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Transgender North Carolinians sue state over birth certificate policy

A group of transgender people and their families filed a federal lawsuit Tuesday over how North Carolina handles people receiving birth certificates that reflect their gender identity.

State law currently allows North Carolinians born in the state to legally change the gender designation on their birth certificate only if they undergo gender affirming surgery. But for a variety of reasons many transgender people elect not to have any surgical procedures related to their transition. The lawsuit, filed in the U.S. District Court for the Middle District of North Carolina, says the state’s requirement violates the equal protection clause of the U.S. Constitution’s Fourteenth Amendment.

Lillith Campos, a transgender woman from Jacksonville, is one of the suit’s plaintiffs along with two transgender minors represented by their parents.

“It is wrong for North Carolina to require that I obtain surgery in order for them to recognize me as the woman I am,” Campos said. “As a trans woman, having incorrect documentation makes me feel like a second-class citizen because I am denied the same rights as the rest of the population. It just makes me feel like I am ‘less than’ before the eyes of the state.”

North Carolina currently allows transgender people to change the gender designation on their driver’s license and state identification cards without surgery. But requiring it for a change on birth certificate puts that change out of reach for many transgender people, including Campos. The health insurance provided by her employer doesn’t cover it and she can’t afford it on her own.

Lillith Campos, a transgender woman from Jacksonville, is one of the lawsuit’s plaintiffs.

“This discriminatory requirement presents a significant barrier, sometimes insurmountable, to many transgender people,” said Carl Charles, a staff attorney with Lambda Legal, in a virtual press conference Tuesday. “Particularly those who may not be able to afford such a gender-affirming surgery, who may not want or need such interventions or, like our minor plaintiffs, for whom it is simply not medically indicated.”

Gender affirmation surgeries are an increasingly common treatment for gender dysphoria. The American Medical Association and American Psychiatric Association recognize dysphoria not as a mental illness but “a conflict between a person’s physical or assigned gender and the gender with which he/she/they identify.”

More than 40 years of research into and treatment of transgender people experiencing dysphoria has led psychiatric and medical professionals to conclude the most effective course of treatment is gender transition — aligning one’s life socially and sometimes physically to better match their gender identity. Not all transgender people choose to medically transition, but for those for whom it is judged necessary, medical experts agree it can be life-saving. Because of cost, personal circumstances or for medical reasons, many transgender people never have any surgery as part of their transition. For minors, such surgeries are often not an option until later in life.

Katheryn Jenifer of Carrboro is another of the suit’s plaintiffs. At Tuesday’s press conference she said her daughter, a transgender minor, is already encountering problems because of the state’s policy on birth certificates.

“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,” Jenifer said. “Not having an accurate birth certificate has exposed my daughter to discriminatory treatment and exclusion in school, sports, and other places. No child should go through knowing the state doesn’t recognize as who she is and that’s why I am supporting my daughter in this lawsuit.”

Omar Gonzalez-Pagan, senior attorney and health care strategist at Lambda Legal, said the state allowing the change on some identity documents and not others causes needless confusion and conflict, including transgender people having their identifying documents called into question.

“Birth certificates are essential and foundational identity documents critical for people navigating life,” Gonzalez-Pagan said.  “North Carolina’s policy explicitly requiring transgender people have surgery to affirm their identity is not only discriminatory but arbitrary and inconsistent with standard medical practice.”

“North Carolina is out of step with the rest of America and trails behind the majority of states that permit transgender persons to correct the sex designation on their birth certificates without a surgical requirement,” Gonzalez-Pagan said.

Lambda Legal has successfully challenged similar state laws restricting gender changes to birth certificates in Idaho (FV v. Jeppesen), Kansas (Foster v. Andersen), New York (MHW v. Cuomo), Ohio and Puerto Rico (Arroyo v. Rossello).  A challenge to Tennessee’s policy is currently pending in federal court (Gore v. Lee).

Joining Lambda Legal in the lawsuit are attorneys from Baker Botts LLP and Brooks Pierce McLendon Hmumphrey & Leonard LLP.

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