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F.V. v. Barron

United States District Court, D. Idaho

March 5, 2018

F.V. and DANI MARTIN, Plaintiffs,
RUSSELL BARRON, [1] in his official capacity as Director of the Idaho Department of Health and Welfare; ELKE SHAW-TULLOCH, in her official capacity as Administrator of the Division of Public Health for the Idaho Department of Health and Welfare; and JAMES AYDELOTTE, in his official capacity as State Registrar and Chief of the Bureau of Vital Records and Health Statistics, Defendants.


          Candy W. Dale, Judge


         Transgender individuals born in Idaho cannot obtain a birth certificate with the listed sex matching their gender identity. The Idaho Department of Health and Welfare (IDHW) interprets state law to bar changes to the listed sex unless an applicant can show there was an error of identification at birth. Therefore, as a policy, IDHW categorically and automatically denies applications to change the listed sex for any other reason. The questions presented to the Court are whether IDHW's interpretation, as applied, violates the Equal Protection and Due Process clauses of the Fourteenth Amendment to the Constitution of the United States, and whether it impermissibly compels speech in violation of the First Amendment.

         As a preliminary matter, the Court notes the rare posture of the case. Plaintiffs, two transgender women born in Idaho, bring this action under 42 U.S.C. § 1983, asking the Court for a declaration that IDHW's policy violates their constitutional rights and the rights of others similarly situated. Plaintiffs request that the Court apply heightened scrutiny review, and declare that IDHW's policy violates the Equal Protection Clause. They also seek a ruling that the policy infringes upon due process rights to informational privacy, individual liberty, autonomy, and dignity. Plaintiffs request further that the Court find that IDHW's policy impermissibly compels speech in violation of the First Amendment to the Constitution. Plaintiffs ask the Court to enjoin Defendants, and others subject to the injunction, from enforcing the policy.

         In turn, Defendants do not defend the constitutionality of the policy. Instead, they admit it is unconstitutional. Specifically, that it violates the Equal Protection Clause, failing minimum scrutiny review because “a prohibition against changing the sex designation on the birth certificate of a transgender individual who has undergone clinically appropriate treatment to permanently change his or her sex” bears no rational relationship to a conceivable government interest. (Ans. to First Am. Compl., Dkt. 19 at 2-3 ¶ 5.) Defendants assert that, once they have an order from the Court in hand, they will create a new rule permitting transgender individuals to change the sex listed on their birth certificates. (Oral Argument at 9:50, F.V. v. Armstrong et al., No. 1:17-CV-00170-CWD (February 1, 2018).) Defendants indicate also that the new rule will include a provision that any revision history related to changes to the listed sex or name changes will not be marked on the reissued birth certificates of transgender individuals. Defendants further indicate they cannot proceed to create a rule until they receive a court order (Oral Argument at 9:51, F.V. v. Armstrong et al., No. 1:17-CV-00170-CWD (February 1, 2018).)

         Defendants assert that, because they have made these concessions, the Court should exercise judicial restraint and decide the Plaintiffs' motion on the narrowest ground-that the current policy, as applied, is not rationally related to a legitimate government interest, violates the Plaintiffs' equal protection rights, and is thus unconstitutional under minimum scrutiny review.

         Plaintiffs counter that, in the face of pervasive government discrimination against transgender individuals, the Court has a constitutional duty and inherent authority to define the level of scrutiny that should be applied to their equal protection claim, and should determine favorable judgment is warranted on the basis of the other constitutional claims-in addition to fashioning a remedy mandating equal treatment.

         The Court will not reach Plaintiffs' Due Process or First Amendment claims for the following reasons. First, the Court finds resolution of the Equal Protection Clause claim captures “the essence of the right in a more accurate and comprehensive way” than the Due Process Clause, “even as the two Clauses may converge in the identification and definition of the right.” Obergefell v. Hodges, 135 S.Ct. 2584, 2603 (2015). The substance of Plaintiffs' First Amendment claim is that if a birth certificate is reissued to a transgender individual, and the reissued birth certificate includes the revision history, it will impermissibly compel speech-i.e. it will force an individual to disclose their transgender status when they would not ordinarily do so. Given Defendants' concession and agreement, the compelled speech concern falls away, and the merits of this claim need not be addressed by the Court.

