February 8, 2021
April 27, 2021 update: Per a court filing, the Ohio Department of Health will not appeal the decision below and is working on a process for people to change the gender markers on their Ohio birth certificates.
The U.S. District Court for the Southern District of Ohio recently found that Ohio’s birth certificate rule, which prohibited transgender individuals from changing the gender reflected on their birth certificates, is unconstitutional. At the time of the ruling, Ohio was one of only two states that prohibited transgender individuals from changing the “gender marker” on their birth certificates. The prohibition was based on a policy of the Ohio Department of Health which would not permit the change – even with proof of transition, proof of gender confirmation surgery, or court orders
In finding the policy unconstitutional, the court concluded that the policy prevented transgender people from obtaining a document essential to everyday living and subjected them to discrimination and potential violence. The court cited testimony from plaintiffs detailing instances where they were subjected to threats and other discriminatory treatment after being required to provide a birth certificate to a new employer where the gender marker did not align with the individual’s driver’s license and other documents. The court found that each plaintiff had provided evidence of being harassed, humiliated or threatened with harm when their “highly personal transgender status was forcibly disclosed.” The court did not find any of the justifications offered by the Ohio Department of Health and other defendants to be persuasive.
This change could impact how Ohio school districts treat requests to make changes to educational records. Prior to the court’s decision, while an individual could legally change his/her name, and request that educational records be updated to reflect the individual’s new legal name, the individual’s gender marker in the school’s system could not be changed. Now, schools could be faced with requests to change both an individual’s name and gender marker. These changes would be appropriate upon presentation of proper paperwork (e.g., legal name change, updated birth certificate, etc.).
Even in the absence of paperwork that allows for an “official” change of gender or name, schools should work with students and families regarding the use of the student’s preferred name in routine communication (e.g., in the classroom, on assignments, etc.). Additionally, schools should be cognizant of the legal precedent that permits transgender students to use the restroom of the sex by which they identify with and directs schools to address students by their preferred pronouns. It is also important that school districts continue to address name and gender change requests in a consistent manner.
School districts should monitor developments in this area, including any updated documentation requirements from the Ohio Department of Education or the Ohio Department of Health and/or new guidance that may come from the U.S. Department of Education’s Office for Civil Rights under the Biden administration.
Walter | Haverfield attorneys will continue to monitor this topic as the new administration may instill further change regarding gender and record keeping, which will have a direct impact on school districts. If you have questions, please reach out to us here. We are happy to help with any challenges your district may be experiencing.