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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Stacie Ray, et al.,

Plaintiffs, Case No. 
v. Judge Michael H. Watson
Lance Himes, Director, Magistrate Judge Jolson

Ohio Department Health, et aI.,

Defendants.

OPINION AND ORDER

Stacie Ray Basil Argento (?Argento?), Jane Doe and
Ashley Breda (?Breda,? collectively ?Plaintiffs?) sue Lance Himes (?Himes?), in his
capacity as Director of the Ohio Department of Health Karen Sorrel]
(?Sorrell?), in her capacity as Chief of the Ohio Office of Vital Statistics, and
Judith Nagy in her capacity as State Registrar of the Ohio Office of Vital
Statistics (collectively ??Defendants?). ECF No. 1. Defendants move to dismiss
pursuant to Federal Rule of Civil Procedure ECF No. 18. For the
following reasons, the Court DENIES Defendants? motion.

l. FACTS
This action is brought by four transgender individuals who wish to change

the sex on their1 Ohio birth certificates to reflect their gender identity. Compl. 1m

 

1 This Opinion uses the pronouns ?they? and ?them" to be consistent with those used in
the Complaint.

 

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11?14, ECF No. 1. Plaintiffs Ray, Doe, and Breda all identify as women, but their
birth certificates designate their sex as male. Id. 11 1. Plaintiff Argento identifies
as a man, but his birth certificate indicates his sex as female. Id.

ODH, through its Office of Vital Statistics, is responsible for issuing and
correcting birth certificates in Ohio. Id. 111] 16?17, 41. Himes supervises the
activities of ODH and enforces Ohio?s vital statistics laws. Id. TI 15. Sorrell and
Nagy are the Chief and State Registrar of the Office of Vital Statistics,
respectively. Id. 1111 16?17. Sorrell oversees enforcement of Ohio?s vital statistics
laws, while Nagy has authority over the issuance and alteration of Ohio?s birth
certi?cates. Id.

According to the Complaint, each Plaintiff has unsuccessfully requested to
have the sex?which Plaintiffs refer to as the ?gender marker?--?-corrected on their
Ohio birth certificate. Id. 111] 41, 56, 75. Moreover, Plaintiffs allege that, except
for a short time when Defendants exercised their authority to correct birth
certificates for transgender people pursuant to a court order, Defendants have
categorically refused to change the sex on any transgender person?s birth
certi?cate to match their gender identity. Id. 1111 41, 43. Plaintiffs refer to this

failure to act under the law as Ohio?s ?Birth Certificate Policy.? 2 Id. 1] 41.

 

2 According to Plaintiffs, this alleged policy has only been reduced to writing in letters
sent by Defendants rejecting requests by transgender persons to correct their birth
certificate. Id. 1] 42.

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As it stands today, Ohio and Tennessee3 are the only states that do not
permit a transgender person to change the sex on their birth certificate. Id. 11 45.
By contrast, the Ohio Bureau of Motor Vehicles (?Ohio allows transgender
people to change the sex on their driver's license and state identification card to
reflect an individual?s gender identity. Id. 1} 47. Federal agencies, including the
US. Department of State and the Social Security Administration, also allow
changes to an individual?s sex in their respective records. Id. 1] 46. Each Plaintiff
here has changed their name and sex on their Ohio driver?s license or state
identification card and in their social security records, as well as taken steps to
bring their body and gender expression into conformity with their gender identity.
Id. 111] 50, 61, 80, 92.

Gender identity refers to ?a person?s fundamental, internal sense of their
gender.? Id. 11 18. For transgender people, gender identity does not match the
sex assigned to them at birth based on their external genitalia. Id. 19-20.
Rather, according to Plaintiffs, there are other ?sex-related characteristics? such

as chromosomes, hormone levels, and internal reproductive organs that are not

 

3 At the time this case was filed, Kansas was also included among those states that do
not allow changes to birth certificates based on gender identity. However, on June 21,
2019, Kansas became the forty-eighth state to allow transgender individuals to obtain
birth certificates that reflect an individual?s ?true sex? consistent with their gender
identity. Notice, 1, ECF No. 40; Consent Judgment, 3?4, Foster v. Andersen, No. 18?
cv?2552 (D. Kan. June 21,2019).

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in alignment with one another, causing gender identity to be the ?critical
determinant of sex.? Id. 111] 20?21.

Plaintiffs allege that ?[l]iving in a manner consistent with one?s gender
identity is critical to the health and well?being of transgender people.? Id. 11 23.
?The discordance between one?s gender identity and birth-assigned sex can be
associated with clinically signi?cant distress, which is known as gender
Id. 1] 26. Thus, the process by which transgender people come to
live in a manner consistent with their gender identity versus their birth?assigned
sex is known as ?transition.? Id. 11 23.

The transition process is specific to each transgender individual but may
include ?social transition, gender confirmation medical treatment, and/or gender
confirmation surgical treatment." Id. 11 24. Social transition includes changing
one?s name, changing identity documents to reflect gender identity, and/or
changing one's outward appearance, including and clothing. Id. 1] 25.
Plaintiffs allege that while some transgender people undergo medical or surgical
treatment, social transition is also part of the necessary medical treatment for
many transgender people with gender Id. 11 27. Ultimately, the goal
of social transition is to ?bring the person?s physical appearance and social
presentation into better alignment with their gender.? Id. Ti 29.

There is no question that birth certificate is an essential government-
issued document that each person uses to establish their identity throughout their

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lifetime.? Id. 1] 32. According to the Complaint, accurate birth certificates are
essential to gaining ?[a]ccess to employment, education, housing, health care,
banking, travel, and government services.? Id. 1i 2. Plaintiffs claim that lack of
access to an accurate birth certificate ?subjects them to discrimination, privacy
invasions, harassment, humiliation, stigma, harm to their health, and even
violence." Id. 11 3. Plaintiffs also allege that depriving transgender people from
obtaining birth certi?cates that match their gender identity denies them access to
birth certificates they can comfortably use to participate in public life and
interferes with medical treatment for gender by preventing a
transgender person?s ability to live in an outward manner consistent with their
gender identity. Id. 111i 3, 30.

