WY high court allows birth certificate gender changes to continue. A victory, but why list it at all?

This case had been pending for a long time, leaving great uncertainty for Wyomingites. Yesterday’s ruling preserves the status quo, in which 48 states permit gender changes on birth certificates in at least some circumstances, while an Idaho law that would ban all such changes faces an uncertain fate amid ongoing litigation.

The ruling in MH v. First Judicial District Court is an important victory for trans Wyomingites. Nevertheless, Wyoming’s rules remain restrictive, and it’s not clear why short-form birth certificates should list gender at all. Like several other states, Wyoming’s Vital Records Act does not list what data fields should be included in either confidential birth records or short-form birth certificates, and instead states that they “shall include as a minimum the items recommended by the federal agency responsible for national vital statistics subject to approval of and modification by the department of health.” The current Model Vital Statistics Act, developed by the CDC in 2011, recommends a sex field. But that could change, and in any event Wyoming law allows its Department of Health to modify that list.

But back to the case. Wyoming’s Vital Records Act allows corrections on birth certificates generally, and authorizes the Department of Health to make rules and procedures for corrections. WDOH has done just that, stating that any item on a birth certificate may be changed based on a court order, and that to change the sex marker there should be a “an affidavit and a statement from a physician.”

Petitions for birth certificate changes, like name changes, are not adversarial proceedings. Yet in this case, where a trans woman brought a petition in the district court, that court - on its own - decided that Wyoming law didn’t grant it jurisdiction to hear such petitions, regardless of the WDOH rules. That was over a year ago, and the case has sat with the Wyoming Supreme Court for an unusually long time. But this week the five-member state high court unanimously ruled that Wyoming courts have jurisdiction to hear gender change petitions:

The Wyoming Constitution and our precedent require a presumption in favor of district court subject matter jurisdiction. The Vital Records Act does not limit district court jurisdiction over amendments to vital records, it establishes a class of cases which includes M.H.’s petition, and the district court therefore has subject matter jurisdiction.

The high court ruled only on this narrow issue of jurisdiction, but it did imply that the WDOH regulations allowing gender changes are also proper:

Contrary to the district court’s assertion, the WDOH regulations providing for amendment of “any item” (including sex) on a birth certificate do not constitute an attempt by the WDOH “to create subject matter jurisdiction in the district courts.” Rather, they are a proper exercise of the WDOH’s legislatively delegated authority under section 35-1-424(a), which charges the WDOH with maintaining “the integrity and accuracy of vital records.” If a person’s sex—or any other information on a vital record—is incorrect, inability to amend that information would undermine the accuracy of her vital records. Amendment of inaccurate information falls squarely within the legislative intent to “protect the integrity and accuracy of vital records.”

One member of the court, Justice Katz, wrote at length to take issue with what he characterized as unnecessary and questionable dicta. Justice Katz speculated that the WDOH regulations may be improper because allowing changes based on circumstances subsequent to a person’s birth “undermines the integrity and accuracy of her birth certificate as it would no longer reflect the facts of [a person’s] birth.” Katz suggests that a person’s gender identity and gender transition might not change "the facts of the birth” regarding their sex, and therefore any such change is unauthorized, and the WDOH rules would be void. Katz acknowledged that this was not before the state high court, but the opinion reads as an invitation to the district court to deny the petition on new grounds and set up another appeal.

For now, this is an important victory. But either the WDOH or state lawmakers could avoid further fights about gender changes by simply removing the gender field from short-form birth certificates. The state would then still collect vital statistics at birth, but the certificate that individuals must use for everyday purposes would no longer disclose this sensitive and contentious piece of information.