Plaintiffs Rowan Fowler, Allister Hall, and Carter Ray sued defendants Kevin Stitt (Governor of Oklahoma), Keith Reed (Commissioner of Health for Oklahoma), and Kelly Baker (State Registrar of Vital Records) in the United States District Court for the Northern District of Oklahoma, raising claims of discrimination under the Equal Protection Clause and violation of privacy rights under the Due Process Clause of the Fourteenth Amendment. The district court dismissed the plaintiffs’ claims, and the plaintiffs appealed to the United States Court of Appeals for the Tenth Circuit.
Factual Overview
The plaintiffs are transgender individuals seeking to amend the sex designation on their Oklahoma birth certificates to match their gender identities. Prior to 2021, the Oklahoma State Department of Health (OSDH) allowed transgender people to obtain amended birth certificates with changed sex designations. This practice ended in 2021 after Governor Stitt issued an Executive Order directing OSDH to stop amending sex designations on birth certificates.
The plaintiffs all obtained court orders directing that their sex designations on official documents be amended. They then applied for amended birth certificates, but OSDH denied their applications, citing the Governor’s Executive Order. The plaintiffs sued, challenging what they termed the “Birth Certificate Policy” that prevented them from obtaining amended birth certificates reflecting their gender identities.
In their lawsuit, the plaintiffs alleged that the Policy violates equal protection by discriminating based on transgender status and sex. They also claimed that being forced to use birth certificates that do not match their gender identities violates their substantive due process right to privacy by compelling involuntary disclosure of their transgender status.
Legal Analysis
Equal Protection Claim: The court first analyzed whether the Policy purposefully discriminates against transgender individuals. It concluded that the plaintiffs plausibly alleged purposeful discrimination based on the Policy’s disparate impact on transgender people, the sequence of events leading to its adoption, and the defendants’ inability to justify it as advancing a legitimate state interest.
The court then considered whether the Policy also discriminates on the basis of sex. Applying the reasoning from the Supreme Court’s decision in Bostock v. Clayton County, the court held that discrimination based on transgender status necessarily entails discrimination based on sex.
The court then evaluated the Policy under rational basis review, concluding it was not rationally related to the state’s asserted interests in protecting the accuracy of vital records or protecting women’s interests. The court found the Policy failed even this lowest level of scrutiny.
Substantive Due Process Claim: The court affirmed dismissal of the plaintiffs’ substantive due process claim. It held the plaintiffs failed to plausibly allege state action regarding the involuntary disclosures of their transgender status, as the disclosures were made by the plaintiffs themselves to third parties, not by state officials.
Dissenting Opinion: Judge Hartz dissented in part, disagreeing with the majority’s conclusion that the Policy discriminates on the basis of sex under the Equal Protection Clause. He argued that Bostock’s reasoning should not be extended from the Title VII employment context to Equal Protection analysis of a facially neutral law. Judge Hartz contended the plaintiffs failed to show the requisite intent to disadvantage either males or females as a class.
The court reversed the dismissal of the plaintiffs’ equal protection claim, affirmed the dismissal of their substantive due process claim, and remanded the case for further proceedings consistent with its opinion.
Schrag on Law 