Plaintiffs contend that in any scenario where they are required to present
their current birth certificate, they are forced to disclose their transgender status
to other people whether they want to or not. Id. 11 36. The Complaint provides
several speci?c instances where this is alleged to have occurred to Plaintiffs.
According to Ray, when she presented her birth certificate during the orientation
process for a new job, she was outed as transgender by the human resources
person in front of ten coworkers upon realizing Ray?s birth certificate did not
match the gender on her other documents. Id. 11 54. Similarly, when she
underwent a background check to obtain a hazmat endorsement for her
commercial driver?s license, a receptionist loudly disclosed her status as

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transgender in a public waiting area after noting the mismatch between her birth
certi?cate and driver?s license. Id. 11 55. Likewise, Doe was outed as
transgender to a waiting room of ?more than one hundred people? when she
presented her birth certificate to the Social Security Administration to correct the
?gender marker" in her social security records. Id. 11 85. Confusion regarding
Breda?s ?gender marker? on her birth certi?cate and her other Ohio identification
documents caused a discussion at an Arizona government agency regarding her
being transgender when she attempted to get a new identification card after
relocating to Phoenix. Id. 11 97. She was also outed as transgender after starting
a new job when a human resources member disclosed her transgender identity
to her colleagues upon inspecting her Ohio birth certificate. Id. 11 99. Argento
alleges similar involuntary disclosure of his transgender status as he went
through the process of using his Ohio birth certificate to obtain dual Italian
citizenship and, unsuccessfully, an Italian passport. Id. 1111 66-77. Plaintiffs
describe these experiences as humiliating, stigmatizing, and despairing. Id. 1111
55, 87, 94.

Plaintiffs also claim that such forced disclosure ?seriously jeopardize[s1 a
person?s safety and subject1s] the person to a risk of bodily noting a high
incidence of harassment, discrimination and violence directed at transgender
people. Id. 1111 37, 52, 63, 83, 95. All Plaintiffs recount experiences where they
have been treated with hostility due to their transgender status. Ray alleges that

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due to being harassed and menaced in her work as a truck driver, she has
ceased using truck stops and only uses highway rest stops also used by the
public ?because lighting, security cameras, quick accessibility to the highway,
and the presence of police is Id. 1] 52. She also alleges that after her
transgender status was involuntarily disclosed at a new job, her coworkers
refused to speak to her, referred to her as ?the freak of the company? and a
female coworker threatened to ?beat [her] ass? if she ever saw her in the
women?s restroom. Id. 11 54. As a result, Ray left that job. Id. Doe recalls being
verbally harassed at work. Id. 11 83. Breda alleges that she has been the target
of online harassment. Id. 11 95. According to the 2015 U.S. Transgender Survey
that Plaintiffs cite in their Complaint, approximately one in three transgender
people ?who showed an identity document with a name or gender that did not
match their gender presentation were verbally harassed, denied benefits or
services, asked to leave, or assaulted.? Id. 1] 38.

Plaintiffs now seek a declaration that Defendants? Birth Certificate Policy is
unconstitutional on the basis that it impermissibly interferes with their right to
equal protection under the law, substantive due process, and free speech.
Plaintiffs also request the Court permanently enjoin Defendants from enforcing
the Policy. Defendants move to dismiss Plaintiffs? Complaint in its entirety,
maintaining that Plaintiffs have no constitutional right to change their birth
certificates in the manner requested.

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ll. STANDARD OF REVIEW

A claim survives a motion to dismiss pursuant to Rule 12(b)(6) if it
?contain[s] sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.? Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotations omitted). ?The plausibility standard is not akin to a 'probability
requirement,? but it asks for more than a sheer possibility that a defendant has
acted unlawfully.? Id. A complaint?s ?[f]actua  allegations must be enough to
raise a right to relief above the speculative level, on the assumption that all of the
complaint?s allegations are true.? BellAtl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (internal citations omitted).

A court must also ?construe the complaint in the light most favorable to the
plaintiff.? Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). In doing
so, however, a plaintiff must provide ?more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.? Twombly,
550 U.S. at 555; see also Iqbal, 556 US. at 678 (?Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice?); Ass?n of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d
545, 548 (6th Cir. 2007). naked assertion . . . gets the complaint close to
stating a claim, but without some further factual enhancement it stops short of the

line between possibility and plausibility . . . Twombly, 550 US. at 557.

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Ill. ANALYSIS
A. Ohio?s ?Birth Certificate Policy"

As a preliminary matter, there appears to be disagreement between the
parties regarding whether Plaintiffs are making a facial challenge to Ohio Rev.
Code 3705.15 and 3705.22 or challenging Defendants? application of these
laws.

Pursuant to Ohio Rev. Code 3705.15,

Whoever claims to have been born in this state, and whose

registration of birth . . . has not been properly and accurately

recorded, may file an application for . . . correction of the birth record

in the probate court of the county of the person's birth or residence or

the county in which the person?s mother resided at the time of the

person's birth. . . . The probate judge, if satisfied that the facts are

as stated, shall make an order correcting the birth record .

[W]henever a correction is ordered in a birth record . . . the court

ordering the correction shall forthwith forward to the department of

health a certified copy of the order containing such information as will
enable the department to prepare a new birth record. Thereupon, the

department shall record a new birth record using the correct
information supplied by the court . . . .

