West Virginia to allow birth certificate gender marker changes without court order

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West Virginia has agreed to amend its policies to allow trans-identified individuals to more easily change the gender marker on their birth certificates as part of a legal settlement with the American Civil Liberties Union.

The ACLU announced Wednesday that ongoing litigation in West Virginia has ended. The ACLU was one of several advocacy organizations representing trans-identified plaintiffs seeking to amend West Virginia state law preventing them from changing their gender marker to match their gender identity without a court order. 

The ACLU was joined by ACLU's West Virginia chapter and the Harvard Law School LGBTQ+ Advocacy Clinic in the lawsuit. 

As explained in the settlement agreement, West Virginia's Department of Health and Human Resources' Vital Registration Office required trans-identified individuals seeking gender marker changes to "submit a court order directing the gender marker change." Additionally, the state amended birth certificates "utilizing a strike-through method" that left "amended information on the face of the amended birth certificate and legible." 

The policy remained in place until 2020 when the West Virginia Supreme Court of Appeals ruled that the state courts did not have the authority to amend the gender markers for trans-identified people. The ruling resulted in trans-identified individuals losing the ability to have their gender markers modified, which meant that they had to continue to carry a birth certificate containing the name that matches their biological sex.

The following year, the plaintiffs filed a lawsuit contending that their inability to obtain a modified birth certificate reflecting their chosen gender identity, as well as the "strike-through method" struck down by the state court, violated their rights under the Equal Protection Clause of the 14th Amendment, the Due Process Clause of the 14th Amendment and the First Amendment of the U.S. Constitution. 

"In May 2022, VRO implemented new policies for applicants seeking amendments on West Virginia birth certificates, including transgender applicants, that in part removed the court order requirement for transgender applicants seeking gender marker amendments, and changed the amendment method, ceasing use of the strike-through amendment method as described and challenged in the Lawsuit," the settlement stated.

Under the terms of the settlement, the state agreed not to revert to its previous method for addressing requests to modify birth certificates.

Additionally, the state will send the plaintiffs amended birth certificates and award them $50,400 to compensate their attorneys' fees and the expenses they incurred when they unsuccessfully tried to have their birth certificates amended.

"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 & HIV Project. "West Virginia's new policies restore a greater deal 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 [kids] where they belong, between an individual and a provider."

ACLU Staff Attorney Malita Picasso said the development is a "tremendous victory for the people of West Virginia, who will now able to update this crucial identity document without having to pursue an unnecessary, long and expensive process to obtain a court order." She expressed relief that "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."

According to the LGBT Movement Advancement Project, West Virginia is now one of 27 states that issue new birth certificates for trans-identified people without requiring them to undergo gender reassignment surgery or obtain a court order. West Virginia is not among the 16 states with a third "X" option on their birth certificates for people who do not identify as either gender.

Twelve states require proof of sex change surgery to change a birth certificate, while three states do not allow people to modify the gender marker on their birth certificate. The requirements for changing the gender marker on a birth certificate are unclear in the remaining eight states. 

Despite the West Virginia settlement, ACLU of West Virginia Executive Director Joseph Cohen indicated that "our work is not yet finished."

"Nonbinary West Virginians are still unable to obtain a birth certificate that accurately reflects their gender," he said. "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."

Ryan Foley is a reporter for The Christian Post. He can be reached at:

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