         After careful consideration, the Court finds IDHW's policy of categorically and automatically denying applications submitted by transgender individuals to change the sex listed on their birth certificates is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. The Court finds further that any constitutionally sound rule must not include the revision history as to sex or name to avoid impermissibly compelling speech and furthering the harms at issue. The Court notes also that the new rule should withstand heightened scrutiny review to fall within the contours of equal protection law. To reasonably assure the rule and remedy comply with such existing law, the Court will discuss the same after presenting the background, introducing the parties, and outlining the standard of review.


         1. Idaho Vital Statistics Laws

         States are responsible for the development and implementation of laws related to vital events such as recording births and deaths. However, most states, including Idaho, use the Model State Vital Statistics Act published by the Centers for Disease Control and Prevention as a basis for state law.[2] The Idaho Vital Statistics Act (Act), Title 39, Chapter 2 of the Idaho Code, authorizes the Idaho Board of Health and Welfare (Board) to propose rules to carry out its provisions related to vital statistics-the Vital Statistics Rules (Rules). IDAPA IDHW is the state agency responsible for enforcement of the Act and the Rules, (together, vital statistics laws) for providing the official interpretation of such laws, and for developing temporary and final proposed rules. State legislative approval is necessary to enact final proposed rules into law.

         Idaho's vital statistics laws require that all amended birth certificates be marked as “amended, ” including a record of the nature of the change, unless the change is made under one of the following circumstances: (1) minor corrections made within one year after the date of the event necessitating the correction; (2) voluntary acknowledgements of paternity and non-paternity; and (3) for changes to name and paternal and maternal information in instances of adoption. Idaho Code §§ 39-250, 39-258-59; IDAPA In these circumstances, the vital statistics laws require the amendments not be marked or noted on the birth certificate.[3] A catch-all provision applies to any amendment not specifically provided for in the vital statistics laws. IDAPA Notably, amendments made under the catch-all provision must be described on the birth certificate.

         All applications to amend birth certificates are reviewed by the state registrar. The registrar's determination must serve the objectives of the vital statistics laws and the best interests of the public. IDAPA When applications are denied, an individual has a right to petition a court for an order requiring the registrar make the requested amendment. Idaho Code § 39-250(5).

         As explained above, IDHW interprets Idaho vital statistics law to prohibit changes to the listed sex unless there was an error in recording the sex at birth. Notably, IDHW asserts that Idaho birth certificates reflect the “sex” of a person at birth and do not contain a “gender marker” designation. (Ans. to First Am. Compl., Dkt. 23 at 2 ¶¶ 3-4.) From this interpretation comes IDHW's policy of automatically and categorically denying applications made by transgender individuals for the purpose of changing the listed sex to reflect their gender identity.[4]

         2. Biological Sex, Gender Identity, Transition

         There is scientific consensus that biological sex is determined by numerous elements, which can include chromosomal composition, internal reproductive organs, external genitalia, hormone prevalence, and brain structure.[5] Sex determinations made at birth are most often based on the observation of external genitalia alone. World Professional Association for Transgender Health, Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People at 97 (7th Version, 2011) (hereinafter “WPATH Standards of Care”). For most people, this determination aligns with gender identity and gender expression. Id. Of importance here, however, are instances where it does not.

         Gender identity, also known as core gender, is the intrinsic sense of being male, female, or an alternative gender. WPATH Standards of Care at 96. Transgender is an adjective used to designate “a person whose identity does not confirm unambiguously to conventional notions of male or female gender.”[6] Put another way, transgender is an adjective used to describe a person who has a gender identity that differs, in varying degrees, from the sex observed and assigned at birth. WPATH Standards of Care at 97.