ODH can also amend birth records without a court order. Section 3705.22 states
that ?[w]henever it is alleged that the facts stated in any birth . . record tiled in
the department of health are not true, the director may require satisfactory
evidence to be presented in the form of affidavits, amended records, or
certificates to establish the alleged facts.? Moreover, "[t]he director of health shall
have charge of the system of vital statistics, enforce sections 3705.01 to 3705.29
of the Revised Code, and prepare and issue instructions necessary to secure the

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uniform observance of such sections[]? and "adopt rules as necessary to insure
that [Ohio] shall have a complete and accurate registration of vital statistics.? Id. 
3705.02.

Defendants characterize Plaintiffs? claims as a facial challenge to the
constitutionality of Ohio Rev. Code 3705.15 and 3705.22. Mot. Dismiss 3,
ECF No. 18 (?Plaintiffs do not challenge any discretionary policy or practice;
rather, they attack Defendants? adherence to Ohio?s birth-record laws, which do
not allow the relief sought by Plaintiffs?). Based on their interpretation of these
statutory sections, Defendants contend they are required to deny applications
made by transgender individuals for the purpose of changing the listed sex on
their birth certificates to reflect their gender identity. Id. at 4. In support,
Defendants cite an Ohio probate court?s ?nding that Ohio?s birth record laws only
allow modification to the sex designation on a person?s birth certificate where the
sex was inaccurately reported or recorded at birth. In re Declaratory Relief for
Ladrach, 513 828 (Ohio PC. 1987). Further, Defendants argue that
because birth certificates record sex and not gender identity, "Ohio law does not
permit the birth certificate change that Plaintiffs seek.? Mot. Dismiss 6, ECF No.
18.

In the Complaint, Plaintiffs explicitly challenge Defendants? ?Birth
Certificate Policy,? requesting the court ?declar[e] [it] unconstitutional on its face
and as applied.? Compl.1l A, ECF. No. 1. Plaintiffs argue that Defendants

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refusal to correct the ?gender identification field? on birth certificates for
transgender people, ?regardless of whether it is supposedly dictated by state
law,? facially discriminates between transgender people and non-transgender
people. Resp.1-2, ECF No. 23. Plaintiffs state is precisely the Defendants?
choice not to alter and seal birth records that divulge record holders? transgender
identity that Plaintiffs challenge.? Id. at 13 n.6. They go on to argue that ?the
instant constitutional challenge does not require the Court to interpret Ohio?s
statutes, but evaluate the constitutionality of the Policy.? Id. at 2 n2.

The plain language of the Ohio Revised Code sections at issue do not
explicitly contemplate a transgender individual?s ability to change the sex on their
birth certificate to reflect their gender identity nor do they explicitly limit changes
to sex as to only those inaccurately or improperly recorded ?at birth.? Cf. Tenn.
Code Ann. 68-3-203(d) (?The sex of an individual shall not be changed on the
original certificate of birth as a result of sex change surgery?). Rather, according
to Defendants? motion, Ohio?s decision not to allow transgender people to change
the sex on their birth certificate?which Defendants do not dispute is the practice
of ODH?was adopted by Defendants based on interpretation of sections
3705.15 and 3705.22 (supported by one probate court case) and the notion that
birth certificates record an individual?s sex, not their gender identity. Assuming
the allegations in the Complaint are true, particularly Plaintiffs? assertion that
?gender identity is the critical determinant of Compl. 1] 21, ECF No. 1, the

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Court is not convinced that Ohio law prohibits Plaintiffs? request.4 See Ohio Rev.
Code 3705.02. Plaintiffs allege that ODH has allowed transgender individuals
to change the sex on their birth certificate with a court order in the past. Compl. 1]
43, ECF No. 1.

Ultimately, ?the distinction between facial and as?applied challenges is not
so well defined that it has some automatic effect or that it must always control the
pleadings and disposition in every case involving a constitutional challenge. The
distinction is both instructive and necessary, for it goes to the breadth of the
remedy employed by the Court, not what must be pleaded in a complaint.?
Citizens United v. Federal Election Comm?n, 558 US 310, 331 (2010) (emphasis
added). A constitutional claim under the Due Process Clause, for example,
?remains a single ?claim? even where a plaintiff challenges an enactment both on
its face and ?as applied? to the specific facts at issue.? Ass?n of Cmty. Orgs. for
Reform Now v. Corbett, No. 09-951, 2010 WL 3885373, at *6 (W.D. Pa. Sep. 28,
2010) (citing Citizens United, 558 U.S. at 331). Thus, in reviewing the sufficiency

of the Complaint, the Court need not explicitly decide at this stage whether

 

4 In F. V. v. Barron, 286 F. Supp. 3d 1131, 1136 (D. ldaho 2018), the ldaho Department
of Health and Welfare interpreted its vital statistics laws to prohibit changes to the listed
sex unless there was an error in the recording at birth, resulting in a policy of
automatically and categorically denying applications made by plaintiffs and all
transgender individuals for the purpose of changing the listed sex to reflect their gender
identity. In finding the policy unconstitutional as applied, the court noted that ?under an
alternative, constitutionally?sound reading of Idaho?s vital statistics laws, amendments to
the listed sex are not only possible, but procedures are already in place to facilitate such
Id. at 1142.

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Plaintiffs? claims constitute a facial challenge, an ?as applied? challenge, or
something in between. For ease, and pursuant to the allegations in the
Complaint, the Court will refer to Defendants? claimed ?adherence to Ohio?s birth?
record laws,? Mot. Dismiss 3, ECF No. 18, as Defendants' ?Birth Certificate
Policy? moving forward.

B. Due Process

Pursuant to the Fourteenth Amendment of the United State Constitution,
no State may ?deprive any person of life, liberty, or property, without due process
of law.? US. Const. amend. XIV, 1. In addition to requiring fair procedures
upon taking certain actions, the Due Process Clause also ?bar[s] certain
government actions regardless of the fairness of the procedures used to
implement them.? Danie/s v. Williams, 474 US. 327, 331 (1986). This doctrine
is known as substantive due process, and includes ?heightened protection
against government interference with certain fundamental rights and liberty
interests,? including the right to privacy. Does v. Munoz, 507 F.3d 961, 964 (6th
Cir. 2007) (internal quotations omitted).

