NewsLocal NewsMichigan


AG Nessel says sex reassignment surgery requirement for birth certificate change is unconstitutional

AG Dana Nessel
Posted at 1:24 PM, Jun 30, 2021
and last updated 2021-06-30 13:24:23-04

LANSING, Mich. — Michigan Attorney General Dana Nessel on Wednesday declared unconstitutional a state law requiring “sex-reassignment surgery” to change the sex designation on a birth certificate.

Her opinion says the statute violates an individual’s equal protection rights and may also violate an individual’s due process rights under the U.S. and Michigan constitutions, according to a news release.

Earlier this year, MDHHS Director Elizabeth Hertel made a formal request for an attorney general opinion about “whether MCL 333.2831(c) violates the constitutional rights of Michigan-born persons who seek to amend their birth certificate to alter their sex designation assigned at birth to reflect their present gender identity.”

The establishes the only method by which Michigan-born individuals may change the sex designation on their birth certificates by requiring:

  • A written “request that a new certificate be established to show a sex designation other than that designated at birth” and
  • And affidavit of a physician certifying that sex-reassignment surgery has been performed.

If the requirement isn’t met, the law requires MDHHS to deny the application to amend the birth certificate.

Nessel’s opinion states that birth certificates aren’t always biologically driven or static.

“For example, when a child is born to a wedded couple, each spouse is listed as a parent on the birth certificate, regardless of whether they conceived the child,” the opinion said. “And if a child is adopted later in life, the birth certificate may be changed to reflect the new adoptive parents. The fact that the state readily accounts for and acknowledges such biological falsity – sometimes even from birth – cuts against the importance of any state interest in maintaining the accuracy of vital records in regard to the biology of the child.”

“The law violates Michiganders’ most basic and fundamental protections under the Constitution,” Nessel said. “As written, it is a tool of intolerance that treats one group of people different from the rest of us by requiring thousands of residents to undergo expensive and invasive medical procedures in order to amend their birth certificates to reflect their true identity.”

Jurisdictions that allow for a lesser form of clinical intervention include Connecticut, the District of Columbia, Hawaii, Illinois, Iowa, Maryland and Massachusetts.

They accept surgical, hormonal or other treatment clinically appropriate for a gender transition.

The U.S. Department of State only requires that the individual has received “appropriate clinical treatment for transition” to change the sex marker on their individual passport and gives physicians discretion to determine what clinical treatment is appropriate for each individual.

Other states, including California, Colorado, New Jersey and New Mexico, don’t mandate any form of medical or other clinical intervention, requiring only an affidavit from the individual attesting that they identify as a different gender.

“Removing this undue burden on individuals seeking to change their sex designation assigned at birth to reflect their true gender identity on their birth certificates is the right thing to do,” Hertel said. “Consistent with the opinion, applicants will no longer need to undergo sex reassignment surgery or to provide proof that surgery has been performed. MDHHS is already working on a process to assist individuals in making these changes.”