Supreme Court says Wyomingites can change sex on birth certificate

By Isabella Alves, Wyoming Tribune Eagle Via Wyoming News Exchange
Posted 6/16/20

Wyomingites now have the right to change their sex on their birth certificate, according to a Wyoming Supreme Court opinion issued Wednesday.

The Supreme Court reversed a Laramie County District …

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Supreme Court says Wyomingites can change sex on birth certificate

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Wyomingites now have the right to change their sex on their birth certificate, according to a Wyoming Supreme Court opinion issued Wednesday.

The Supreme Court reversed a Laramie County District Court judge, who had concluded that the court didn’t have the jurisdiction to allow an individual to change the sex listed on his or her birth certificate.

MH, the plaintiff in the case, is a transgender woman who’s identified by only her initials in court records to protect her privacy. At the time of her birth, she was assigned the male gender, but MH identifies herself as female, according to court documents.

In order to change the sex on her birth certificate, the Wyoming Department of Health said she needed a court order, but Laramie County District Court Judge Peter Froelicher of Cheyenne denied that request.

Froelicher said he couldn’t rule on MH’s request because Wyoming’s Vital Records Act doesn’t contain language about what to do with a sex change, only mentioning court jurisdiction over for name changes. Because sex changes aren’t included in the statute, Judge Froelicher said the Legislature must have intended to limit the district court’s jurisdiction to name changes.

However, after MH appealed, the Wyoming Supreme Court reversed and remanded the ruling.

The high court said there was a “fundamental flaw” in the district court’s reasoning: Froelicher applied presumption against his jurisdiction, the justices said, while the Wyoming Constitution requires courts to presume that they have jurisdiction.

Writing for the court, Justice Kate Fox said the Legislature could have only restricted the district court’s jurisdiction by specifically saying so.

“... M.H.’s petition for an order to correct her sex and gender invoked the district court’s jurisdiction here,” Fox wrote for the court.

The court also noted that Department of Health regulations allow people to amend “any item” on their birth certificates.

“If a person’s sex — or any other information on a vital record — is incorrect, inability to amend that information would undermine the accuracy of her vital records,” the court wrote, saying that the Legislature presumably “did not intend to provide a mechanism for correction of some information on a birth certificate while leaving other, inaccurate, information in place.”

Justice Keith Kautz issued an opinion, specially concurring with the Supreme Court’s decision. Kautz agreed that the court had jurisdiction to hear the case, but thought it was inappropriate for the high court to interpret and advise on how state law and Department of Health regulations apply to MH’s petition. Kautz said the only issue raised on appeal was whether the district court had subject matter jurisdiction.

He noted that one section of the Wyoming Department of Health regulations limit birth certificate corrections to name changes and the date, place and hour of birth — apparently contrasting with the language saying that “any item” can be amended. The issue of which regulations should apply “was not presented to us, is not necessary for our decision, and should not be decided here.”

Kautz added that, “allowing her to change her ‘sex’ merely because she now identifies as a ‘female’ or she has since had a ‘sex-change’ surgery (which is unclear from the record) undermines the integrity and accuracy of her birth certificate as it would no longer reflect the facts of her birth.”

(Tribune Editor CJ Baker contributed reporting and editing.)

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