The Supreme Court has identified two types of interests ?protected by the
right to privacy that [are] rooted in the substantive due process protections of the
Fourteenth Amendment.? Lambert v. Hartman, 517 F.3d 433, 440 (6th Cir.
2008). The first is an interest in ?independence in making certain kinds of
important decisions.?? Id. (quoting Whalen v. Roe, 429 US. 589, 599?600 n.26

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(1977)). The second is an ??interest in avoiding disclosure of personal matters.?
Id. (quoting Whalen, 429 US. at 599, 603?04). The latter is referred to as one?s
informational right to privacy and is the right challenged by Plaintiffs in this case.
Compl.1i??116?17, ECF No. 1.

In analyzing an informational rightato-privacy claim, the Sixth Circuit uses a
two?step process: the interest at stake must implicate either a fundamental
right or one implicit in the concept of ordered liberty; and (2) the government?s
interest in disseminating the information must be balanced against the
individual?s interest in keeping the information private.? Bloch v. Ribar, 156 F.3d
673, 684 (6th Cir. 1998).

1. Implication of a Fundamental Right

The Sixth Circuit has ?recognized an informational-privacy interest of
constitutional dimension in only two instances: (1) where the release of personal
information could lead to bodily harm and (2) where the information
released was of a sexual, personal, and humiliating nature (Bloch).? Lambert,
517 F.3d at 440.

a. 

In v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998), personnel
records of several undercover officers involved in a drug?conspiracy trial against
violent gang members were released to defense counsel. Id. at 1059. The
personnel records contained the names and addresses of the officers, their

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immediate family, and personal references, among other information. Id. Noting
the gang?s ?propensity for violence and intimidation,? Id. at 1063, the Sixth Circuit
held that the officers? privacy interests were violated when ?the city?s disclosure .

. created a risk that the of?cers? personal information might ?fall into the hands
of persons likely to seek revenge upon the officers? and had created a ?very real
threat? to the officers? and their family members? bodily integrity and possibly even
their lives." Lambert, 517 F.3d at 441 (quoting 136 F.3d at 1063).

Plaintiffs contend that Defendants? Birth Certificate Policy ?forces them to
disclose that they are transgender?uevery time they must produce a birth
certificate? putting Plaintiffs ?at risk of bodily harm.? Resp. 9, ECF No. 23.
Defendants argue that because the Complaint does not ?identify a situation
where [Plaintiffs?] birth certificate information was released to a dangerous
individual likely to expose Plaintiffs to violence? the allegations fall short of what
is required under Mot. Dismiss 12, ECF No. 18.

Courts across the United States have explicitly acknowledged the general
hostility and violence affecting the transgender population for at least the last
decade. See, Whitaker by Whitaker v. Kenosha Uni?ed Sch. Dist. No. 1 Bd.
of Educ, 858 F.3d 1034, 1051 (7th Cir. 2017) (?There is no denying that
transgender individuals face discrimination, harassment, and violence because of
their gender identity?); Powell v. 175 F.3d 107, 111?12 (2d Cir. 1999)
(?It is similarly obvious that an individual who reveals that she is transsexual

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potentially exposes herself . . . to discrimination and intolerance.? (internal
quotations omitted?; MAB. v. Bd. of Educ. of Talbot Cnty., 286 F. Supp. 3d 704,
720 (D. Md. 2018) (noting that transgender individuals suffer ?very high rates of
violence? due to their status; ?at least 25% of transgender persons in the United
States were homicide victims in 2017?); Adams by and through Kasper v. Sch.
Bd. of St. Johns Cnty., Florida, 318 F. Supp. 3d 1293, 1299 n.15 (MD. Fla.
2018) (pointing to several sources that support that there is a documented history
of discrimination and violence against transgender individuals); Adkins v. City of
New York, 143 F. Supp. 3d 134, 139 (S.D.N.Y. 2015) people
have suffered a history of persecution and discrimination?); Phillips v. Cane, No.
C13-596 RSM, 2013 WL 4049047, at *6 (W.D. Wash. Aug. 9, 2013) (finding that
putting a transgender lawyer?s personal information in the pleadings, including
her name prior to gender reassignment, subjected her to an increased risk of
physical danger and harassment); In re E.P.L., 891 619, 621 (NY. Sup.
Ct. 2009) (finding numerous documented instances of transgender individuals
being targets of violence).

Moreover, three federal courts have recently addressed the specific threat
transgender persons face due to the government?s refusal to allow modification
of certain essential identity documents to match a transgender individual?s
gender identity. In Arroyo Gonzalez v. Rossello Nevares, 305 F. Supp. 3d 327
(D. PR. 2018), the District of Puerto Rico was confronted with the same

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constitutional challenges to Puerto Rico?s birth certificate policy as Plaintiffs raise
in this case. Like Ohio, Puerto Rico?s policy categorically prohibited transgender
persons from correcting their birth certificates to accurately reflect the person?s
sex based on their gender identity as opposed to their sex assigned at birth. Id.
at 329. Finding 3 Due Process violation, the court held that in forcing plaintiffs to
disclose their transgender status, Puerto Rico?s policy ?expose[d] transgender
individuals to a substantial risk of stigma, discrimination, intimidation, violence,
and danger.? Id. at 333.

Likewise, when faced with constitutional challenges to a similar birth
certificate policy in F. V. v. Barron, the District of Idaho noted:

Statistics regarding the ongoing discrimination transgender
individuals face highlight why involuntary disclosure of transgender
status creates these risks. For instance, nearly twenty?five percent of
surveyed college students, when perceived as a transgender person,
were verbally, physically, or sexually assaulted in 2015. This figure
tracks the percentage of workers reporting mistreatment in the
workplace due to gender identity. More than seventy-five percent of
transgender workers take steps to avoid such mistreatment at work
by hiding or delaying their gender transition, or by quitting their job.

