Michigan Attorney General Dana Nessel has determined that a state law related to gender identity and state identification is unconstitutional.
Nessel’s opinion came down in response to a request made by Michigan Department of Health and Human Services Director Elizabeth Hertel for an Attorney General Opinion on Michigan Compiled Law 333.2831(c). The law established that only individuals who have undergone gender reassignment surgery could have their gender changed on their state IDs.
In addition to finding the law unconstitutional, Nessel determined that it violates an individual’s equal protection rights and may also violate an individual’s due process rights under both U.S. and Michigan constitutions.
“The law violates Michiganders’ most basic and fundamental protections,” Nessel wrote. “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.”
“That requirement creates a discriminatory double standard when the listed parent information on a birth certificate is not always biologically accurate,” Nessel continued. “If that aspect of the certificate can reflect who will love and care for the child, so should the listed sex be a true reflection of how the person identifies.”
Several states, including Connecticut, Hawaii, Illinois, Iowa, Maryland and Massachusetts, allow for a birth certificate sex designation change if an individual can provide proof of surgical, hormonal or other treatment clinically appropriate for a gender transition.
However, the U.S. Department of State requires only that the individual has received “appropriate clinical treatment for transition” to change the sex marker on their passport and gives physicians the discretion to determine what clinical treatment is “appropriate” for each individual.
Other states, including California, Colorado, New Jersey and New Mexico, do not require any form of medical treatment to be performed. Instead, the states require 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,” said Hertel.
“Consistent with the opinion, applicants will no longer need to undergo sex reassignment surgery or to provide proof that surgery has been performed,” she added. “MDHHS is already working on a process to assist individuals in making these changes.”