Battle brewing over birth certificate gender neutral option in Oklahoma

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OKLAHOMA CITY (KFOR) – A battle is brewing over birth certificates in Oklahoma.

State leaders say they plan to get involved following a settlement to a federal lawsuit involving the Oklahoma State Department of Health.

It all began in December of 2019 when Kit Vivien Lorelied applied to make changes to their Oklahoma birth certificate. The changes they requested were to their name and sex. Lorelied is non-binary and uses the pronouns they/them/their.

In a letter to Lorelied, the Oklahoma State Department of Health stated that they could change their name but could not amend sex to non-binary.

“‘Non-binary’ is not an option in Oklahoma for birth records. If you choose to amend your birth record to reflect male, the order will need to be modified to reflect that and then we will need a certified copy of that order,” the letter from the OSDH read.

After the change on the birth certificate was denied, Lorelied filed a lawsuit against several members of the Oklahoma State Department of Health in August of 2020.

“Accurate identification on essential documents is critical to an individual’s ability to live their life to the fullest. Sectors in all major avenues of life, education, housing, medicine/healthcare, government, education and employment, require documentation reflecting one’s true identity. A birth certificate is an essential identification document often [used] for various purposes, including acquisition of other essential documents,” the lawsuit states. “Other individuals born within Oklahoma have access to accurate birth certificates, which match their gender identity; however, nonbinary individuals, alone, are barred from obtaining accurate birth certificates.”

Attorneys for Lorelied state that denying the change violates the United States Constitution, adding that there was no real reason the government should deny such a change.

“Federal and multi-state jurisprudence show there is no rational government justification to rely upon a binary sex policy in the issuance of amended birth certificates, which would support Oklahoma’s refusal to provide nonbinary individuals, such as Lorelied, with a birth certificate matching their gender identity,” the lawsuit states.

The lawsuit argued that by refusing to recognize nonbinary individuals, the state of Oklahoma is depriving them from equal treatment.

“Categorically depriving nonbinary persons from a birth certificate matching their gender identity, simply because Oklahoma does not recognize such as a designation, harms their health and well-being, by impeding nonbinary individuals’ ability to live a life consistent with how they see themselves.

In much the same way that a marriage certificate acknowledges the government’s recognitions of an individuals’ relationship, a birth certificate acknowledges the government’s recognition of an individual’s gender. Blanket refusal to provide nonbinary individuals with a birth certificate recognizing their identity is akin to governmental refusal to acknowledge the nonbinary community’s identity as a whole, depriving an entire group of people from the equal dignity that cisgender, even now transgender, people enjoy simply because those communities were born a certain way.”

Case 5:20-cv-00819-F

The lawsuit argued that birth certificates are used for job applications, obtaining other identification documents, and obtaining education records. It also argued that more than a dozen other states offer nonbinary as an option on birth certificates.

“We got a reply from the attorney general and with all of the arguments they were going to make, and we thought it was going to be even longer, but then I was super proud of my home state and the attorney general who said, ‘no, this is not the way we should be doing things. We need to look towards the future,'” said Lorelied.

After the lawsuit was filed, the Oklahoma State Department of Health agreed to settle the federal suit and change its practices.

Now, Oklahomans can change the sex designation on their birth certificate if they obtain a court order from an Oklahoma court. A certified copy of the court order then must be given to the Oklahoma Office of Vital Records before the change is made, according to Nondoc.

While many people believed that was the end of the fight, it seems many Oklahoma politicians are not happy about the settlement.

“I believe that people are created by God to be male or female. Period. There is no such thing as non-binary sex and I wholeheartedly condemn the purported OSDH court settlement that was entered into by rogue activists who acted without receiving proper approval or oversight…I will be taking whatever action necessary to protect Oklahoma values and our way of life,” Gov. Kevin Stitt said in a statement on Thursday.

“Unelected employees in the executive branch of government have no authority to make decisions of this magnitude. The vast majority of elected House members expect the governor, as the elected leader of the executive branch, to immediately take executive action to follow through on his pledge to undo this. This executive branch agency acted outside its scope of authority, and now the governor, as the leader of that branch of government, must correct it immediately through executive order,” House Speaker Charles McCall said on Thursday.

“The authority to institute policy changes of this magnitude rightly belongs within the legislative branch, the branch of government closest to the people. Executive branch agencies should not attempt to legislate or make substantive policy changes like this through rulemaking or court settlement. This is an egregious example of executive overreach that should be corrected as soon as possible,” said Oklahoma Senate President Pro Tempore Greg Treat.

Earlier this week, Sen. Micheal Bergstrom filed State Bill 1100, which would restrict birth certificate gender options to male and female in Oklahoma.

“I was assured by the State Department of Health a couple months ago that they had no intention of adding another sex option to birth certificates, but they recently approved a non-binary option,” Bergstrom said. “We’re at an odd time in history where people are seemingly forgetting science and biology and casting common sense out the window. When babies are born, they are either born male or female based on their chromosomes and genitals. Allowing anything else to be listed on a birth certificate is ludicrous, and it’s time we clarify this in our statutes.”

Commissioner of Health Dr. Lance Frye released the following statement Thursday regarding the legal settlement over birth certificate designations in Oklahoma:

“A legal settlement regarding birth certificate designations was reached in May by the prior attorney general’s office. The Oklahoma State Department of Health will work with the Governor and Attorney General’s office for input and counsel on next steps.  Our responsibility is to maintain vital statistics, and we will continue to do so in accordance with the laws of Oklahoma. Should a challenge to the previous agreement be made, we will proceed accordingly.”

Nicole McAfee, executive director of the LGBTQ political advocacy organization, Freedom Oklahoma, told KFOR that despite this backlash, they will continue to fight for the rights for all.

“We think that so often it is drafted or promised without ever sort of talking to the community members who are most directly affected by it,” said McAfee. “And while we always hope that more information will change peoples minds, we’re also prepared to continue to do the work and engage in the fights if it doesn’t.”

Copyright 2021 Nexstar Media Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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