed a “protected fundamental liberty interest,” something he does not concede.
“They cannot demonstrate that Arizona’s vital records law — on their face — deprive them of any liberty interest,” he said. Struck said anyone can file a request to amend a birth certificate.
He also said there is nothing discriminatory in the law.
“Whatever hardships or inconveniences may exist with these requirements, they apply equally to all Arizonans,” he said.
More to the point, Struck said there are no grounds to claim the laws were enacted with discriminatory intent. In fact, he said, the evidence shows the reverse is true.
He pointed out the original 1913 law spelled out birth certificates document a baby’s external genitalia at birth.
It was in 1967 lawmakers added the allowance for amendments on the certificates if the person underwent a surgical procedures or it was discovered their chromosomal count differed from the sex marked on the certificate.
“That was not a slight towards transgender persons,’’ Struck said. “Before that addition, nobody could amend the sex field on their birth certificate, and the new law goes further than the federal guideline.’’
In 2004 lawmakers added the provision about honoring court orders.
“The lack of any evidence of discriminatory intent or animus refuses any contention that the laws are the result of anti-transgender bias,” Struck said.
He also said nothing in the law forces a transgender person to disclose that status.
“The parties agree that the sex field on a birth certificate does not disclose a baby’s gender identity,” Struck said.
“Gender identity is not anatomical but rather a person’s inner sense of belongings to a particular sex, such as male or female, which is only detectable by self disclosure,” he said. “In other words, not all transgender persons align their physical characteristics, voice, mannerisms, and appearances to their gender identity.”
If Soto blocks the state from enforcing its current requirement for sex-change surgery before a birth certificate can be altered, it would allow others who are transgender to seek to have a new designation of their sex on those certificates.
That would mean that the official state record presented to school officials would show transgender girls enrolled in schools as girls.
And that would undermine efforts by state schools chief Tom Horne and key Republican lawmakers in a separate federal court lawsuit to defend a 2022 law that bars transgender girls — who they argue really are biological boys — from participating in girls’ sports.
It also could affect perennial legislative efforts to force transgender individuals to use a restroom that corresponds to their sex assigned at birth — the one currently on their birth certificates.