Fowler v. Stitt

104 F.4th 770

Rowan FOWLER; Allister Hall; Carter Ray, Plaintiffs - Appellants, v. Kevin STITT, in his official capacity as Governor of the State of Oklahoma;

Keith Reed, in his official capacity as Commissioner of Health for

the Oklahoma State Department of Health; and Kelly Baker,

in her official capacity as State Registrar of Vital Records, Defendants - Appellees.

American Civil Liberties Union; American Civil Liberties Union of Oklahoma;

GLBTQ Legal Advocates & Defenders; State of Kansas; State of Arkansas;

State of Iowa; State of Indiana; State of Georgia; State of Louisiana;

State of Mississippi; State of Missouri; State of Montana; State of Nebraska;

State of North Dakota; State of South Carolina; State of Tennessee;

State of Texas; State of Utah; State of West Virginia, Amici Curiae.

No. 23-5080

United States Court of Appeals, Tenth Circuit

FILED June 18, 2024

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:22-CV-00115-JWB-MTS)

Peter C. Renn, Lambda Legal Defense and Education Fund, Inc., Los Angeles, California (Sasha Buchert, Lambda Legal Defense and Education Fund, Inc., Washington, D.C.; Shelly L. Skeen, Lambda Legal Defense and Education Fund, Inc., Dallas, Texas; and Karen Keith Wilkins, Tulsa, Oklahoma, with him on the briefs), for Plaintiffs - Appellants.

Audrey A. Weaver, Assistant Solicitor General, Office of the Attorney General for the State of Oklahoma (Garry M. Gaskins, II, Solicitor General, and Zach West, Director of Special Litigation, with her on the brief), Oklahoma City, Oklahoma, for Defendants - Appellees.

Harper S. Seldin, American Civil Liberties Union Foundation, New York, New York; and Adam Hines and Megan Lambert, American Civil Liberties Union of Oklahoma Foundation, Oklahoma City, Oklahoma, filed an amicus curiae brief for American Civil Liberties Union and American Civil Liberties Union of Oklahoma.

Kimberly A. Havlin and Ariell D. Branson, White & Case LLP, New York, New York; and Patience Crozier, GLBTQ Legal Advocates & Defenders, Boston, Massachusetts, filed an amicus curiae brief for GLBTQ Legal Advocates & Defenders.

Kris Kobach, Attorney General, Anthony Powell, Solicitor General, and Erin B. Gaide, Assistant Attorney General, Office of the Attorney General for the State of Kansas, Topeka, Kansas, filed an amicus curiae brief for State of Kansas, State of Arkansas, State of Iowa, State of Indiana, State of Georgia, State of Louisiana, State of Mississippi, State of Missouri, State of Montana, State of Nebraska, State of North Dakota, State of South Carolina, State of Tennessee, State of Texas, State of Utah, and State of West Virginia.

Before HARTZ, McHUGH, and FEDERICO, Circuit Judges.

McHUGH, Circuit Judge.

Starting in at least 2007, the Oklahoma State Department of Health ("OSDH") permitted transgender people to obtain Oklahoma birth certificates with amended sex designations.¹ So, for example, a transgender woman assigned male at birth could obtain an amended Oklahoma birth certificate indicating she is female. This practice ended in 2021 after an individual obtained an amended Oklahoma birth certificate with a gender-neutral sex designation. Oklahoma Governor Kevin Stitt learned about this amended birth certificate and publicly stated, "I believe that people are created by God to be male or female. Period." App. at 22. Shortly thereafter, Governor Stitt issued an Executive Order directing OSDH to stop amending sex designations on birth certificates.

Plaintiffs Rowan Fowler, Allister Hall, and Carter Ray are transgender people without amended Oklahoma birth certificates. This means the sex listed on their birth certificates does not reflect their gender identities. Plaintiffs all obtained court orders directing that their sex designations on official documents be amended. They then applied for amended birth certificates. OSDH denied all three applications, citing the Governor's Executive Order.

Plaintiffs sued Governor Stitt; OSDH's Commissioner of Health, Keith Reed; and the State Registrar of Vital Records, Kelly Baker (collectively, "Defendants"), in their official capacities. Plaintiffs' suit centers on Defendants' practice of denying sex-designation amendments ("the Birth Certificate Policy" or "the Policy"). Pursuant to 42 U.S.C. § 1983, Plaintiffs asserted claims under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Specifically, Plaintiffs allege the Policy violates equal protection because it unlawfully discriminates based on transgender status and sex. Additionally, Plaintiffs allege that without amended birth certificates, they must involuntarily disclose their transgender status when providing their birth certificates to others. They contend these involuntary disclosures violate their substantive due process right to privacy.

Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing Plaintiffs failed to state a claim. The district court granted the Motion, and Plaintiffs appealed. For the reasons set forth below, we reverse the district court's dismissal of the equal protection claim. But we affirm the district court's dismissal of Plaintiffs' substantive due process claim.

I. BACKGROUND

A. Factual History

Because we are reviewing the dismissal of a complaint for failure to state a claim, we draw the facts from Plaintiffs' well pleaded factual allegations and construe them in the light most favorable to Plaintiffs. McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 997 (10th Cir. 2002). We begin with a general discussion of sex, gender identity, and gender dysphoria drawn from Plaintiffs' allegations. We then outline the allegations concerning the Policy and Plaintiffs' relevant experiences.

1. Sex, Gender Identity, and Gender Dysphoria²

According to the Complaint, individuals are typically assigned a sex at birth based solely on the appearance of their external genitalia. Yet, all individuals have "multiple sex-related characteristics, including hormones, external and internal morphological features, external and internal reproductive organs, chromosomes, and gender identity." App. at 14. Gender identity is "a person's core internal sense of their own gender." Id. Each person has a gender identity, "and that gender identity is the critical determinant of a person's sex." Id. Furthermore, "[t]here is a medical consensus that gender identity is innate, has biological underpinnings (including sexual differentiation in the brain), and is fixed at an early age." Id. at 15.

Most people are cisgender, meaning their sex assigned at birth aligns with their gender identity. But some people are transgender, meaning their sex assigned at birth conflicts with their gender identity. An incongruence between sex assigned at birth and gender identity is associated with gender dysphoria. "Gender dysphoria refers to clinically significant distress that can result when a person's gender identity differs from the person's sex assigned at birth." Id. "If left untreated, gender dysphoria may result in serious consequences including depression, self-harm, and even suicide." Id. at 16. Moreover, attempts to alter gender identity "are not only unsuccessful but also dangerous, risking psychological and physical harm, including suicide." Id. at 15.

Internationally recognized standards of care govern the treatment of gender dysphoria. Treatment generally involves transgender people living in a manner consistent with their gender identity—a process called transition. Each person's transition varies but may include social and medical transition. "Social transition entails a transgender person living in a manner consistent with the person's gender identity." Id. at 16. For a transgender man, this may mean wearing traditionally male clothing, using male pronouns, and adopting grooming habits associated with men. Medical transition "includes treatments that bring the sex-specific characteristics of a transgender person's body into alignment with their gender identity, such as hormone replacement therapy or surgical care." Id.

Plaintiffs allege that an essential part of transitioning is amending the name and sex designation on identity documents. Relevant here, transgender people will often request an amended birth certificate because birth certificates are "critical and ubiquitous identity document[s] used in many settings to verify a person's identity." Id. at 11. Birth certificates are also often used to obtain other identity documents, like driver's licenses and passports. Without amended birth certificates, transgender people may have difficulty proving their identity because of a visible discord between their gender identity and their sex designation. Additionally, transgender people without amended birth certificates have less control over when they reveal their transgender status. This is because they may need to show their birth certificates to others who may perceive a difference between their gender identity and sex designation.

2. The Birth Certificate Policy³

OSDH is responsible for Oklahoma's vital records, including issuing and amending Oklahoma birth certificates. Starting in at least 2007, OSDH allowed transgender people to amend the sex designations on their birth certificates. From 2018 to late 2021, at least one hundred transgender individuals received Oklahoma birth certificates with amended sex designations.

OSDH stopped amending sex designations when it began implementing the Birth Certificate Policy. Plaintiffs define the Birth Certificate Policy as the policy "of refusing to provide transgender people with birth certificates that match their gender identity."⁴ Id. at 20.

Plaintiffs allege that the Birth Certificate Policy originates in part from a 2021 settlement between OSDH and an individual whose gender identity and assigned sex conflicted. Per the settlement, the individual received "an amended Oklahoma birth certificate with a gender-neutral designation, consistent with their...