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AG Nessel Opinion: Sex-Reassignment Surgery Requirement for Birth Certificate Change is Unconstitutional

LANSING - Michigan Attorney General Dana Nessel today declared unconstitutional a state law requiring "sex-reassignment surgery" to change the sex designation on a birth certificate. Opinion #7313 determines the statute unconstitutional because it violates an individual's equal protection rights and may also violate an individual's due process rights under the United States and Michigan constitutions.

Earlier this year, Michigan Department of Health and Human Services Director Elizabeth Hertel made a formal request for an Attorney General Opinion as to "whether MCL 333.2831(c) violates the constitutional rights of Michigan-born persons who seek to amend their birth certificate to alter their sex designation assigned at birth to reflect their present gender identity."

Michigan Compiled Law 333.2831(c) establishes the only method by which Michigan-born individuals can change the sex designation on their birth certificates by requiring: 

  • a written "request that a new certificate be established to show a sex designation other than that designated at birth"; and  
  • "an affidavit of a physician certifying that sex-reassignment surgery has been performed."   

Presently, if an applicant has not received "sex-reassignment surgery," or cannot provide required proof of that surgery, the statute requires that MDHHS deny their application to amend their birth certificate.

The opinion points out "that, outside of the sex designation, birth certificates are not always biologically driven nor are they static.  For example, when a child is born to a wedded couple, each spouse is listed as a parent on the birth certificate, regardless of whether they conceived the child.  And if a child is adopted later in life, the birth certificate may be changed to reflect the new adoptive parents.  The fact that the state readily accounts for and acknowledges such biological falsity - sometimes even from birth - cuts against the importance of any state interest in maintaining the accuracy of vital records in regard to the biology of the child."

"The law violates Michiganders' most basic and fundamental protections under the Constitution," said Nessel.  "As written, it is a tool of intolerance that treats one group of people different from the rest of us by requiring thousands of residents to undergo expensive and invasive medical procedures in order to amend their birth certificates to reflect their true identity. That requirement creates a discriminatory double standard when the listed parent information on a birth certificate is not always biologically accurate. If that aspect of the certificate can reflect who will love and care for the child, so should the listed sex be a true reflection of how the person identifies."

Several jurisdictions - including Connecticut, the District of Columbia, Hawaii, Illinois, Iowa, Maryland, and Massachusetts - allow for a birth-certificate-sex-designation change upon a showing of some lesser form of clinical intervention than "sex-reassignment surgery," accepting surgical, hormonal, or other treatment clinically appropriate for a gender transition.  The U.S. Department of State requires only that the individual has received "appropriate clinical treatment for transition" to change the sex marker on their individual passport and gives physicians the discretion to determine what clinical treatment is "appropriate" for each individual.  Other states, such as California, Colorado, New Jersey, and New Mexico, do not mandate any form of medical or other clinical intervention, requiring only an affidavit from the individual attesting that they identify as a different gender.

"Removing this undue burden on individuals seeking to change their sex designation assigned at birth to reflect their true gender identity on their birth certificates is the right thing to do," said Hertel. "Consistent with the opinion, applicants will no longer need to undergo sex reassignment surgery or to provide proof that surgery has been performed. MDHHS is already working on a process to assist individuals in making these changes."

The full opinion from AG Nessel can be read on the Department's website.