Wyoming Supreme Court to decide on birth certificate gender changes

CHEYENNE – A court case that would determine whether or not transgender people in Wyoming can change the their gender on their birth certificate is being decided by the Wyoming Supreme Court.

The case, MH v. First Judicial District Court of Laramie County, Honorable Peter Froelicher presiding, was originally scheduled for oral arguments in March. Due to the COVID-19 pandemic, those arguments were canceled, and the case is being decided from the written briefs submitted by each party.

MH, who is being identified by her initials in court documents to protect her privacy, is being represented by attorneys George Powers and Kathryn Jenkins. Laramie County District Court is being represented by Wyoming Attorney General Bridget Hill and Deputy Attorney General Michael McGrady.

MH is asking the Supreme Court to examine two issues in her case: if Laramie County District Court has jurisdiction to recognize her change of sex, and if this jurisdiction would be compliant with the rules for the Wyoming Department of Health and state statute.

“I’m representing a transgender woman who is exercising her rights under Wyoming law,” Powers said. “The statutes and law required her to get a court order to exercise those rights.”

MH is a transgender woman, and at the time of her birth she was assigned the male gender, but MH identifies herself as female. She has been counseled and treated by medical professionals for her transition to female since September 2016.

MH filed a Decree of Name Change in Albany County District Court that stated her gender was “changed for all legal purposes from male to female.” When MH submitted this order to the Wyoming Department of Health for a new birth certificate identifying her as female, the department rejected this because it required a direct ruling from a court.

MH then filed for an Order Directing Issuance of a New Birth Certificate in Albany County District Court. The court then replied that it “inadvertently and incorrectly ordered a change of petitioner’s gender and sex from male to female,” and declared those provisions of its order void.

In April 2019, MH filed an Order Recognizing Change of Sex and Gender in Laramie County District court because she was now living in Cheyenne. The order came before Judge Froelicher, which he denied because he stated he didn’t have the authority to do so.

Powers said this left her in a “Catch-22” situation because the court said it didn’t have the authority to give that order. They’re hoping the appeal will give the Supreme Court the chance to agree with them and allow MH to exercise her rights.

The district court is arguing that Wyoming birth certifications identify a person’s sex, not gender, and denied the petition due to a lack of jurisdiction because neither state statute of the health department “expressly, directly or impliedly authorized a district court or confer jurisdiction on a district court to issue an order amending a person’s gender on an original birth certificate.”

The district court said the Wyoming Legislature hasn’t given the district court the power to issue a gender change order, but the health department’s rules do allow the sex on the birth certificate to be amended.

Harper Jean Tolbin, director of policy at the National Center for Transgender Equality, said states such as Maryland and Indiana have ruled in similar cases that the courts have jurisdiction to decide these petitions. She added that the district court’s ruling would make it impossible for any Wyomingite to get an accurate birth certificate from the state.

“If the high court were to rule that there is no means for individuals to obtain a birth certificate accurately listing their sex, it would raise serious constitutional issues, cause confusion for officials and individuals, and could require new legislation or further litigation to ensure some means for these changes to be made,” she said.

Wyoming is in the minority of states, one of 18, that require a court order to change a person’s gender on their birth certificate – with no other means to do so, Tolbin said.

“The court said it could not usurp the power of the legislature to create statutory authority where the legislature did not establish,” the district court brief stated.

The district court also acknowledged the Maryland case, which the Indiana court relied upon, that found the courts did have jurisdiction to say that a person has changed genders. However, the district court said this case is different because it depended on the Maryland legislature’s statute that a person’s gender can be changed and the courts have jurisdiction to recognize that change.

Rep. Sarah Burlingame, D-Cheyenne, said the Legislature hasn’t kept pace with changes surrounding gender and vital statistics. She said a lot of the current laws have been on the books since statehood.

“That law no longer fits in 2020,” she said. “We have wholly different issues.”

To her, she said this case is a call on the Legislature to clear up their laws; laws that are unclear don’t serve the community. She said the Legislature tried to do this two years ago, but it went spectacularly wrong, she said referencing a committee meeting referred to as the “Sundance Massacre.”

In that committee meeting, Rep. Cathy Connolly, D-Laramie, proposed legislation that would clean up the state’s gender laws.

“The folks who came out of the woodwork to just say, really cruel, really divisive things I think shocked a lot of people, but that’s not Wyoming,” Burlingame said. “We don’t talk about each other that way. We may not agree, but we don’t you know, unhinge our jaws and go after each other. So, I think it’s prompting a hard conversation about who we are.”

The current Wyoming law doesn’t recognize that women can be firefighters or policemen. The law also doesn’t have language in it that recognizes same-sex marriage. Instead, it still refers to people as husbands and wives, instead of a more gender-neutral term like spouses, according to WyoFile.

“You think a woman never put a fire out?” Burlingame said.

Burlingame also added that the current statute doesn’t recognize a husband as a death beneficiary – only the wife. It hasn’t been updated to reflect the reality of same-sex marriage, gender transitions or recognize women in certain positions.

Transgender Wyomingites are our friends and family, she said. They are exposed to abuse and assault at terrifyingly high levels. They also have a higher risk of suicide and self harm.

Burlingame said people know these statistics because organizations such as the Family Acceptance Project have done longitudinal studies on these issues. They’ve found that as the laws and the community reflect back affirmation and acceptance, those rates go down.

She added that next year, there will be an opportunity to address these issues. Burlingame said she plans on running again for the same seat, and she’ll bring a bill that will address some of this.

“We’re just doing what we’ve always done in Wyoming, which is stick up for our neighbors,” Burlingame said. “We don’t need to agree on all the particulars. We just take care of each other.”