Note by Cassandra Fernandez de Aenlle
Kayla Gore, a transgender woman residing in Memphis, Tennessee, has lived openly as a woman since 2012 and has undergone gender-affirming medical treatments to live in accordance with her gender identity. Nonetheless, she has been a victim of invasive questioning when presenting her birth certificate for employment and has even forgone certain job opportunities to avoid disclosing her transgender status for fear of harassment and discrimination. Ms. Gore's fears are not groundless. Nearly half of transgender individuals experience workplace harassment, sixty-four percent report verbal attacks, and twenty-five percent endure physical assaults. Many are also denied basic rights, such as access to healthcare and housing.
Tennessee issues birth certificates to all individuals born under its jurisdiction as required by its Vital Records Act of 1977. Birth certificates are used to obtain other identifying documents, such as passports, social security cards, and drivers licenses. While Tennessee allows for a person to amend their birth certificate for a number of reasons, it categorically excludes transgender individuals from amending their sex, stating, “[t]he sex of an individual shall not be changed on the original certificate of birth as a result of sex change surgery.”
Gore and three other transgender women, who were all born in Tennessee and issued birth certificates that listed their sex as “male,” challenged the statute in court. The plaintiffs offered four theories on how the act violated the Fourteenth Amendment: “(1) the law discriminates based on sex; (2) the law discriminates based on transgender status; (3) the law discriminates based on irrational classifications; and (4) the law infringes a substantive due process right to informational privacy.” The state of Tennessee filed a motion to dismiss the plaintiffs' claims, which the United States District Court for the Middle District of Tennessee granted. The district court rejected the plaintiffs' argument--that the sex listed on a transgender person's birth certificate was incorrect insofar as it differed from the plaintiff's gender identification--because it accepted the state's definition of sex as strictly based on the observed biology at birth. The court, however, created an exception for persons who display ambiguous genitalia at birth who are allowed to amend their birth certificate based on non-genitalia characteristics. This is in contrast to the treatment of transgender individuals, who are specifically prohibited from amending their birth certificate regardless of genitalia, nor other characteristics including lived gender identity or expression. Given that Tennessee would not recognize gender identity as a means of sex identification, the court ruled that there had been no violation of the Equal Protection Clause. The United States Court of Appeals for the Sixth Circuit affirmed on appeal, finding that the U.S. Constitution does not require Tennessee to define “sex” as “gender identity” on state documents, including birth certificates. It held that Tennessee has the discretion to define sex and that the state's policy of recording biological sex regardless of an individual's gender identity was not discrimination on the basis of sex and, therefore, this was not a violation of the Equal Protection Clause. Notably, the court declined to apply Civil Rights Act precedent that clarified gender identity as a means of sex classification.
The Sixth Circuit could have applied the United States Supreme Court's definition of sex discrimination in Bostock v. Clayton County to include discrimination on the basis of transgender status. By declining to do so, the Sixth Circuit overlooked the closest Supreme Court guidance on the scope of what it means to discriminate on the basis of sex. And by distinguishing the definition of sex under the Equal Protection Clause from its definition under Title VII of the Civil Rights Act of 1964, the Sixth Circuit hinges its position on the illogical conclusion that discrimination on the basis of sex can encompass different actions under laws that have similar goals and similar reaches. True, the Equal Protection Clause and the Civil Rights Act of 1964 are distinct bodies of law, but the Supreme Court has treated the two as coextensive under certain circumstances. Moreover, to define sex differently under laws with similar goals is bad policy. Furthermore, the Sixth Circuit ignored relevant case law from other circuits that have adopted this analysis under the guidance of the Supreme Court in Bostock.
This Note provides a closer examination of the Sixth Circuit's decision to exclude transgender status within the scope of discrimination on the basis of sex. Part II explains relevant statues and case law. Part III analyzes the Sixth Circuit's application of these laws to the noted case. Part IV details the flaws in the Sixth Circuit's notably narrow interpretation of the Equal Protection Clause and its exclusion of gender identity from the definition of sex. Part V briefly concludes.
About the Author
Cassandra Fernandez de Aenlle. J.D. Candidate 2026, Tulane University Law School; B.S. 2019, The University of California, Davis.
Citation
99 Tul. L. Rev. 897