On March 5th, a federal court in Idaho ordered that state to begin allowing persons who identify as transgender to obtain revised birth certificates which would designate them as male or female on the basis of their “gender identity” rather than their biological sex at birth.
This decision by U.S. Magistrate Judge Candy W. Dale was both legally and logically wrong.
Ironically, Judge Dale’s written decision contains within it all the facts necessary for a reasonable decision—but she ignored them. Let me begin by quoting two key passages from her actual decision (most source citations omitted):
As explained above, IDHW [Idaho Department of Health and Welfare] 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. 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.
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. [Footnote: The American Psychology [sic] Association defines sex as “one’s biological status as either male or female” that “is associated primarily with physical attributes such as chromosomes, hormone prevalence, and external and internal anatomy.” Transgender People, Gender Identity and Gender Expression, American Psychological Association (2018), http://www.apa.org/topics/lgbt/transgender.aspx.] Sex determinations made at birth are most often based on the observation of external genitalia alone. For most people, this determination aligns with gender identity and gender expression. 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. Transgender is an adjective used to designate “a person whose identity does not confirm unambiguously to conventional notions of male or female gender.” 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.
. . .
1. The Equal Protection Clause
The Equal Protection Clause of the Fourteenth Amendment requires that all similarly situated people be treated alike. Equal protection requirements restrict state legislative action that is inconsistent with bedrock constitutional guarantees, such as equality in treatment. An equal protection claim is established when plaintiffs show they were treated differently than other similarly situated people. Yet, states are given significant leeway to establish laws to effectively govern citizens and remedy societal ills. Because of this, successful equal protection claims additionally require plaintiffs to show the difference in treatment was the result of intentional or purposeful discrimination.
The whole case could have been settled at this point. Here is what Judge Dale could have said—but, unfortunately, did not:
Since there remains a scientific consensus that “sex” is an inherently different characteristic from “gender identity” or “core gender,” (the former being biological, the latter psychological), and since Idaho birth certificates note only the “sex” of the individual and not the “gender” or “gender identity,” the plaintiffs’ claims fail.
It is understandable that plaintiffs may experience hardships as a result of their “gender” or “gender identity” not matching the “sex” listed on their birth certificates. It is understandable that they might prefer that all identity documents, including birth certificates, should reflect only the male or female designation that they prefer as their “gender identity.” However, these are concerns that they must take to the legislature, not the courts.
For now, Idaho has made the policy decision that birth certificates should reflect the “sex” of the child, defined in biological terms. In the vast majority of cases, this is readily identifiable (and in the rare exceptions, Idaho law and policy already allows correction if the biological sex is identified incorrectly). This decision certainly has a rational basis, since it is hard to even conceptualize how anyone could identify or assign a “gender” or “gender identity” (as distinct from “sex”) to a newborn infant.
It would be within the power of the legislature to authorize retroactive changes to birth certificates in the way the plaintiffs desire. Some legislators may see an individual’s psychological “gender identity” as a more fundamental aspect of who the person is, and may favor the policy change requested by plaintiffs as a way of alleviating the inconvenience and suffering endured by transgender individuals. However, some legislators may see an individual’s biological “sex” as a more fundamental aspect of who the person is, and may prefer to preserve the integrity and accuracy of the birth certificate as a permanent factual record of the individual’s biological sex at birth.
This is a policy choice that only the legislature can make. The Constitution of the United States does not speak to the issue one way or the other. Plaintiffs argue that Idaho’s current policy violates the constitutional guarantee of “the equal protection of the laws.” Yet this claim surely fails, since the current policy treats everyone alike. All persons have their biological sex recorded at birth on their birth certificate. No one has the right to alter this portion of the birth certificate. And it cannot be claimed that this policy is “the result of intentional or purposeful discrimination” against transgender persons, since the policy was in place long before there was any legal or legislative awareness of “gender dysphoria.”
Plaintiffs may argue that the “unequal” treatment consists of the fact that transgender people are denied a birth certificate on which the designation of “sex” corresponds to their “gender identity,” while non-transgender people have birth certificates in which the two aspects of identity match. However, this situation is simply the result of the individual’s unusual transgender condition itself—not any intentional or irrational discrimination on the part of the state.
Unfortunately, this judge substituted her own hazy (but politically correct) philosophy for such a straightforward reading of the law. This philosophy does not reflect that “our medical understanding of biological sex and gender has advanced,” as Judge Dale asserts. In fact, her declaration that “there is medical consensus that gender identity plays a role in an individual’s determination of their own sex” is directly contradicted by her earlier acknowledgment that “sex” and “gender identity” remain defined by major medical and psychological associations as two different things. What her decision reflects is not the latest in medical science, but is instead a purely metaphysical view that the mind is everything and the body is nothing when it comes to deciding who is male or female.
She is entitled to hold (or blindly accept) this trendy opinion, but she has no right or power to impose it as law upon the state of Idaho.
First published at FRC Blog
The opinions expressed by columnists are their own and do not necessarily represent the views of Barb Wire.