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Lawsuit challenges surgery requirement for N.C. birth certificate change

The law discriminates against transgender people who may not want or who are unable to afford gender-affirming surgery, advocates say.

A lawsuit filed Tuesday challenges North Carolina’s requirement that transgender individuals who want to update their birth certificate undergo “sex reassignment surgery.”

Lambda Legal, a leading LGBTQ civil rights group, filed suit in the U.S. District Court for the Middle District of North Carolina on behalf of three transgender North Carolinians: Lillith Campos, a 45-year-old woman who lives in Jacksonville, and two minors — “C.B.” a 16-year-old boy from Chapel Hill, and “M.D,” a 14-year-old girl from Carrboro. (The names of the two minors have been altered in court documents to protect their privacy.) 

Lillith Campos.Lambda Legal

“As someone who can’t afford surgery, it’s demoralizing and dehumanizing that my birth certificate doesn’t reflect who I am,” Campos said at an online news conference Tuesday morning. “Having incorrect documentation makes me feel like a second-class citizen.” 

She added that the current policy forces trans people to out themselves, “even if they don’t feel safe doing so.” 

According to the filing, a birth certificate that aligns with an individual’s gender identity “is a critical and ubiquitous identification document,” vital to accessing employment, education, housing, health care, banking, credit, travel and many government services. 

For children, lawyers for the plaintiffs argue, birth certificates are often the only form of government identification they have, and are required for enrollment in school, recreational sports and summer camp. 

“My daughter is a 14-year-old girl and the state’s requirement for surgery is unrealistic and creates a barrier for my child to have a normal childhood,” M.D.’s mother, Katheryn Jenifer, said at the news conference.

“Not having an accurate birth certificate has exposed my daughter to discriminatory treatment and exclusion in school, sports and other places,” she added. “No child should go through life knowing the state doesn’t recognize her as who she is.”

Jenifer said M.D. saw the case as a chance “to be the voice for kids like her that maybe don’t have support like she does.”

“She knows this could bring unwanted attention,” she Jenifer added, “but she feels it’s important enough that she wants to be a part of it.”

While the state imposes a surgical requirement, designated as “sex reassignment surgery,” the suit maintains it doesn’t provide a legal definition for the phrase. 

“The decision is left to the subjective whims of each clerk,” it reads, resulting in “arbitrary and discriminatory enforcement of the statute — rendering the statute unconstitutionally vague.”

Lambda Legal Senior Attorney Omar Gonzalez-Pagan called the surgical requirement  “inconsistent with standard medical practice” and said it presented “a significant barrier — sometimes insurmountable — to many transgender people, particularly those who may not be able to afford gender confirmation surgery, or who may not want or need it.” 

The litigants argue the surgical requirement violates their constitutional guarantee of equal protection under the 14th Amendment, as well as their First Amendment guarantee to freedom of speech.

Rather than financial compensation, Gonzalez-Pagan said, they’re seeking an acknowledgement that the surgical policy is unconstitutional and a requirement that the state allow trans people to update their birth certificate without surgery.

In addition to attorneys with Lambda Legal, the plaintiffs are being represented by the North Carolina firms Baker Botts LLP and Brooks Pierce McLendon Humphrey & Leonard LLP.

Mandy Cohen, the secretary of the North Carolina Department of Health and Human Services, has been named as a defendant, along with Assistant Secretary of Public Health Mark Benton and ClarLynda Williams-DeVane, state registrar and director of the North Carolina State Center for Health Statistics.

The North Carolina Department of Health and Human Services declined to comment on the lawsuit.

According to Lambda Legal, 34 states allow individuals to update the sex designation on their birth certificate without surgical intervention. 

In fact, surgery is not required to update the gender marker on a North Carolina driver’s license, just a form from a health professional affirming their client’s gender identity. 

Fourteen states still have a surgical requirement to change gender markers on birth certificates.  

West Virginia requires a court order to amend the gender designation on a birth certificate, according to the National Center for Transgender Equality. The state’s Vital Registration office will not issue a new birth certificate, instead striking through the existing name and gender and typing the new information above. 

Tennessee law specifically prohibits amending sex on a birth certificate “as a result of sex change surgery,” a policy Lambda Legal is also currently challenging. Like transgender North Carolinians, though, trans residents in Tennessee can change the listed gender on their driver’s licenses and state identification cards without surgery.

In an email to NBC News, Gonzalez-Pagan said the decision of when and where to bring a challenge “depends on multiple factors, including our assessment of the law and whether we have encountered people affected by these policies that are willing to step up and take on such a challenge.”

The goal, he added, is to eradicate each of these barriers one by one “and to have one victory build upon the other.” 

North Carolina has been a nexus point for LGBTQ equality in recent years: In 2016, after Charlotte passed an ordinance expanding its existing nondiscrimination protections to include gender identity and sexual orientation — including allowing transgender people to use the bathroom that aligns with their gender identity — the state’s General Assembly held a special session to pass House Bill 2, nicknamed the “bathroom bill.” 

That measure prevented any municipality in the state from adding sexual orientation or gender identity to nondiscrimination laws, effectively blocking Charlotte’s efforts and sparking national boycotts that were projected to cost the state billions in lost revenue.

HB 2 was eventually repealed in 2017 as part of a compromise that placed a three-year statewide moratorium on nondiscrimination ordinances. Since then, Charlotte and several other cities have updated their nondiscrimination policies to include LGBTQ people.

And just last month, the state’s lieutenant governor, Mark Robinson made national headlines and faced calls to resign after a video surfaced showing him describing the LGBTQ community as “filth.”

“There’s no reason anybody anywhere in America should be telling any child about transgenderism, homosexuality — any of that filth,” Robinson, the state’s highest Republican executive officeholder, said in a clip from a June speech at a Baptist church.

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