Across all environments, almost fifty percent of transgender people
surveyed for the 2015 report responded that they had been verbally
harassed due to their gender identity. Nearly one in ten reported
being physically assaulted because of their gender identity. Notably,
the reported lifetime suicide attempt rate for transgender people is
nearly nine times the rate of the United States population on average.

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286 F. Supp. 3d 1131, 1138 (D. Idaho 2018) (internal citations omitted).5

In Love v. Johnson, 146 F. Supp. 3d 848 (ED. Mich. 2015), a group of
transgender individuals challenged the constitutionality of a Michigan policy that
required an individual to provide a birth certificate showing their corrected sex in
order to change their gender marker on a state identification card. Id. at 850?51.
Noting the varying degrees of difficulty (or impossibility in some cases) of getting
a corrected birth certificate, plaintiffs alleged that the Michigan policy indirectly
required them to reveal their transgender status to anyone who saw their driver?s
license. Id. at 851-52. Finding a violation of the plaintiffs? due process right to
privacy, the Eastern District of Michigan stated:

Plaintiffs relying on their own experiences and the findings of several

well-documented studies, maintain that there is a great deal of

animosity towards the transgender community. Similar to KaIIstrom,

the Court ?nds ?no reason to doubt that where disclosure of this

[highly intimate] information may fall into the hands of persons"

harboring such negative feelings, the Policy creates a very real threat

to Plaintiffs? personal security and bodily integrity.
Id. at 856 (quoting 136 F.3d at 1063).

The Court recognizes that KaIIstrom?s holding ?created a narrowly tailored
right, limited to circumstances where the information disclosed was particularly

sensitive and the persons to whom it was disclosed were particularly dangerous

vfs-a-vr's the plaintiffs.? Barber v. Overton, 496 F.3d 449, 456 (6th Cir. 2007).

 

5 The District of Idaho ultimately struck down Idaho?s birth certificate policy as
unconstitutional based on the State's concession that it violated the Equal Protection
Clause of the Fourteenth Amendment. Id. at 1134?35.

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However, does not require courts to wait until plaintiffs are actually
assaulted, or worse, to recognize ?a very real threat to [transgender individuals?]
personal security and bodily integrity? upon disclosure of their status. See
136 F.3d at 1063. Rather, ?hypothetical risk? plays an important role
in determining whether Plaintiffs' privacy claim implicates a fundamental liberty
interest.? Love, 146 F. Supp. 3d at 855. In there was no evidence
presented that the gang members used the released personal information to
threaten or harm the officers. Nonetheless, the Sixth Circuit held that ?where the
release of private information places an individual at substantial risk of serious
bodily harm, possibly even death, from a perceived likely threat, the ?magnitude
of the liberty deprivation . . . strips the very essence of personhood.?
136 F.3d at 1064 (emphasis added) (quoting Doe v. Claiborne, 103
F.3d 495, 506?07 (6th Cir. 1996)). Here, like in Plaintiffs have alleged
facts which, accepted as true, suggest that the forced disclosure of Plaintiffs?
transgender status upon presentation of their birth certificates place their
?personal safety and bodily integrity in jeopardy.? Compl. 11 118, ECF No. 1.

ln addition to citing statistical data to support the allegation that
transgender people are disproportionately targets of violencem??nearly one in
three . . . transgender people who showed an identity document with a name
or gender that did not match their gender presentation were verbally harassed,
denied bene?ts or services, asked to leave, or assaulted? (Compl. 1] 38, ECF No.

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Complaint alleges several instances where Plaintiffs were personally
subject to hostility and harassment when forced to produce a birth certificate that
did not match their gender identity. See Compl. 1] 54, ECF No. 1 (After a human
resources person disclosed Ray?s transgender identity upon presentation of her
birth certi?cate, 3 female coworker threatened to ?beat [her] ass? if she ever saw
her in the women?s restroom); Id. 1] 85 (Doe was met with ?overt hostility? upon
presenting her birth certificate at the Social Security office, when a staff person
loudly told her she could not ?just change [her] from male to female based on
[her] Id. 1] 97 (Breda was exposed to hostility when a clerk at the
Arizona Department of Transportation erroneously denied her request for a state
identification card with a female gender marker upon presenting her birth
certificate). As a result of their transgender status, Plaintiffs also recount
instances of having to use specific restrooms based on their proximity to security,
verbal harassment at work, and online harassment. Id. 52, 83, 95. As the
court in Love concluded, ?[t]hese allegations cut at the very essence of
personhood protected under the substantive component of the Due Process
Clause.? 146 F.3d at 855 (internal quotations omitted).

b. Bloch

In addition to putting them at risk of bodily harm, Plaintiffs also contend
that Defendants? Birth Certificate Policy forces them to reveal ?highly personal
and intimate? information, is. their transgender status, each time they are

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required to produce their birth certificates. Compl. 11 116, ECF No. 1; Resp. 9,
ECF No. 23. Defendants argue that Plaintiffs do not have a fundamental right to
?keep secret how their sex was reported and recorded at birth.? Mot. Dismiss 11,
ECF No. 18.

in Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998), a sheriff released ?highly
personal and extremely humiliating details? of the rape of the plaintiff during a
press conference, some of which were ?so embarrassing [the plaintiff] had not
even told her husband.? Id. at 676. The Sixth Circuit held that such disclosure
violated the plaintiff?s right to privacy because ?sexuality and choices about sex,
in turn, are interests of an intimate nature which define significant portions of our
personhood. Publically revealing information regarding these interests exposes
an aspect of our lives that we regard as highly personal and private.? Id. at 685.

