Non-binary people born in Puerto Rico denied new birth certificates with X designations

The Boston-based US Court of Appeals for the First Circuit, which has jurisdiction over appeals from the federal district courts in Puerto Rico, ruled on Sept. 1 that Puerto Rico does not violate the constitutional Equal Protection requirement when it allows transgender binary people to change the gender designation on their birth certificates from M to F or F to M, but denies non-binary people the ability to obtain an X gender designation on their birth certificates. In 2023, five non-binary people who were born in Puerto Rico contacted the executive director of the Demographic Registry to request an amendment to the “Application for Gender Change in Vital Event Certification” form that they were provided when they sought to change the gender designations on their birth certificates. The form they receive offered only two choices, F or M. They asked that the form be modified to offer a third choice, X, to be used by people who do not identify as either F nor M. They were turned down and went to federal court. The reason Puerto Rico has a form that can be used to get gender markers changed in birth certificates is that the government lost a lawsuit in 2018 brought by transgender people who had been denied their requests to change the gender designations on their birth certificates, even though local law allowed them to change their names and have their new names on their birth certificates. The federal district court in Arroyo Gonzalez v. Rossello Nevares ordered the Registry to permit transgender people to change their sex designations as well as their names on their birth certificates, agreeing with their argument that the existing policy forced transgender people “to disclose their transgender status” in violation of their right to privacy under the Due Process Clause of the 14th Amendment. In this new case, District Judge Maria Antongiorgi-Jordan agreed with the plaintiffs’ argument that allowing transgender binary people to change their birth certificates to correctly reflect their gender, but denying that to non-binary people, was discriminatory, in violation of the Equal Protection Clause. The judge evaluated the claim using the “rational basis” test and decided that the rationales advanced by the government for the differential treatment were not sufficient to rule for the government. The government argued that the court would be violating separation of powers by ordering the government to change the form. The judge asserted that it is up to the courts to determine whether a challenged policy is constitutional, rejecting the separation of powers argument. The government then advanced its “interest in maintaining the integrity of public records,” but the judge pointed out that under the prior lawsuit, the government adopted the policy of issuing a new birth certificate with a change of sex designation but retaining the original birth certificate in its records. She concluded that it could not “conceive of any rational basis for the policy’s distinction between binary and non-binary individuals,” and concluded that the policy was “born of animosity” toward non-binary persons. The First Circuit three-judge panel disagreed with Judge Antongiorgi-Jordan. Pointing to the earlier decision in the Arroyo Gonzalez case, Judge Lara Montecalvo wrote for the panel that the basis for that ruling was protection for the privacy interests of transgender people by allowing sex designation changes that would bring their names and presentation in accord with the sex designation on their birth certificates. That rationale doesn’t apply to this case, she wrote, which involves Equal Protection, not Due Process, and, ironically, the court now invokes protection of privacy as a justification for treating binary and non-binary people differently in this regard, even though the government did not make this argument in the district court. Judge Montecalvo pointed out that whenever a person produced their birth certificate carrying an X designation, they would be immediately identified as non-binary. X=non-binary, after all, so there would be no privacy protection regarding their gender identity. Judge Montecalvo wrote that “the plaintiffs here have not demonstrated that the Birth Certificate Policy violates transgender non-binary Plaintiffs’ privacy rights,” and in fact they had waived any such argument before the district court. Thus, the Birth Certificate Policy “does not violate the informational privacy right that Arroyo Gonzalez contemplated, recognizing that a non-binary gender marker inherently discloses a person’s non-binary status.” The court insisted that Puerto Rico “has a legitimate interest in protecting the privacy rights of people born in Puerto Rico,” so “there is a rational relationship between the challenged classification and this legitimate interest. It is thus conceivably rational for Puerto Rico to not update transgender non-binary people’s birth certificates while updating transgender binary peoples’ birth certificates.” Is this a Nanny State decision? What if a non-binary person born in Puerto Rico experiences such psychological injury at having a birth certificate which incorrectly (in their view) identifies them as M or F that they want to have an X marker even though it would tell whoever sees their birth certificate that they are non-binary? Is the state’s interest in protecting privacy in the matter of gender identity sufficient to overcome the interest of a non-binary person in being correctly identified on their birth certificate? The district court judge saw inappropriate discrimination by the state in allowing binary transgender people to get a birth certificate that correctly indicates their gender but denying the same ability to non-binary people. Who has the better argument?  The plaintiffs could still seek Supreme Court review. All of the judges involved in this case were appointed by Democratic presidents. District Judge Antongiorgi-Jordan and Circuit Judge Montecalvo were both appointed by President Joe Biden. The other judges on the three-judge panel were Chief Circuit Judge David Barron (appointed by President Barack Obama) and Senior Circuit Judge Sandra Lynch (appointed by President Bill Clinton). The five non-binary plaintiffs were represented by Lambda Legal attorneys Omar Gonzalez-Pagan and Whit Washington, with local counsel Johanna m. Emmanuelli Heurtas.