Three transgender children lost their challenge to Arizona’s birth certificate law. But the appeals court that ruled against them also said trans people born in the state can change their sex marker without surgery, as long as they obtain a court order.
On Oct. 6, a panel of the U.S. Court of Appeals for the 9th Circuit reversed a lower-court win for three trans kids in Roe v. Johnston. Judge Roopali Desai, writing for herself and Judge Andrew Hurwitz, vacated the order that had deleted the word “operation” from Arizona’s birth certificate law, according to the opinion.
The reason is the part that matters. The kids “do not need an injunction from this court to grant them relief,” Desai wrote. “Arizona law allows them to amend the sex marker on their birth certificates without undergoing a sex change operation.”
How Arizona’s Birth Certificate Law Works Now
The law, A.R.S. § 36-337, has two doors. If you’ve had surgery, you send the state registrar a request plus a doctor’s letter about “a sex change operation.” Or a court orders the change, and the registrar has to make it.
The panel read that second route as a catch-all. Everyone else, Desai wrote, “including transgender people who have not undergone a sex change operation,” can amend their birth certificates “by obtaining a court order.”
And the Arizona Department of Health Services has no say once a judge signs. “The statute leaves no discretion to the agency,” the opinion says. “It shall amend a birth certificate if a court order directs it to do so.”
That was aimed at some state court judges. Rachel Berg, a lawyer with the National Center for LGBTQ Rights who argued for the kids, said some judges had turned down these requests, figuring the health department wouldn’t honor an order without proof of surgery, KJZZ reported. Ten years ago or so, that really was the health department’s stance.
The opinion rejected that reasoning. Refusing because a judge predicts the agency “wouldn’t honor it” is “doubly improper,” she wrote, and the department “correctly takes no such position.”
What Trans People Born in Arizona Lost in the 9th Circuit Ruling
Still, the kids lost. Their lawyers said going to court is hard and costs money, and court files are usually public. The panel held that the statute provides a route to amendment for people who have not had surgery and rejected the plaintiffs’ facial challenge to the law. “We find no constitutional violation,” she wrote.
On privacy, the kids’ side said there’s “no guarantee that a request to seal their records would be granted.” Desai pointed to Arizona’s sealing rule anyway. They “may be right,” she wrote, but they hadn’t shown harm “in every conceivable application” of the law.
The case returns to U.S. District Judge James Soto in Tucson. The ruling does not automatically amend anyone’s certificate: a person using the court-order route still has to obtain that order.
Senate President Warren Petersen and House Speaker Steve Montenegro, both Republicans, joined the case to defend the surgery rule. KJZZ said they didn’t respond right away. Last year Gov. Katie Hobbs vetoed a bill that would have wiped out every way to change the sex on an Arizona birth certificate, the Daily Independent reported.
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