State’s Birth Certificate Policy to Get New Look, Top Court Says

The US Court of Appeals for the Tenth Circuit got another chance to look at the constitutionality of an Oklahoma policy against modifying birth certificate sex markers to reflect a transgender person’s gender after the US Supreme Court granted review, vacated the underlying decision, and sent the case back to lower court on Monday.

This was one of several petitions asking the justices to decide if a state law or policy unlawfully discriminated against transgender people under the 14th Amendment equal protection clause. The top court recently answered that question in the negative as to a state’s gender-affirming care ban for minors, but that decision may not control this case, which raises different issues.

Oklahoma Gov. Kevin Stitt (R) asked the high court to consider the issue after the US Court of Appeals for the Tenth Circuit allowed transgender people born in the state to challenge the constitutionality of its policy against such modifications. Stitt argued that the 14th Amendment’s equal protection clause doesn’t require a state to change an official certificate documenting a person’s sex at birth.

The suit is one of several nationwide involving transgender people’s rights in areas ranging from accessing health care to participating in school sports. President Donald Trump indicated his support for entities seeking to curtail those rights in executive orders issued early in his second term.

The case came to the Tenth Circuit on appeal from an order denying a motion to dismiss it. The appeals court ruled that the plaintiffs plausibly alleged the equal protection claim, that the policy purposefully discriminates on the basis of transgender status and sex, and that it wasn’t rationally related to a legitimate state interest or furthered important state interests through means substantially related to them.

The Tenth Circuit denied a rehearing before all its active judges in 2022.

Stitt urged the justices to grant review to resolve a split with the Sixth Circuit, which affirmed the dismissal of a challenge to Tennessee’s birth certificate change policy in July 2024.

The Oklahoma Attorney General’s Office represents the Stitt. Lambda Legal Defense & Education Fund and Orrick, Herrington & Sutcliffe LLP represent the plaintiffs.

The case is Stitt v. Fowler, U.S., No. 24-801, review granted, vacated, & remanded 6/30/25.