The Second Circuit has long held that the Constitution protects the right to
maintain the confidentiality of one?s transsexualism.?S Powell v. 175 F.3d
107, 112 (1999); see also Maison v. Bd. of Educ. of City School Dist. of New
York, 631 F.3d 57, 64?65 (2d Cir. 2011). Finding it analogous to the right to
maintain privacy over certain medical conditions, the court explained its
reasoning in reaching this conclusion:

Individuals who have chosen to abandon one gender in favor of

another understandably might desire to conduct their affairs as if such

a transition was never necessary That interest in privacy. is
particularly compelling. .[T]ranssexualism IS the unusual condition

 

5 The Court recognizes that ?transsexualism? is an outdated term.
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that is likely to provoke both an intense desire to preserve one's
medical confidentiality, as well as hostility and intolerance from others.

Id. at 111. Similarly, upon holding that Puerto Rico?s birth certificate policy
violated the plaintiffs? right to privacy in Arroyo Gonzalez, the court concluded
that ?there are few areas which more closely intimate facts of a personal nature
than one?s transgender status.? 305 F. Supp. 3d at 333 (internal quotations
omitted); see also Doe v. City of Detroit, No. 18CV11295, 2018 WL 3434345, at
*2 (ED. Mich. July 17, 2018) (permitting a transgender individual to proceed by
pseudonym upon finding that the individual?s transgender status ?certainly
qualifies as information of the utmost intimacy? (internal quotations omitted)).
This Court recently held that patients had a fundamental right to keep
private medical records surrounding their abortion procedures because such
records included details regarding the patients? sexuality and sexual choices,
which the Court concluded was information of a ?sexual, personal, and
humiliating nature.? Planned Parenthood Sw. Ohio Region v. Hodges, No.
15CV568, 2019 WL 1439669, at *5 (SD. Ohio Mar. 31, 2019); see also
Eastwood v. Dep?t. of Corr. of State. of Okt, 846 F.2d 627, 631 (10th Cir. 1988)
(explaining that the right to privacy is ?implicated when an individual is forced to
disclose information regarding personal sexual matters?). As the District of
Rhode Island explained, ?[u]nquestionably, one?s sexual practices are among the

most intimate parts of one?s life. When those sexual practices fall outside the

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realm of 'conventional? practices which are generally accepted without
controversy, ridicule, or derision, that interest is enhanced exponentially. As a
transsexual, plaintiff's privacy interest is both precious and fragile . . .
Doe v. Blue Cross Blue Shield of Rhode Island, 794 F. Supp. 72, 74 (D. RI.
1992)

According to Plaintiffs, ?[d]enying transgender people birth certificates that
match their gender identity reveals private information in contexts where this
information would otherwise remain undisclosed . . . regardless of whether a
person?s transgender identity may otherwise be known by others . . . and
regardless of a person?s desire not to disclose that personal information.? Compl.
1T 36, ECF No. 1. Plaintiffs describe such involuntary disclosure of this ?highly
personal and intimate information" about their transgender status as humiliating,
stigmatizing, and despairing. Id. 111] 55, 87, 94. As opposed to ?[m]aintaining
secrecy over basic vital statistics? as Defendants categorize it, Mot. Dismiss 11,
ECF No. 18, the Court agrees with the Second Circuit that ?[t]he excru[c]iatingly
private and intimate nature of [being transgender], for persons who wish to
preserve privacy in the matter, is really beyond debate." Powell, 75 F.3d at 111;
see also Love, 146 F. Supp. 3d at 855.

The Court finds that under both and Bloch, Plaintiffs have
adequately alleged that Defendants? Policy of refusing to change birth certificates
to reflect gender identity implicates a release of personal information that is of a

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?sexual, personal, and humiliating nature? and ?could lead to bodily harm,?
resulting in a violation of Plaintiffs? informational right to privacy.7 Lambert, 517
F.3d at 440; see Arroyo Gonzalez, 305 F. Supp. 3d at 333; Love, 146 F. Supp.
3d at 856.

c. Public Record

Defendants also argue that since a birth certi?cate is a public record,
Plaintiffs cannot claim a privacy interest in information within that record. Mot.
Dismiss 10, ECF No. 18. Plaintiffs maintain that ?[I]imited availability of
information to the public does not foreclose a privacy claim? because it is the
disclosure of "Plaintiffs? assigned sex at birth in a context that reveals them to be
transgendef? that violates their right to privacy. Resp. 14, ECF No. 23 (emphasis
added). While the Court agrees with Defendants that birth certificates in Ohio
are public record,8 the Court also agrees with Plaintiffs? framing of the privacy

interest at issue.

 

?r The Court would also note that pursuant to a consent judgment between three
transgender persons and the Kansas Statewide Transgender Education Project
(plaintiffs) and of?cials representing the Kansas Department of Health and Environment
(defendants), the District of Kansas very recently held that Kansas? birth certificate
policy, which prohibited transgender people born in Kanas from obtaining birth
certificates consistent with their gender identity, violated the Equal Protection Clause
and the Due Process Clause of the Fourteenth Amendment. Consent Judgment, 
Foster v. Andersen, No. 18-cv-2552 (D. Kan. June 21, 2019).

3 State ex rel. Hammons v. Chisholm, 792 1120 (Ohio 2003).

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in Cox Broadcasting Corp. v. Cohn, the Supreme Court held that the
defendants were not liable for a violation of privacy for publishing the name of a
deceased rape victim where the information was taken from a court record open
to public inspection. 420 US. 469, see also Munoz, 507 F.3d at
965?66 (finding that, because plaintiffs? convictions were public and remained
public, there was no right to privacy implicated in their publication). The Court
stated that ?the prevailing law of invasion of privacy generally recognizes that the
interests in privacy fade when the information involved already appears on the
public record.? Cohn, 420 U.S. at 494-95.

