What’s your gender? Ruling challenges right to make birth certificate changes

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PARKERSBURG, WV Gender marker changes have traditionally been done within county circuit courts, but a new ruling by the West Virginia Supreme Court of Appeals challenges this right. A gender marker is the M or F on a birth certificate that indicates a person’s gender. 

The memorandum decision details the story of a minor who petitioned for a change of gender designation on their birth certificate in Wood County. According to the decision, the minor successfully underwent female to male transition gender reassignment surgery last year.  

The Wood County Circuit Court denied the petition, referencing a West Virginia code on protecting “the integrity and accuracy of vital records.” The court interpreted, in short, amending a birth certificate to reflect a gender change did not fall within the statutory authority of the court.  

The petitioner appealed the circuit court ruling to the state supreme court, who voted four-to-one to uphold the circuit court’s decision.

“This decision from the West Virginia Supreme Court is archaic and discriminatory, and it seems to require transgender people to pretend to be something other than the gender that they are. It exposes transgender mountaineers to further harassment and discrimination.”

Andrew Schneider, Executive Director at Fairness WV

James Barber is a lawyer in Kanawha County who has helped transgender individuals in the past with changing their gender marker. He says the procedure to change a gender marker does not erase the old birth certificate, but rather simply amends it.  

“They do not issue a new birth certificate. They do not go back and issue a new one or change it or block out, they simply cross through, if it’s a male, they cross through the M and put an F and vice versa,” Barber said. 

Birth certificates are routinely changed for many reasons, such as adoption and marriage. Andrew Schneider, Executive Director of Fairness WV, argues not allowing a gender marker to change singles transgender people out for discrimination.

“Birth certificates are not medical or scientific documents. When a baby is born, the doctor does not issue a birth certificate. Instead, the doctor fills out a form that attests to a live birth that they witnessed, and then sometime later, our state’s vital statistics office issues a birth certificate. Also, West Virginia is the fourth state in the country that will now not allow transgender people to amend the sex marker on their birth certificates. Prior to this recent decision from our state supreme court, only Tennessee, Kansas, and Ohio would not allow this type of correction.”

Andrew Schneider, Executive Director of Fairness WV

A study by The William’s Institute says West Virginia has the highest percentage of transgender teens in the nation. Arli Christian, the Campaign Strategist for the ACLU, said that being able to change a gender marker is both practical and an issue of safety. 

“One important thing for people to understand here is that everyone, including transgender people, need access to update identification to go about daily life. To travel, to apply for jobs, go to school, enter public establishments, obtain benefits. So it’s very important that we have policies in place so that people can update the documentation to make sure they have accurate documentation to move through the world. A driver’s license or an ID that has an incorrect gender out a transgender person every time, in any situation they need to use that license, and that exposes people to a variety of negative outcomes. People receive unnecessary scrutiny from law enforcement, denial of housing, denial of employment, health, public benefits, verbal harassment, often physical violence.” 

Arli Christian, Campaign Strategist for the ACLU
Courtesy: The National Center for Trans Equality

A study by the National Center for Trans Equality found two-thirds of trans people do not have an updated name or gender change on their ID documents. Nearly one-third (32%) of the respondents who have shown an ID with a name or gender that did not match their gender presentation were verbally harassed, denied benefits or service, asked to leave, or assaulted.

 Many trans people say they will try to avoid putting themselves in situations where they have to show ID out of fear. Elijah Barksdale, a transgender man, said he would do whatever it takes to avoid traveling by plane. 

“That’s what I’m scared to do actually because I know people on InstagramI talk to people all over the world who are transgender, and they tell me stories, and I’m scared to go out of the state since I have transitioned. Last time I went outside of the state on an airplane or out of the United States in general, it was three years ago before I transitioned, so I don’t know if I would do it until I got my name changed. I would drive. I don’t care. I will drive that 20 hours because I’m scared.”

Elijah Barksdale

The dissenting judge, Justice Margaret Workman, wrote a dissent to the memorandum, saying quote, “I dissent from this decision to affirm the lower court ruling because the majority either completely missed the applicable legislative rule which makes clear that the lower court had the authority to rule on this issue; or because they chose to ‘duck’ a controversial issue.” 

The judge argues the case should have been set for argument and consideration rather than resolved in a memorandum decision. Justice Workman cited the Fourteenth Amendment in her argument, which asserts no state shall deprive any person of life, liberty, or property without due process of law. 

Though this might be the end of the line for this particular case, Schneider said there are ways to fight the decision. 

“Large national groups like Lambda Legal have routinely used federal courts to help trans people get corrected birth certificates. In fact, in 2018, a federal court ruled that Idaho’s policy prevented trans people from correcting birth certificates was in violation of the equal protection clause of the 14th amendment. The judge overturned the policy and required state officials to issue corrections for transgender people. So I think that there are other avenues that we can explore to try to find justice and obtain fairness for transgender West Virginians. We just don’t know exactly what route we are going to take yet…I feel ashamed that we’re part of this group of states that discriminate in this way and I will do whatever I can with Fairness [WV] to try and change that.”

Andrew Schneider, Executive Director of Fairness WV

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