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Fowler v. Stitt.

No. 23-5080. 6/18/2024. N.D.Okla. Judge McHugh. Fourteenth Amendment—Equal Protection—Substantive Due Process—Right to Privacy—State Action—Amended Birth Certificates—Discrimination on the Basis of Transgender Status and Sex.

June 18, 2024

Around 2007, the Oklahoma State Department of Health (OSDH) allowed transgender people to obtain Oklahoma birth certificates with amended sex designations. In 2021, Oklahoma Governor Stitt learned about this practice and issued an executive order directing OSDH to stop amending sex designations on birth certificates. Plaintiffs are transgender people without amended Oklahoma birth certificates who all obtained court orders directing that their sex designations on official documents be amended. They then applied for amended birth certificates, and OSDH denied their applications, citing the governor’s executive order. Plaintiffs sued Governor Stitt; OSDH’s Commissioner of Health; and the State Registrar of Vital Records (collectively, defendants), in their official capacities, challenging defendants’ practice of denying sex-designation amendments (the policy). As relevant here, plaintiffs sued under 42 USC § 1983, asserting Fourteenth Amendment equal protection and due process claims alleging that (1) the policy violates equal protection by unlawfully discriminating based on transgender status and sex; and (2) without amended birth certificates, they must involuntarily disclose their transgender status when providing their birth certificates to others, which violates their substantive due process right to privacy. Defendants moved to dismiss, and the district court granted the motion.

On appeal, plaintiffs argued that the district court erred in dismissing their equal protection claim because the policy purposefully discriminates on the basis of transgender status and sex and thus violates equal protection. Here, plaintiffs alleged facts showing that the policy affects transgender people but not cisgender people, the policy’s intent is to target transgender people, and the policy intentionally discriminates against plaintiffs based in part on sex. Further, defendants failed to proffer a legitimate justification for the policy, suggesting it was motivated by animus toward transgender people. These alleged facts support a reasonable inference of purposeful discrimination. Additionally, the Tenth Circuit determined that the policy cannot withstand even rational basis review, so plaintiffs have stated a viable equal protection claim, and the district court erred in dismissing this claim.

Plaintiffs also argued that the district court erroneously dismissed their substantive due process claim. They maintained that they are forced to involuntarily disclose their transgender status when showing their original birth certificates to third parties and these involuntary disclosures violate their Fourteenth Amendment right to privacy. To adequately plead that defendants are liable for their involuntary disclosures, plaintiffs must plausibly allege that those disclosures amount to state action. Here, plaintiffs did not allege that defendants threatened, ordered, or intimidated them into disclosing their birth certificates, so they failed to allege that their involuntary disclosures amount to state action. Therefore, the district court properly dismissed this claim.

The dismissal of plaintiffs’ equal protection claim was reversed, the dismissal of plaintiffs’ substantive due process claim was affirmed, and the case was remanded for further proceedings.

The full opinion is available at

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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