Today, the American Civil Liberties Union (ACLU), the American Civil Liberties Union of West Virginia (ACLU-WV), and the Harvard Law School LGBTQ+ Advocacy Clinic filed a federal lawsuit asking a court to declare West Virginia’s birth certificate policies relating to transgender people unconstitutional.

Last year, the West Virginia Supreme Court of Appeals ruled circuit judges could no longer issue court orders telling the state Department of Health and Human Resources (DHHR) to correct gender markers on birth certificates for transgender West Virginians. This ruling has led to DHHR unfairly refusing to change gender markers for transgender West Virginians, ACLU staff attorney Taylor Brown said. 

“This is simply a case about equal access to an important identity document,” Brown said. “Transgender West Virginians, like every other West Virginian, need identity documents that reflect who they are and that they can safely use to navigate through life.”

Xavier Hersom, one of two plaintiffs in the case, applied for and was denied a gender marker change on his birth certificate. He said DHHR’s policy has created yet another layer of difficulty for him as a transgender person living in West Virginia. 

“This was devastating to me because the process to change my name and gender marker to reflect who I am has taken me four years so far,” Hersom said. “Many forms of discrimination against LGBTQ+ people are still permitted under West Virginia state law. If a transgender person’s documentation does not reflect their gender identity, they are at risk of experiencing that discrimination.”

“This court case is not just about me, it is about all transgender West Virginians who want the same rights as everyone else,” he added. “We need to focus on how we can make West Virginia a better state now and for future generations.”

“We’ve said all along that judges never needed to issue these court orders in the first place because the statute gives clear authority to DHHR to make these needed changes on its own when requested,” ACLU-WV Legal Director Loree Stark said. “But because of confusion created by the West Virginia Supreme Court of Appeals’ ruling, DHHR is now unlawfully refusing requests for gender marker changes.”

The policy violates transgender West Virginians’ free speech, due process and equal protection rights under the law, Stark said.

“West Virginia is one of the last remaining states in the nation where transgender Americans are unable to change the gender markers on their birth certificates,” Harvard Law School LGBTQ+ Advocacy Clinic Director Alexander Chen said. “Transgender West Virginians have a constitutional right to government-issued identity documents that accurately describe their gender and do not forcibly disclose their transgender status.”