Key Points

  • The Ninth Circuit held that A.R.S. § 36-337(A)(4) unambiguously requires Arizona's registrar to amend a birth certificate's sex marker on a court order, with no proof of a sex change operation required.
  • Because every transgender person can use the court-order route, the panel held the statute does not classify by transgender status, applied rational basis review, and upheld it under the Equal Protection Clause.
  • Assuming the asserted due process rights are fundamental, the panel held they are not burdened in all of the statute's applications, so the facial due process challenge fails.
  • The panel rejected the Arizona legislative leaders' argument that subsection (A)(3) is the exclusive path to change a sex marker, and declined to consider legislative history given the statute's plain text.
  • The court reversed summary judgment, vacated Judge Soto's injunction striking the word 'operation' from the statute, and remanded.

A federal appeals court on Tuesday threw out an injunction that had erased Arizona's requirement that transgender people provide proof of a "sex change operation" before changing the sex listed on their birth certificates. The court held that a separate provision of state law already lets anyone make that change with a court order.

Writing for the Ninth Circuit, Judge Roopali H. Desai said the class of transgender Arizonans who brought the suit "do not need an injunction from this court to grant them relief; Arizona law allows them to amend the sex marker on their birth certificates without undergoing a sex change operation." Judge Andrew D. Hurwitz was the other member of the panel. Judge Graber recused, and the two remaining judges decided the case as a quorum under 28 U.S.C. § 46(d).

The published decision reverses summary judgment for the plaintiffs and vacates a permanent injunction entered by U.S. District Judge James Alan Soto of the District of Arizona. That injunction struck the word "operation" from the statute, A.R.S. § 36-337(A)(3), and from an implementing regulation. The Ninth Circuit had stayed it pending appeal. Its rejection of both the equal protection and due process claims rested on its reading of a court-order provision that Arizona's legislative leaders had argued does not reach transgender people.

The named plaintiffs are three transgender children, Helen Roe, James Poe and Carl Voe, suing through their parents. They represent a certified class of "[a]ll transgender individuals born in Arizona, now and in the future, who seek to change the sex listed on their birth certificates but have not undergone a 'sex change operation' as treatment for their gender dysphoria." The defendant is Deborah Johnston, the state registrar of vital records and interim director of the Arizona Department of Health Services.

During discovery the plaintiffs dropped any as-applied claim and proceeded only with a facial challenge, meaning they had to show the law is unconstitutional in all its applications. Soto ruled for them on every claim. He applied heightened scrutiny to the equal protection claim and strict scrutiny to claimed due process rights to liberty and autonomy, to make medical decisions, and to informational privacy.

Arizona's amendment statute lists the circumstances in which the registrar "shall amend" a birth certificate. Subsection (A)(3) covers a written request plus a physician's statement verifying a sex change operation. Subsection (A)(4) requires an amendment whenever the registrar receives a "court order ordering an amendment to a birth certificate." The plaintiffs and the health department agreed that (A)(4) lets transgender people who have not had surgery amend by court order.

After judgment, Arizona Senate President Warren Petersen and House Speaker Steve Montenegro intervened and appealed. They argued that (A)(3) is the only way to change a sex marker and that courts lack authority under (A)(4) to order such changes. Desai wrote that (A)(4) "contains no conditions, additional requirements, or limitations" and that limiting it to the conditions in the preceding subsections "would make section (A)(4) superfluous."

The panel relied on a 2020 Arizona Court of Appeals decision, In re Marriage of McLaughlin & Swanson, in which two mothers appealed a trial court's order listing both of them as parents, rather than mothers, on a birth certificate. That court held that "courts have the authority and discretion to amend a birth certificate when petitioned to do so and when appropriate in a particular case." In a footnote, Desai rejected the intervenors' reliance on a House bill summary, writing that their "strained interpretation would require us to reject the clear, unambiguous language of the statute, which we cannot and will not do."

The opinion acknowledged that two of the named plaintiffs were apparently denied court orders by Arizona trial judges. Their mothers testified that the judges believed the health department would not honor an order without proof of surgery. Desai wrote that requiring such proof under (A)(4) is improper and that "for a court to decline to issue an order because it predicts that ADHS 'wouldn't honor it,' is doubly improper." She noted that the agency, which refused to honor such an order in a 2016 case, says it has since abandoned that position. In any event, the panel said, a facial challenge turns on the statute's text, not on how it has been applied.

On equal protection, the panel held that the statute does not classify people by transgender status, either expressly or through "proxy discrimination," the plaintiffs' theory that a seemingly neutral criterion like surgery stands in for transgender status. "That the statute allows all members of the disfavored class—transgender people—to obtain the desired relief establishes that it does not discriminate on the basis of membership in that group," Desai wrote.

Applying rational basis review, the court found the law rationally related to the state's interest in adequate evidentiary support for amendments. Because transition can occur socially or through hormones as well as surgery, Desai wrote, "a judicial factfinder is better equipped than the administrative agency to confirm that the registrar should" change the marker. The panel said its decision "hinges on our interpretation of the statute allowing people to amend their sex marker using a court order under section (A)(4)."

On due process, the panel assumed the asserted rights were fundamental but held that the court-order route meant they were not burdened in every application. It said that "court orders are regularly required to obtain documentation and state benefits," citing delayed birth certificates and adoptions. On privacy, it pointed to Arizona's rule allowing court filings to be sealed. The judges said the plaintiffs "may be right that they have 'no guarantee that a request to seal their records would be granted' in any individual case, but this is a facial challenge."

Mary O'Grady of Osborn Maledon PA was among the lawyers for the plaintiffs. Nathan T. Arrowsmith of the Arizona Attorney General's Office argued for the health department, with Lauren Watford and Timothy E.D. Horley. Michael C. Martinich-Sauter of James Otis Law Group LLC argued for the legislative leaders, with Justin D. Smith. Alice W. Yao, Mary Rohmiller and Dylan N. De Kervor of Potomac Law Group PLLC filed a brief for a group of constitutional law scholars as amici curiae.

The panel reversed the grant of summary judgment, vacated the injunction and sent the consolidated appeals, Nos. 25-6970 and 25-6980, back to the district court for further proceedings.