         Transgender individuals often suffer emotional distress in the process of recognizing and responding to the complex social and personal scenarios that result because their gender identity does not align with birth-assigned sex. (Dkt. 28-5 at 8; See e.g., American Medical Association Resolution 122 (A-08) at 1 (2008)). A clinical medical condition, known as gender dysphoria, can result from such distress.[7] Id.

         Symptoms include anxiety and depression, suicidality, and other serious mental health issues. Id.; WPATH Standards of Care at 25.

         Transgender individuals, especially those suffering from gender dysphoria, often proceed through a process known as transition, defined as follows:

Transition is a period of time when individuals change from the gender role associated with their sex assigned at birth to a different gender role. For many people, this involves learning how to live socially in another gender role; for others this means finding a gender role and expression that is most comfortable for them. Transition may or may not include feminization or masculinization of the body through hormones or other medical procedures. The nature and duration of transition is variable and individualized.

WPATH Standards of Care at 97.

         In other words, transition is the process where a person works to bring their lived experience and outer appearance into alignment with their gender identity. Transition can include medical treatments, such as hormone therapy and surgery, but is often limited to social transition. WPATH Standards of Care at 71, 97. Not all transgender people choose to undergo surgery as a part of the transition process. This is due to numerous potential factors, including whether surgery is medically necessary, and personal and financial factors such as lack of insurance coverage. (See First Am. Compl., Dkt. 19 at 6 ¶ 24; see also Ans. to First Am. Compl., Dkt. 19 at 5 ¶ 24.)

         Social transition includes changes in clothing, name, pronouns, hairstyle, and identity documents to reflect one's gender identity. Id. at 9-10. “A complete transition is one in which a person attains a sense of lasting personal comfort with their gendered self, thus maximizing overall health, well-being, and personal safety.” (Decl. of Dr. Randi Ettner, Dkt. 28-5 at 10.)

         3. Discrimination Against Transgender Individuals

         Mismatches between identification documents and outward gender presentation can create risks to the health and safety of transgender people. Transgender people who present mismatched identification are verbally harassed, physically assaulted, denied service or benefits, or asked to leave the premises. James et al., The Report of the 2015 U.S. Transgender Survey, Washington D.C., National Center for Transgender Equality at 7 (2016) (hereinafter Transgender Survey).[8] According to the Federal Bureau of Investigation, 1.7 percent of all hate crimes reported by law enforcement agencies in the United States in 2015 were motivated by gender-identity bias. 2015 Hate Crime Statistics, FBI, Criminal Justice Information Services Division, (last visited Mar. 5, 2018).

         Statistics regarding the ongoing discrimination transgender individuals face highlight why involuntary disclosure of transgender status creates these risks. For instance, nearly twenty-five percent of surveyed college students, when perceived as a transgender person, were verbally, physically, or sexually assaulted in 2015. Transgender Survey at 9. This figure tracks the percentage of workers reporting mistreatment in the workplace due to gender identity. Id. at 10. More than seventy-five percent of transgender workers take steps to avoid such mistreatment at work by hiding or delaying their gender transition, or by quitting their job. Id. at 11.

         Across all environments, almost fifty percent of transgender people surveyed for the 2015 report responded that they had been verbally harassed due to their gender identity. Id. at 13. Nearly one in ten reported being physically assaulted because of their gender identity. Id. Notably, the reported lifetime suicide attempt rate for transgender people is nearly nine times the rate of the United States population on average. Id. at 8.

         4. The Plaintiffs

         Plaintiffs are two transgender women who were born in Idaho. Each Plaintiff has undergone the process of transition but is unable to obtain a birth certificate that reflects her gender identity.

         F.V. is a 28-year-old woman born in Idaho. She is a transgender person who was assigned the sex of male at birth. Although F.V. states that she knew from approximately age 6 she was female, she began to live openly as a female when she was 15 years old. She has lived as a woman since that time, and asserts that doing so has been essential to her sense of self. F.V. relates that she “cannot imagine living life ...

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