Settlement reached on birth certificate gender markers, names in West Virginia

Via Washington Blade

The West Virginia Department of Health and Human Resources’ Vital Registration Office has introduced more accessible and safer policies for transgender people seeking to amend their birth certificates.

This action implemented as a result of a settlement in a lawsuit brought by American Civil Liberties Union, ACLU of West Virginia and the Harvard Law School LGBTQ+ Advocacy Clinic.

“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,” said ACLU of West Virginia Executive Director Joseph Cohen. “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.”

Access to accurate identity documents remains a critical issue for all people but especially trans people. For years, the West Virginia Vital Registration Office required trans applicants seeking to amend the gender marker on their West Virginia birth certificate to produce a circuit court order directing the amendment.

In 2020, the West Virginia Supreme Court of Appeals stripped West Virginia circuit courts of the authority to order such amendments. Despite this ruling, the West Virginia Vital Registration office continued its policy of requiring transr applicants to produce a court order to amend the gender marker on their birth certificate, effectively barring gender marker amendments for trans people.

Further, trans 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.

The ACLU, the ACLU of West Virginia and the Harvard Law School LGBTQ+ Advocacy Clinic in August 2021 sued over both policies. The lawsuit demanded that the agency develop policies by which trans 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.

West Virginia’s Department of Health and Human Resources this past spring announced new birth certificate amendment policies. First, applicants, including trans 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 trans individuals who have had name and/or gender marker amendments by removing the previous information from the face of the newly amended birth certificate. These important policy implementations make birth certificate amendments more accessible and safer for trans applicants.

“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, lead counsel and staff attorney with the ACLU LGBTQ and 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.”

“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, a staff attorney with the ACLU LGBTQ and 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.”

“Birth certificates and other identity documents are essential to navigate daily life,” said Alexander Chen, founding director of the Harvard Law School LGBTQ+ Advocacy Clinic. “Like driver’s 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.”

Read our previous coverage of the clinic’s work on this case.