CHARLESTON – The ACLU of West Virginia has settled a lawsuit after the West Virginia Department of Health and Human Resources introduced more accessible policies for transgender people to amend birth certificates.
The DHHR’s Vital Registration Office requires that circuit court order to amend the gender marker on a birth certificate But in 2020, the state Supreme Court took the ability of circuit courts to grant orders that would allow such amendments to birth certificates. Even after the ruling, the Vital Registration Office continued its policy of requiring transgender applicants to produce the court order to amend gender markers on birth certificates even though the courts were not allowed to grant such orders, thus effectively barring gender marker amendments for transgender people.
“Further, transgender applicants who previously successfully amended their gender marker and/or name on their birth certificate, still faced having to carry a birth certificate that left their deadname and incorrect gender marker clearly legible on the face of the newly amended birth certificate, due to the Vital Registration Office’s amendment method,” ACLU-WV said in a press release.
In August 2021, the ACLU, ACLU-WV and the Harvard Law School LGBTQ+ Advocacy Clinic sued over these policies. The complaint asked the court to require the DH toHR develop policies by which transgender people with West Virginia birth certificates could both obtain a gender marker amendment and do so in a method that does not disclose their transgender status on the face of the amended birth certificate.
This April, the DHHR announced new birth certificate amendment policies.
“This is an incredible policy change not only for our clients but all transgender people with West Virginia birth certificates who require amendments,” said Taylor Brown, a staff attorney with the ACLU LGBTQ & HIV Project. “West Virginia’s new policies restore a greater degree of autonomy and self-determination for transgender people in West Virginia.
“In today’s climate, it is more important than ever for the government to leave personal decisions of these kinds where they belong, between an individual and their provider. Not a court, legislators, or administrative bodies. This is an important win for those reasons alone.”
First, applicants, including transgender applicants, who are seeking to amend the gender marker on their West Virginia birth certificate, no longer need a court order. They need only provide a simple provider attestation form available from the West Virginia Vital Registration Office’s website. Further, the new policies amend birth certificates in a manner that reduces the risk of outing transgender individuals who have had name and/or gender marker amendments by removing the previous information from the face of the newly amended birth certificate.
“This is a tremendous victory for the transgender people of West Virginia, who will now be able to update this crucial identity document without having to pursue an unnecessary, long and expensive process to obtain a court order,” said Malita Picasso, another staff attorney with the ACLU LGBTQ & HIV Project. “Now, transgender West Virginians will not be forced to disclose their transgender status every time they present a birth certificate with a gender marker that does not match their gender identity.”
The founding director of the Harvard LGBTQ+ Advocac Clinic agreed.
“Birth certificates and other identity documents are essential to navigate daily life,” Alexander Chen said. “Like drivers’ licenses, birth certificates are commonly used to verify a person’s identity.
“That transgender West Virginians can now obtain birth certificates matching their true selves is an important part of making our country more reflective of our core constitutional values, including recognizing the fundamental dignity and right to privacy of every person.”
So did ACLU-WV’s executive director.
“This is a major victory for the thousands of transgender West Virginians who will now be able to obtain accurate birth certificates to help them navigate their lives more safely,” Joseph Cohen said. “But we know our work is not yet finished. Nonbinary West Virginians are still unable to obtain a birth certificate that accurately reflects their gender.
“Since April of this year, U.S. citizens have been able to select an X gender marker on passport applications. We will continue to work with our partners to update West Virginia’s policies so that all West Virginians can have the accurate identity documents they need.”
