Altered Birth Certificates Are 'Free Speech' for Trans People, Lawsuit Says

Lambda Legal has sued the state of Kansas for refusing to allow transgender citizens to alter the sex marker on their birth certificate, arguing that inaccurate birth certificates compel speech.
October 15, 2018, 9:02pm
Image of document with baby footprints.
Photo by Jamie Grill Atlas via Stocksy

A lawsuit was filed Monday against three Kansas state agencies involved in the alteration of legal identity documents for Kansans. Foster v. Andersen, brought forth by Lambda Legal on behalf of four transgender Kansans and one statewide trans rights organization, alleges, "The State of Kansas categorically bars transgender people from obtaining birth certificates that reflect their true sex, consistent with their gender identity."

Kansas is one of only three states that does not allow transgender people to change the sex marker listed on their birth certificate—the other two states are Tennessee, where trans people are legally forbidden from changing their birth certificate, and Ohio, which is under current litigation with the ACLU. Earlier this year, Lambda Legal successfully sued the state of Idaho for this same discriminatory practice. This means that 47 states, as well as Puerto Rico and the District of Columbia, allow transgender people to amend their birth certificates to accurately reflect their birth sex. Kansas technically allows for such alterations, but refuses to make them for transgender people.

The Office of Vital Statistics, under the Kansas Department of Health and Environment states, “If your sex was listed incorrectly at the time of your birth, you need to provide our office with a notarized statement requesting that your sex or gender be corrected.” However, as Lambda Legal points out in their suit, despite the fact that there is a policy that would allow for trans people to alter their birth certificates, the practice of The Office of Vital Statistics is to bar such changes for transgender Kansans.

A birth certificate that lists a trans person's sex as the sex they were assigned at birth exposes private, personal and medical information, which the suit argues is a serious invasion of privacy and a potential precursor to discrimination and violence: "One third (33 percent) of transgender people in neighboring Missouri and thirty-six percent (36 percent) of transgender people in Oklahoma who have shown an identification document with a name or gender that did not match their gender presentation were verbally harassed, denied benefits or service, asked to leave, or assaulted," the lawsuit claims.

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The root of this issue, which is argued in the suit, is connected to the perception of transgender people as "second-class citizens" whose identities are not entirely their own, as represented by the fact that the state refuses to recognize the identities of transgender people in a "foundational identity document," like a birth certificate. In a press release dispersed Monday, Lambda Legal senior attorney Omar Gonzalez-Pagan stated, “By denying people the ability to correct their gender marker on their birth certificates, Kansas is forcing transgender people in effect to lie about who they are and to navigate life with inaccurate identity documents.”

Among other legal arguments, Foster v. Andersen suggests that Kansas is violating its transgender citizens' freedom of speech—as the state's refusal to alter birth certificates forces trans people to involuntarily disclose their sex assigned at birth, compelling them to speech, and compelling them to "endorse" the state's perspective on their true gender, and the nature of sex itself.