After Utah Supreme Court ruling, lawmakers must now decide how to define sex on birth certificates

Sex and gender identity are different, despite being used interchangeably, says Rep. Merrill Nelson.

Now that the Utah Supreme Court has ruled that transgender Utahns can list their gender identity on state records, state lawmakers need to decide how they want to move forward.

Legislators essentially have three options, according to Rep. Merrill Nelson, R-Grantsville. The easiest approach, he said, would be for lawmakers to do nothing, and let the Supreme Court’s May ruling stand.

Another option, he said, is to revisit state law and clearly define what sex means, particularly when it comes to birth certificates. That “fixed definition” would carry over to other government documents, such as driver licenses, according to Nelson.

Or, legislators could take a “hybrid” approach, and create a definition for sex only on birth certificates, Nelson said, but allow for gender identity to be used on driver licenses, in school records and other government documents.

“We would put that responsibility back on the individual,” Nelson said, “and say, OK, the birth certificate is something that is set. It’s a historical record that declares your sex, male, female or indeterminate, upon birth. ... You’re free to decide and declare what your gender identity is later in life.”

No decision was made Wednesday at the Health and Human Services interim committee meeting where Nelson spoke, but he said legislators will open a committee bill file to explore the issue. The representative also encouraged the public to submit perspectives and ideas for other options.

At the heart of the issue is a state statute that the Legislature passed in the 1970s, which allows people to petition a court to have their name and sex changed on their birth certificate. In the years since, some districts have allowed these sex change petitions, while others have not, according to Nelson.

Meanwhile, the words sex and gender “typically have been used synonymously, but they’ve come recently to mean different things to different people in different settings,” Nelson said, leaving ambiguity in the law.

Nelson said he and Sen. Todd Weiler, R-Woods Cross, have each previously proposed bills to try to rectify the situation, but those were met with pushback and were ultimately dropped pending a ruling from the Utah Supreme Court on the topic.

The case stemmed from petitions filed by Sean Childers-Gray, a transgender man, and Angie Rice, a transgender woman, to change their names and sex on their birth certificates. The district court denied their requests, and Childers-Gray and Rice appealed, with the Supreme Court eventually ruling in their favor.

(Francisco Kjolseth | The Salt Lake Tribune) Two transgender Utahns, who had been denied a legal sex designation by a state judge, successfully challenged the ruling by asking the Utah Supreme Court to overturn the decision. Angie Rice and Sean Childers-Gray, pictured on Friday, June 30, 2017.

To help lower courts decide when to deny or grant these petitions, the Supreme Court created a standard, according to Chris Williams, of the Office of Legislative Research and General Counsel.

“Going forward, sex change petitions are going to be granted when the petition is not sought for a wrongful or fraudulent purpose,” Williams said, and when the petition “is supported by objective evidence,” such as “evidence of clinical care or treatment for gender transitioning.”

The Supreme Court voted 4-1 in its decision, and one of the main arguments of the dissent, Williams said, was that “when the original statute was enacted in 1975, the Legislature didn’t intend it to mean gender identity, but biological sex only.”

Ultimately, the Legislature can decide what to do about the statute today. Nelson said he brought up the issue Wednesday to get a sense of what his peers want to do.

“I am not anxious to run a bill,” he said. “It’s a very delicate issue, a very sensitive issue, a controversial issue. And anyone who undertakes this, be prepared for a lot of arrows.”

There are basic questions to address, Nelson said, starting with, “Do we need birth certificates? If so, what should be on a birth certificate?” And, “do we need a government document to declare sex” or “gender identity”?

To begin answering those questions, Nelson sought advice from five organizations and departments. The Utah Department of Health said it already collected information about a child’s sex, without it having to be included on a birth certificate.

The Utah Department of Public Safety Driver License Division responded that federal mandates require some designation of sex or gender, but either could potentially be used. And the Utah State Board of Education said it typically relies on birth certificates for sex and gender information, but doesn’t need to. Parents could provide that information when registering their child.

Transgender Education Advocates of Utah and Equality Utah essentially said they were comfortable with Utah law as it is, according to Nelson, but using gender identity provides the best, most consistent option.

(Francisco Kjolseth | The Salt Lake Tribune) Troy Williams, executive director of Equality Utah, holds a press conference at the Utah Capitol on Wednesday, Jan. 22, 2020, to recognize Utah becoming the 19th state in the nation to enact a ban on conversion therapy for minors.

When asked by a colleague Wednesday for his personal opinion on what the Legislature should do, Nelson said, “I disagree with the outcome of the case. I don’t think it’s sound public policy to equate biological sex with gender identity. I think they are two different things.”

The Supreme Court’s ruling “introduces some quicksand into our definitions,” and Nelson said he wants to “reestablish bedrock on what sex means and what gender identity means.”

“I don’t think [transgender Utahns] should have to go into a court to declare their gender identity,” he said. “I think they should be free to declare it anytime, any place, and be respected in that gender identity.”

“But as far as a birth certificate, that’s a different document, and sex [is] different from gender identity,” Nelson said.