The New Jersey Attorney General’s Office last week urged a federal judge to dismiss a lawsuit that seeks to allow trans people born in New Jersey to change the gender on their birth certificate without undergoing gender-confirmation surgery.
The plaintiff, “Jane Doe,” is a New Jersey trans woman with gender dysphoria who wants to change the gender on her birth certificate without undergoing surgery.
In November, Doe filed suit in federal court in Camden, contending that trans people are entitled to accurate birth certificates, regardless of their surgical status.
The defendants are state registrar Vincent T. Arrisi and state health commissioner Cathleen D. Bennett, along with the agencies they head: the New Jersey Office of Vital Statistics and the New Jersey Department of Health, respectively.
New Jersey currently has a statute requiring gender-confirmation surgery prior to the issuance of a revised birth certificate with a different gender.
According to Doe’s lawsuit, the statute violates state and federal laws, including the equal-protection and due-process clauses of the 14th Amendment, the Americans With Disabilities Act and New Jersey’s Law Against Discrimination.
“The requirement harms [Doe] by forcing her to undergo surgery that she does not want and forces [Doe] to sterilize herself before she is allowed a correct birth certificate,” the suit states.
However, a motion to dismiss filed on behalf of the defendants last week emphasizes that the state isn’t forcing Doe to undergo surgery.
“[The law] does not mandate that anyone obtain [gender-confirmation] surgery, nor does it place any obstacle in the way of an individual who seeks to undergo that surgery,” according to the Dec. 28 motion.
The motion also denies that the statute at issue discriminates against trans people, or violates any state or federal laws. Moreover, the motion notes that about 20 states in addition to New Jersey have a similar statutes.
But, according to Doe’s suit, several states, including Pennsylvania, New York, California, Iowa, Oregon, Vermont and Washington, permit gender changes to birth certificates without requiring gender-confirmation surgery. Doe’s suit also notes that New Jersey doesn’t require gender-confirmation surgery to change a gender marker on a driver’s license. Additionally, the plaintiff holds, the federal government doesn’t require surgery for gender changes on a U.S. passport.
The defendants’ motion to dismiss contends that granting Doe’s request would result in an inaccurate birth certificate.
“If [Doe], who was born anatomically as a male, were able to change the sex on her birth certificate without submitting proof of a physical sex change, her birth record would reflect that she is anatomically a female even though she retains the genitalia of a male,” attorneys for the defendants wrote. “Thus, the relief [Doe] seeks would constitute a state-sanctioned inaccuracy.”
The attorneys also claim that granting Doe’s request could result in widespread fraud and identity theft.
“If the name and sex designation on a birth certificate could be changed without any tether to the individual’s anatomical features, as [Doe] suggests, then a bad actor could abuse the system to create several versions of birth certificates to use for nefarious purposes, such as identify theft, defrauding government benefits programs, and defrauding immigration officials.”
The case has been assigned to U.S. District Judge Michael A. Shipp, who hadn’t ruled on whether the case should be dismissed as of presstime.
Julie Chovanes, an attorney for Doe, expressed optimism that the request for dismissal will be denied.
“My client is simply asking for respect under the law as a trans woman,” Chovanes said. “The state is essentially arguing that the current birth-certificate statute is legitimate. The state’s rationale is that counting external sex characteristics — that is, infant penises or vaginas — is a necessary state action. All we want the state to do is to give us the same protections that anyone else gets with an accurate birth certificate.”
Paul Loriquet, a spokesperson for the New Jersey Attorney General’s Office, declined to comment.