Prizm News / June 1, 2018 / By Ramona Peel
We’re one of just three states where transgender people can’t update their birth certificates. It’s a humiliating and dangerous policy that a federal lawsuit aims to change.
By Ramona Peel
Coming out is a milestone for any LGBTQ person, and it’s one of the most deeply personal decisions anyone can make.
The questions we weigh are momentous: How psychologically corrosive is it to hold this inside? Can I stand to stay in the closet one second longer? How will coming out affect my relationships with my loved ones, my friends, my co-workers? Will I get fired if I come out? Will I get kicked out of my house? Am I putting myself in danger?
For all these reasons, it’s obvious why it must be left up to each of us to determine the time, manner and place of our own coming out. But transgender and nonbinary people born in Ohio often don’t get to choose.
Ohio is one of only three states—along with Tennessee and Kansas—that do not allow people to change the gender marker on birth certificates issued by the state government.
That refusal locks trans women into being identified as male and trans men into being identified as female on a critical document that follows them throughout their lives.
Birth certificates don’t just get locked in a dusty file cabinet in the basement of a county courthouse. They’re required to get driver’s licenses, marriage licenses and passports, and they’re often requested by employers, banks and others as an official form of identification.
“Life becomes very complicated, even cruel, when a transgender person has to produce their Ohio birth certificate. And unfortunately, being outed as transgender often carries serious consequences, ranging from denial of a job or housing to verbal harassment and even physical violence.”
American Civil Liberties Union of Ohio
Those demands can out transgender Ohioans against their will, often in very public places, and often to total strangers who can be annoyingly inquisitive at best and downright nasty at worst.
“Life becomes very complicated, even cruel, when a transgender person has to produce their Ohio birth certificate,” says Susan Becker, general counsel for the American Civil Liberties Union of Ohio. “And unfortunately, being outed as transgender often carries serious consequences, ranging from denial of a job or housing to verbal harassment and even physical violence.”
Bureaucratic settings that are merely annoying for cisgender people have been traumatic for Stacie Ray of Columbus. She recalls leaving one government office in tears after a clerk loudly informed her that the gender markers on her birth certificate and driver’s license didn’t match. She quit a new job after being involuntarily outed over identification issues; one coworker started calling her “the freak,” and another threatened to beat her up if she used the women’s restroom.
“This isn’t just humiliating, it’s dangerous,” she says.
Add to that the fact Ohio has no statewide protections against discrimination on the basis of gender identity. Outside of 20 municipalities that have passed local laws against such discrimination, transgender and nonbinary folks can legally be fired and denied employment, housing and public accommodations simply because of who they are. Federal nondiscrimination laws exclude gender identity as well.
According to a 2015 study by the National Center for Transgender Equality, 34 percent of transgender and nonbinary Ohioans reported being fired, denied a promotion or experiencing some other form of mistreatment in the workplace.
Twenty-five percent have experienced some form of housing discrimination in the previous year, such as being evicted or denied a lease because of their gender identity. And 32 percent experienced at least one type of mistreatment in public accommodations.
“A rule providing an avenue to obtain a birth certificate with a listed sex that aligns with an individual’s gender identity promotes the health, well-being and safety of transgender people without impacting the rights of others.”
—Judge Candy Dale
U.S. District Court, Idaho
The ACLU and Lambda Legal, a national LGBTQ civil rights group, filed a federal lawsuit in late March to challenge Ohio’s stand against allowing people to change the gender markers on their birth certificates. Ray is one of four plaintiffs.
The tactic has had success in other states. In March, a federal district court ruled that Idaho must allow gender marker changes.
“A rule providing an avenue to obtain a birth certificate with a listed sex that aligns with an individual’s gender identity promotes the health, well-being and safety of transgender people without impacting the rights of others,” Judge Candy Dale wrote, according to the Idaho Statesman newspaper.
The ACLU hopes for a similar ruling in Ohio.
“It is indeed a curiosity as to why Ohio continues its discriminatory birth certificate policy when…all but two other states and the federal government allow correction of gender markers on other identification documents and official records,” Becker says. “It’s not clear whether Ohio’s current birth certificate policy stems from state officials’ animus toward transgender people or just bureaucratic inertia, but either way, the policy must be changed.”
The Ohio Department of Health, which maintains the records and the policy that keeps transgender people from correcting them, told Prizm in March that it doesn’t comment on pending litigation. One thing is clear, though: The state’s policy has nothing to do with maintaining records as they were created originally. People can change a child’s name, parents and other information on Ohio birth certificates.
Adding to the confusion is the fact that Ohio—and the federal government—does allow changes to gender markers on other identity documents, such as driver’s licenses and U.S. passports.
That means a trans person born in Michigan who ends up residing in Ohio is able to align all their personal documentation with their gender identity: birth certificate, driver’s license, Social Security records, U.S. passport and others.
If they have a sibling born just over the state line in Toledo who also happens to be trans, though, Ohio policy sticks that sibling forever with an incongruent birth certificate that can repeatedly and coercively out them as trans.
Becker reflected on what victory in the case would mean for Ohioans.
“On a practical level, it will allow them to align the gender markers on all of their identification documents. They will no longer be compelled to reveal one of the most personal aspects of their lives every time they show their birth certificate,” she says.
“In other words, transgender people will be on equal footing with cisgender people when applying for jobs, or housing or other necessities of life.”
Work on the issue won’t end with victory in this case, though. The lawsuit against the Ohio Department of Health is silent on the needs of nonbinary people who want to change the gender marker on their birth certificates to something other than male or female.
Currently, only Washington, Oregon and California allow nonbinary gender markers on birth certificates.
“Having the correct gender marker on my birth certificate would open the door for correct markers on other documents. Having non-binary genders legally recognized would also go a long way to broader acceptance in general,” says Carrie Frederick, a school counselor in Columbus who identifies as nonbinary.
Ideally, Frederick says, the lawsuit would push for all gender options immediately. But, they add: “I would still rather see some progress than no progress for trans people in Ohio.”
Becker says progress on this issue can lead to progress on others.
“Attorneys who litigate cutting-edge civil liberties issues have to make very difficult decisions as to how far we can push the envelope on any particular issue, at any given time, and in any given court,” she says. “I can tell you that the ACLU and our co-counsel in this case are deeply committed to fighting the discriminatory treatment that nonbinary people all too frequently face, and that this lawsuit is a critical building block in that fight.”
Frederick summed up why the effort is important.
“There are tons of trans people who are living with these negative impacts daily,” they say. “There is no reason to put another person in such a position, especially when almost every other state already has provisions for trans people to change their gender marker, and several are beginning to include nonbinary markers as an option.”
Ramona Peel is the lead trainer for the Equitas Health Institute for LGBTQ Health Equity, the education, research and community engagement arm of Equitas Health. Learn more atequitashealthinstitute.com or contact the institute at email@example.com.