Ohio, Tennessee, and Puerto Rico are the only U.S. jurisdictions that do not allow transgender people to correct the gender marker on their birth certificates. A birth certificate is an identity document routinely used for many purposes. Ohio provides all other individuals born in the state with a birth certificate that accurately reflects their gender identity and other information. Transgender people, however, are denied this right. Because transgender Ohioans can correct their gender markers on other key identity documents including Ohio drivers’ licenses, and on federal documents such as passports and social security cards – and because transgender people are typically perceived by others accurately and consistent with their gender identity – an incorrect gender marker on their birth certificates discloses their transgender status. This unwanted revelation of extremely personal and intimate information causes transgender people to suffer discrimination in housing and employment, invasions of privacy, harassment, humiliation, stigma, and even violence.
Ohio’s refusal to provide transgender individuals with birth certificates that accurately reflect their gender violates the Equal Protection Clause of the Fourteenth Amendment, their rights of privacy and personal autonomy established by the Due Process Clause, and their First Amendment right to refrain from speaking by compelling them to disclose their transgender status and to identify with a gender that misrepresents who they are.
On March 29, 2018, we filed a complaint in the U.S. District Court for the Southern District of Ohio. Plaintiffs are four transgender people born in Ohio who have suffered harm as a result of their incorrect birth certificates: Stacie Ray, Basil Argento, Ashley Breda, and Jane Doe. Defendants are Ohio Department of Health’s director Lance Himes and the Office of Vital Statistics’ chief and state registrar. On May 22 Defendants filed a Stipulated Notice of Extension of Time to respond to our complaint. The parties held their 26(f) conference on June 25 and filed the Rule 26(f) Report on July 9. The initial pretrial conference with the court occurred on July 18. On July 20 Defendants filed a Motion to Stay Discovery pending a ruling on Defendants' Motion to Dismiss, as well as an Emergency Motion for Interim Stay of Discovery pending a ruling on the Motion to Stay Discovery. We opposed both motions. On August 2 the Court granted Defendants’ Motion for an Interim Stay but denied Defendants’ Motion to Stay Discovery. Following that, the parties exchanged initial disclosures. The Defendants provided written responses to our discovery request on November 9, but did not produce any documents responsive to our written discovery requests, citing the need for a protective order. On December 6, the Court entered a Stipulated Protective Order regarding the treatment of confidential documents during discovery. On June 21, 2019, the Federal District Court for the District of Kansas entered a consent decree declaring Kansas’s prohibition on correcting birth certificates for transgender people unconstitutional, and ordering a new process allowing such corrections. As a result, Tennessee and Ohio remain the only states that do not allow transgender people to correct the gender markers on their birth certificates. On July 2, we filed a notice informing the Court of this development. Defendants filed a response on July 3. On September 12, the Court denied Defendants’ Motion to Dismiss. The Court’s opinion focused on the Substantive Due Process privacy claim. The Court stated that it did not need to rule on our other claims, since dismissal of the case was defeated by virtue of the viable Substantive Due Process privacy claim. On September 27 Defendants filed their Answer. To date, all plaintiffs, all experts, and a representative of the Ohio Department of Health have been deposed. Discovery closed on October 30, 2019. The parties filed cross Motions for Summary Judgment on January 16, 2020 and summary judgment briefing concluded February 27. On June 29, 2020, we filed a Notice of Supplemental Authority directing the court’s attention to the United States Supreme Court’s Title VII decision in Bostock v. Clayton County, 140 S. Ct. 1731 (June 15, 2020), which held that the meaning “because of sex” in the context of employment discrimination includes discrimination on the basis of sexual orientation and gender identity. On December 16, the court issued its opinion ruling in favor of the Plaintiffs, holding the State’s policy banning transgender people from correcting the gender markers on their birth certificates violated plaintiffs’ constitutional rights of privacy and equal protection. This was a final order, ending the case. The deadline for the State to appeal was January 15, and no notice of appeal was filed.
On February 1, 2021, we filed a motion for fees and costs, seeking over $500,000 as the prevailing party in the litigation. On February 22, Defendants requested a 30 day extension to respond to our fee motion. We did not oppose the extension request.
On March 25, we filed a joint motion to stay fee briefing and set regular status conferences before the Court to help the parties progress through our remaining issues of (1) ODH’s creation of a new policy in compliance with the Court’s December Order, (2) our fee petition, and (3) an order from the district court to ODH requiring it to issue corrected birth certificates for the Plaintiffs In May, ODH announced that it was implementing the same procedure for sex marker corrections as for other birth certificate corrections: upon receipt of a court order, ODH will make the requested changes and file the original birth certificate in a secure vault. The new document will have no indication on its face that it has been changed. We announced this process to the public on May 25. We continue to work with Equality Ohio, TransOhio, Equitas, and other organizations to provide support in the form of legal clinics and direct legal representation for transgender individuals seeking to change the gender marker on their birth certificate, and to identify any probate court issues that may require our attention.
The four Plaintiffs have now received their new birth certificates and the parties concluded their negotiation over our fee petition for fees and costs. On August 20, parties submitted a Proposed Consent Judgment to the Court, which Judge Watson entered on August 23. Pursuant to the judgment, the Ohio Department of Health will pay plaintiffs’ counsel the sum of $380,000 in fees and costs, to be apportioned among them. We continue to work with Equality Ohio, TransOhio, Equitas, and other organizations to provide support in the form of legal clinics, educational materials and direct legal representation for transgender individuals seeking to change the gender marker on their birth certificate, and to identify any probate court issues that may require our attention. On August 17, in response to the decision in this case, the Ohio Supreme Court adopted a new standard probate form for use when seeking a birth certificate correction. We received our fee award on September 23 and have disbursed funds to co-counsel. We retain about $212,000.