As Defendants suggest, members of the public can request certified copies
of vital records, including birth certificates, pursuant to Ohio Rev. Code
Mot. Dismiss 10, ECF No. 18. In this scenario, disclosure of a
Plaintiff?s birth certificate to a third party may only constitute a de minimis
invasion of privacy when the gender identities of the Plaintiffs are otherwise
unknown. See U. S. Dep?t. of State v. Ray, 502 US. 164, 176 (1991). However,
Plaintiffs are not claiming an invasion of privacy due solely to the disclosure of
their birth certificates or the sex listed on their birth certificates. Plaintiffs are
claiming that ?disclosing the Plaintiffs? assigned sex at birth in a context that
reveals them to be transgender violates their right to privacy.? Resp. 14, ECF No
23. In other words, in any situation where Plaintiffs must present their birth
certificate, including those alleged in the Complaint, they are forced to

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involuntarily disclose their transgender status due to a mismatch with other
identity documents, their outward appearance, or both. Cf. Carcano v. McCrory,
203 F. Supp. 3d 615, 648 (M.D.N.C. 2016) (explaining that as opposed to laws
that govern the modification of birth certificates, where the law required
transgender persons use the bathroom that matched the sex on their birth
certificate but a person could change the sex on their birth certificate, ?an
individual?s choice of bathroom does not directly or necessarily disclose whether
that person is transgender; it merely discloses the sex listed on the person?s birth
certificate?). Thus, the invasion of privacy becomes different and significant
when that information is linked to particular Plaintiffs upon presentation of their
birth certificates. See Ray, 502 US. at 176.

Unlike the victim?s name in Cohn, Plaintiffs? transgender status does not
appear in a public record. Accordingly, Plaintiffs? privacy interest in their
transgender status does not fade away because their birth certificates are public
record. See U. 8. Dept. of Def. v. Fed. Labor Relations Auth., 510 US. 487, 500
(1994) (?An individual?s interest in controlling the dissemination of information
regarding personal matters does not dissolve simply because that information
may be available to the public in some form?); U. 8. Dept. of Justice v. Reports
Comm. for Freedom of Press, 489 US. 749, 770 (1989) fact that an event
is not wholly ?private? does not mean that an individual has no interest in limiting
disclosure or dissemination of the information.? (internal quotations omitted));

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Abraham Rose, P.L.C. v. US, 138 F.3d 1075, 1083 (6th Cir. 1998) clear
privacy interest exists with respect to such information as names, addresses, and
other identifying information even if such information is already available on
publicly recorded filings?).

2. State Action

Under 42 U.S.C. 1983, Plaintiffs must prove that Defendants are acting
under the color of state law to deprive them of rights secured by federal law.
Bloch, 156 F.3d at 677. It is not contested that, in denying Plaintiffs corrected
birth certificates, Defendants were acting in their capacities as state government
employees of ODH. Compl. 111] 15-17, ECF No. 1. However, Defendants
contend that because the Sixth Circuit only recognizes a right to informational
privacy when the government is responsible for releasing protected information,
Plaintiffs? Due Process claim fails. Mot. Dismiss 11, ECF No. 18. Defendants
argue that it is Plaintiffs, not Defendants, that are disclosing the information in
their birth certificates to third parties. Id. at 12.

Unlike this Court need not address whether the actions or
potential actions of private actors can be attributed to Defendants. 136 F.3d at
1066. Here, there is no dispute that a birth certificate is a government document.
According to Defendants, because a birth certificate is a government document,
?the state maintains absolute control over what information can be displayed on
birth certificates.? Mot. Dismiss 7--9, ECF No. 18. While ODH is not the entity

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requiring disclosure or the entity actually disclosing the information, the threat of
disclosure is imposed indirectly by the government through its birth certificates.
K.L. v. State, Dept. of Admin, Div. of Motor Vehicles, 2012 WL 2685183, at *6
(Sup. Ct. Alaska Mar. 12, 2012); see also Arroyo Gonzalez, 305 F. Supp. 3d at
333 (finding a violation of constitutional right to privacy where the Commonwealth
forced plaintiffs to reveal their transgender status by permitting plaintiffs to
change their name on their birth certificate but not their gender marker); Love,
146 F. Supp. 3d at 856 (finding that state action infringed upon a fundamental
right by requiring plaintiffs to carry an identification card with a sex that con?icts
with their lived sex, thereby forcing them to reveal their transgender status).

It is without question that the government ?may not deny a benefit to a
person on a basis that infringes his constitutionally protected interests.? Perry v.
Sindermann, 408 US. 593, 597 (1972). ?Just as the State may not directly order
someone to stop exercising his rights, it may not coerce him into ?giving them up?
by denying benefits if he exercises those even if he is not entitled to
that benefit. Planned Parenthood of Greater Ohio v. Hodges, 917 F.3d 908,
911??12 (6th Cir. 2019). When Plaintiffs present their birth certificates, the
discrepancy between their physical appearance, other identity documents, and
their birth certificates force disclosure of Plaintiffs? transgendered status.
Plaintiffs cannot avoid such disclosure unless Defendants change their Policy or
Plaintiffs forego participating in public life?*?determining eligibility for

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employment, obtaining other identity documents (including driver?s licenses, state
identification cards, social security cards, passports . . . establishing school
records, proving age, and enrolling in government programs.? Compl. TI 33, ECF
No. 1. The Court is not persuaded at this stage of the litigation that Defendants,
through the ?absolute control? over the information contained in Plaintiffs? birth
certificates, have no part in the forced disclosure of Plaintiffs? transgender status.

