Fighting the Gender Marker Ban

By Lauren Means • Photo Courtesy Jamie Combs

Our transgender community has been pummeled this year with legislation geared specifically at limiting their rights. Additionally, Tennessee now stands as the sole state to prevent people from correcting the gender marker on their birth certificate. Not only can this be devastating for someone’s mental and emotional well-being but can cause legal and safety issues when presenting a birth certificate that doesn’t match your ID. 

The U.S. Department of State permits corrections to the gender marker on a person’s passport. Federal agencies — like the Social Security Administration — allow for changes in agency records. Even the Tennessee Department of Safety and Homeland Security authorizes transgender people to correct the sex designation on their driver’s licenses. Many of these changes require proof of identity or citizenship — like a birth certificate. This can lead to individuals being forced to disclose private and sensitive information about themselves in situations where it would normally remain undisclosed.

If every state except for Tennessee and all federal agencies allow for a transgender individual to update all of their personal documentation with correct gender markers, why is the state of Tennessee holding out on allowing a gender marker change on a birth certificate?

A Hostile State

In a state that has already created a hostile environment for transgender people, this gives way for very overt prejudice, discrimination, and harassment by people in positions of power and decision-making. People may be asked invasive and unnecessary questions in situations that require them to present a birth certificate with an incorrect marker. 

These questions are often asked in a very public setting leading to people being “outed.” Whether this is done intentionally or unintentionally, it can make people feel very exposed and distressed.

Equal Protection and Due Process

It has been a long process for states to update laws that allow for gender changes. The first recognized case to consider legal gender change in the U.S. was “Mtr. of Anonymous v. Weiner (1966).” While the courts did not side with the plaintiff, this case did start the conversation. 

The most recent state to authorize gender marker changes is Ohio. In December 2020, the U.S. District Court for the Southern District of Ohio found the birth certificate rule imposed by the state Department of Health and the Office of Vital Statistics was unconstitutional.

This brings us to the present. With Tennessee being the last holdout, there’s a case currently making its way through the courts. On April 23, 2019, lead plaintiff Kayla Gore spoke outside of the federal courthouse in Nashville where she announced a lawsuit being filed against the state of Tennessee naming Gov. Bill Lee and Tennessee Department of Health Commissioner, Lisa Piercey, as defendants. When asked about the case, Gore told Connect, “The Lawsuit Gore v. Lee is the result of many Trans and GNC [Gender Non-Conforming] Tennesseans being able to safely navigate life with a birth certificate that reflects them. For many TGNC people, this makes them whole.”

The suit asserts Tennessee’s ban on changing gender markers is not supported by any compelling, important, or even legitimate government interest while it subjects transgender people to discrimination, harassment and even violence. The suit seeks a determination that the statute is unconstitutional specifically citing the ban is in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; the Due Process Clause of the Fourteenth Amendment to the United States Constitution; and the Free Speech Clause of the First Amendment to the United States Constitution.

Jaime Combs, a strong activist within the transgender community, recently joined the suit. When asked why she joined and why this is an important moment for Tennessee, she had the following to say:

“It is imperative in the march for equality that we recognize individuals for who they are and that their documentation matches their identity. It is time for Tennessee to stop dragging its feet and join the other 49 states in recognizing this civil right of its (Tennessee’s) citizens.

“I was honored to be a part of this lawsuit and this is the third time that I have been part of this effort. Previously in the early 2000s and then later in the early 2010s, there were efforts made to organize litigation against this archaic and discriminatory law but it seemed as if the momentum dwindled when other matters were pushing against our community. 

“Without accurate documentation a marginalized community of transgender Tennesseans is left even more vulnerable, particularly in employment, since Tennessee is a right to work state, and also at this time, the Tennessee legislature has passed some of the most discriminatory and transphobic legislation (particularly targeting our younger transgender brothers and sisters).

“Personally, this law is very frustrating for me as I have transgender friends who were born in Tennessee and who had the right to have affirming documentation (until the law changed in the 70’s due to this right becoming a case of fear-mongering politics).”

The case is currently still open and pending with the U.S. District Court for the Middle District of Tennessee. For updates and more information on this case visit lambdalegal.org/in-court/cases/tn_gore-v-lee.

For more information on name and gender marker changes on legal documents, visit https://transequality.org/documents or https://www.lambdalegal.org/know-your-rights/article/trans-changing-birth-certificate-sex-designations.