CHARLESTON —The American Civil Liberties Union and its West Virginia chapter are suing the state over its transgender birth certificate policy.
ACLU, ACLU-WV and the Harvard Law School LGBTQ+ Advocacy Clinic filed the federal lawsuit on behalf of Xavier Hersom and John Doe against West Virginia Department of Health and Human Resources (DHHR) Secretary Bill J. Crouch, DHHR, Bureau of Public Health Commissioner Ayne Amjad and State Registrar for Vital Statistics Matthew Wickert alleging the state's birth certificate policies are unconstitutional, according to the complaint filed in U.S. District Court for the Southern District of West Virginia.
“This is simply a case about equal access to an important identity document,” Taylor Brown, an ACLU staff attorney, said. “Transgender West Virginians, like every other West Virginian, need identity documents that reflect who they are and that they can safely use to navigate through life.”
Hersom said he applied for and was denied a change on his birth certificate.
“This was devastating to me because the process to change my name and gender marker to reflect who I am has taken me four years so far,” Hersom said. “Many forms of discrimination against LGBTQ+ people are still permitted under West Virginia state law. If a transgender person’s documentation does not reflect their gender identity, they are at risk of experiencing that discrimination.”
Hersom said the court case isn't about just him — it's about all transgender West Virginians.
“We need to focus on how we can make West Virginia a better state now and for future generations," Hersom said.
The complaint states that Hersom and Doe are transgender men, who were born in West Virginia and want to correct the gender markers on their West Virginia birth certificates. They do not want the re-issued birth certificates to disclose their transgender status.
"Plaintiffs simply seek birth certificates they can use without being forced to disclose deeply personal and private information about their transgender status, which could expose them to discrimination and other harms, including a high risk of violence," the complaint states. "Xavier Hersom and John Doe know themselves to be men and live all aspects of their lives as men. As such, both have requested that the West Virginia Department of Health and Human Resources issue them new birth certificates that list their gender as male and remove their prior legal names completely, but these requests were denied."
The plaintiffs argue the current birth certificate policy violates their free speech, due process and equal protection rights.
The plaintiffs are seeking an order requiring the state to issue corrected birth certificates and a judgment permanently enjoining the defendants from denying future requests. They are represented by Brown, Leslie Cooper, Malita Picasso of ACLU in New York; Loree Stark of ACLU-WV in Charleston; and Alexander Chen of LGBTQ+ Advocacy Clinic in Jamaica Plain, Mass.
U.S. District Court for the Southern District of West Virginia case number: 2:21-cv-00450