3. Potential State Interests

When a law infringes on a fundamental right, it is subject to strict scrutiny
and cannot be upheld absent a showing by the State that the law is narrowly
tailored to further a compelling interest. United States v. Brandon, 158 F.3d 947,
959-60 (6th Cir. 1998). Whether a law is narrowly tailored ?will turn on whether it
is the least restrictive and least harmful means of satisfying the government?s
goal . . . Id. at 960.

a. Accurate Records and Prevention of Fraud

In their motion, Defendants do not assert any compelling interests that
specifically support the Birth Certificate Policy in addressing Plaintiffs? Due
Process argument. Rather, Defendants rest on the argument that because
Ohio's birth certi?cates are public record and Defendants? refusal to change the
sex designation on their birth certificates does not implicate a fundamental liberty
interest, Plaintiffs? claim fails as a matter of law. Mot. Dismiss 10, ECF No. 18.
However, Defendants do raise two government interests in support of the Birth

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Certificate Policy in the context of an intermediate scrutiny or rational basis equal
protection analysis: ?the well-ordered operation of the state?s vital recordkeeping
and the prevention of fraud.? Id. at 17. Even if the Court were to find that these
are compelling interests, Defendants? Birth Certificate Policy is not narrowly
tailored or ?least restrictive? to satisfy either.

There is no dispute that Ohio allows transgender individuals to change
their sex to reflect their gender identity on their driver?s licenses and state
identification cards. Compl. 1147, ECF No. 1; Mot. Dismiss 20, ECF No. 18. In
attempting to distinguish birth records from these other state identity documents,
Defendants argue that ?[b]irth certificates are historical records.? Mot. Dismiss
19, ECF No. 18. The Court assumes that Ohio has a compelling interest in
maintaining the historical accuracy of all information in its birth records. Yet,
Ohio law does provide procedures to amend a birth certificate to change one?s
name and the names of one?s parents in the case of an adoption. Ohio Rev.
Code 3705.12, 3705.13. Moreover, forty-eight other states provide
procedures for transgender individuals to change the sex on their birth
certi?cates. Complthe District Court noted in Love, ?[t]he
Court seriously doubts that these states have any less interest in ensuring an
accurate record?keeping system.? 146 F. Supp. 3d at 857.

Similarly, Defendants fail to articulate how the State?s interest in preventing
fraud provides for laws that allow amendments to some parts of the birth

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certificate but not others, or permits changes to driver?s licenses and state
identification cards and not birth certificates. Under Defendants? Policy, Plaintiffs
all currently possess government-issued identity documents that provide they are
both male and female. See Compl. 1m 50, 51, 61, 62, 80?82, 92, 93, ECF No. 1.
The Court cannot conceive how this helps prevent fraud rather than perpetuate it.

b. Other Compelling Reasons

Defendants also identify several other ?compelling reasons? they believe
support the request to dismiss the Complaint. Defendants claim that invalidating

3! It

Ohio?s Policy would ?violate traditional judicial-restraint principles, upend a
comprehensive legislative scheme,? and ?implicate? core federalism concerns.?
Mot. Dismiss 18, ECF No. 18.

In the strict scrutiny context, ?these vague, speculative, and
unsubstantiated state interests do not rise anywhere near the level necessary to
counterbalance the speci?c, quantifiable, and particularized injuries? alleged by
Plaintiffs and suffered by transgender people as a whole when they miss out on
basic government benefits or face being outed as transgender upon presentation
of their birth certificates. Obergefell v. 962 F. Supp. 2d 968, 981 (SD.
Ohio Dec. 23, 2013), rev?d sub nom. DeBoer v. Snyder, 772 F.3d 388 (6th Cir.
2014), rev?d sub nom. Obergefell v. Hodges, 135 S. Ct. 2584 (2015). Further,
the Court is not persuaded that ?[f]ederalism principles dictate that this Court

leave this task to the reasoned consideration of Ohio?s simply

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because no national consensus exists on what is required to allow an individual
to change the sex on their birth certificate. Mot. Dismiss 19, ECF No. 19.

?The dynamic of our constitutional system is that individuals need not await
legislative action before asserting a fundamental right.? Obergefell, 135 S. Ct. at
2605. ?An individual can invoke a right to constitutional protection when he or
she is harmed, even if the broader public disagrees and even if the legislature
refuses to act.? Id. State laws and policies are still subject to guarantees afforded
by the Constitution. Obergefell, 962 F. Supp. 2d at 981. Additionally, it is not
compelling that a change to Defendants? Policy might be challenging to
implement. Forty-eight other states have figured it out. See In re A.L., 81 
283, 288 (Ind. Ct. App. 2017) amendment of a birth certificate with
respect to gender is not novel. The vast majority of states . . . have allowed it
in practice for some time." (internal quotations omitted)). Therefore, none of
these other asserted interests are compelling enough to counteract the alleged
infringement on Plaintiffs? right to privacy on a motion to dismiss.

C. Remaining Claims

in light of the Court?s finding that Plaintiffs have raised a cognizable claim
under the Due Process Clause, the principle ofjudicial restraint cautions against
deciding the sufficiency of Plaintiffs? remaining constitutional claims. Love, 146
F. Supp. 3d at 857; see Camreta v. Greene, 563 US. 692, 705 (2011) 
longstanding principle of judicial restraint requires that courts avoid reaching

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constitutional questions in advance of the necessity of deciding them.? (internal
quotations omitted?; Harmon v. Brucker, 355 US. 579, 581 (1958) (explaining
that courts have a ?duty to avoid deciding constitutional questions presented
unless essential to proper disposition of a case"). Therefore, the remainder of
Defendants? motion to dismiss is denied without prejudice. Defendants may seek
leave to renew the motion should future developments require the Court to rule
on either of the remaining claims.

IV. CONCLUSION

For the foregoing reasons, Defendant's motion, ECF No. 18, is DENIED.

MICHAEL H. JUDGE
UNITED STATES DISTRICT COURT

IT IS SO ORDERED.

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