Volume 26

Challenging Inaccurate Sex Designations on Birth Certificates Through Disability Rights Law

by Kevin M. Barry

Despite the growing visibility and acceptance of transgender people in recent years, transgender people remain a “historically persecuted and politically powerless” class who “face discrimination, harassment, and violence because of their gender identity.” Nowhere is this more evident than in the actions of the Trump administration, which has relentlessly pursued policies to the detriment of transgender people. These policies include: attempting to rescind regulations that protect transgender people from healthcare discrimination under the Affordable Care Act in 2016; reinstating a ban on military service by transgender service members who, according to the President, are a “burden[]” and a “disruption;” and rescinding a policy that prohibits schools from denying transgender students access to gender-appropriate restroom facilities.

But there is one area of the law where an opposite trend has emerged: Disability rights law. People with gender dysphoria—the clinically significant distress experienced by transgender people who cannot live consistent with their gender identity—have secured protection under the Americans with Disabilities Act of 1990 (“ADA”) and its predecessor, Section 504 of the Rehabilitation Act (“Section 504”),despite decades-old language excluding various transgender-related conditions. In 2017, for example, a transgender worker named Kate Lynn Blatt successfully claimed protection under the ADA for discrimination she experienced on the job, and in 2018, a transgender inmate successfully claimed protection under the ADA and Section 504 for discrimination she experienced while incarcerated.

More disability rights challenges await—including challenges to restrictive birth certificate laws that require people to undergo gender confirmation surgery (“GCS”) in order to change the sex designation on their birth certificates. Although vulnerable to attack on substantive due process and equal protection grounds, restrictive state birth certificate laws plainly violate the ADA and Section 504 because they discriminate against people with gender dysphoria who do not undergo surgery.

This Article considers the disability rights challenge to discriminatory birth certificate laws. Part II provides context for this challenge by discussing transgender status and its relationship to the diagnosis of gender dysphoria. Building on the briefing in several district court cases, Part III analyzes why a state’s refusal to change the sex designation on a birth certificate absent proof of GCS violates Title II of the ADA and Section 504. Part IV addresses several counterarguments, and Part V offers some concluding remarks.

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