By Howard Fischer
Mail | Twitter: @azcapmedia

TUCSON — A federal judge will allow several children to sue on behalf of all transgender people born in Arizona to force the state to change the gender on their birth certificates.

In a new order, Judge James Soto said that the individuals who filed suit in 2020, all minors, want to permanently bar the Arizona Department of Health Services from enforcing a provision of state law that says the agency will not amend a birth certificate based solely on the person’s claim argument they have “gender dysphoria” and do not identify with the gender they were assigned at birth.

Instead, the agency will act only after the person has undergone a sex change operation or has a chromosomal count that establishes the sex of the person differs from what is on the birth certificate.

And either of those requires a verified statement from a physician.

Soto has yet to rule on the claim. But he said it makes sense to have this handled as a class-action lawsuit, meaning that any ruling he would issue would affect not just the individuals who filed suit but anyone else who is transgender and wants an Arizona birth certificate altered.

“Such an injunction in this matter would protect all proposed class members’ due process and equal protection rights, and otherwise make it less burdensome for transgender individuals to amend the gender marker on their birth certificates in Arizona through a private administrative process,” the judge wrote.

There was no immediate response to the order from the health department which already has asked Soto to dismiss the case. Among the agency’s legal arguments is that any injuries that the plaintiffs claim were not caused by the state and that the court cannot rewrite the challenged law.

But Rachel Berg, an attorney with the National Center for Lesbian Rights, applauded the decision.

“The class action motion is important here because it will allow a ruling in this case to apply to all transgender people born in Arizona,” she told Capitol Media Services.

Soto noted that NCLR has submitted demographic studies reflecting that there are likely over 30,000 transgender individuals in Arizona.

“And there are likely thousands of transgender individuals who would amend their Arizona birth certificates through a private administrative process if it was available in Arizona,” he said.

The outcome of this lawsuit could have ripple effects.

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 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.

And 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.

The case, first filed in 2020, is on behalf of three transgender boys whose Arizona birth certificates list them as female and a transgender girl identified as male. There is a fifth transgender girl in the lawsuit, the original plaintiff, who 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.

“Depriving transgender young people of birth certificates that accurately reflect who they are forces them to disclose their transgender status — information that is private and sensitive — without their consent whenever they need to rely on birth certificates to establish their identity,” the attorneys said.

And they said a national survey conducted in 2015 by the National Center for Transgender Equality found that nearly a third of those who had to show an identity document with a name or sex that did not match their “gender presentation” were verbally harassed, denied benefits or service, asked to leave, or assaulted.

Complicating matters is a 2022 law signed by Gov. Doug Ducey which bars doctors from performing “irreversible gender reassignment surgery” on minors — the procedure that is now first required to allow the health department to change a child’s birth certificate.

“That just shows the problem with this unconstitutional nature of the statute,” Berg said of that statute.
“Transgender young people are unable to amend their birth certificate to reflect their gender identity because of this outdated surgical requirement,” she said. “And it leaves them really in horrible condition, subjected to harassment and violence and a risk of discrimination as well.”

Challengers already have scored at least a partial victory. Soto previously has ruled that the requirement in state law for a sex-change operation to allow for a change in birth certificates invades the constitutional rights of plaintiffs.

No date has been set for a trial.