U.S. District Court Southern District of Ohio (Columbus) CIVIL DOCKET FOR CASE #: 2:18-cv-00272-MHW-CMV

Ray et al v. Director, Ohio Department of Health et al Assigned to: Judge Michael H. Watson Referred to: Magistrate Judge Chelsey M. Vascura Cause: 42:1983 Civil Rights Act

Date Filed: 03/29/2018 Date Terminated: 12/16/2020 Jury Demand: Defendant Nature of Suit: 950 Constitutional State Statute Jurisdiction: Federal Question

Plaintiff Stacie Ray

represented by Freda J Levenson ACLU of Ohio Foundation 4506 Chester Ave. Cleveland, OH 44103 614-586-1972 Fax: 614-586-1974 Email: flevenson@acluohio.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

David J. Carey Thompson Hine LLP 41 S. High St., Ste. 1700 Columbus, OH 43215 (614) 469-3299 Fax: (614) 469-3361 Email: david.carey@thompsonhine.com (Inactive) ATTORNEY TO BE NOTICED

Elizabeth Bonham ACLU of Ohio Foundation 4506 Chester Ave. Cleveland, OH 44103 614-586-1972 Fax: 614-586-1974 Email: ebonham@acluohio.org ATTORNEY TO BE NOTICED

Gabriel Arkles American Civil Liberties Union 125 Broad Street 18th Floor

New York, NY 10004 (212) 549-2659 Fax: (212) 549-2650 Email: garkles@aclu.org TERMINATED: 11/13/2020 PRO HAC VICE
Jennifer S Roach 127 Public Square 3900 Key Center Cleveland, OH 44114 216 566 5500 Fax: 216 566 5800 Email: jennifer.roach@thompsonhine.com ATTORNEY TO BE NOTICED
John Knight American Civil Liberties Union 150 N. Michigan Suite 600 Chicago, IL 60601 (312) 210-9740 ext. 335 Fax: (312) 288-5225 Email: jknight@aclu-il.org PRO HAC VICE ATTORNEY TO BE NOTICED
Kara N. Ingelhart Lambda Legal Defense and Education Fund, Inc. 65 E. Wacker Place Suite 2000 Chicago, IL 60601 (312) 663-4413 Fax: (312) 663-4307 Email: kingelhart@lambdalegal.org PRO HAC VICE ATTORNEY TO BE NOTICED
Malita Picasso American Civil Liberties Union 125 Broad Street 18th Floor New York, NY 10004 (212) 549-2561 Fax: (212) 549-2650

Plaintiff Basil Argento

Email: mpicasso@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C. Renn Lambda Legal Defense and Education Fund, Inc. 4221 Wilshire Boulevard Suite 280 Los Angeles, CA 90010-3512 (213) 382-7600 Fax: (213) 351-6050 Email: prenn@lambdalegal.org PRO HAC VICE ATTORNEY TO BE NOTICED
Susan Jane Becker 647 Brownstone Circle Avon Lake, OH 44012 440-864-0715 Email: sbecker@acluohio.org ATTORNEY TO BE NOTICED
represented by Freda J Levenson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David J. Carey (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Bonham (See above for address) ATTORNEY TO BE NOTICED
Gabriel Arkles (See above for address) TERMINATED: 11/13/2020 PRO HAC VICE
Jennifer S Roach (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jane Doe

John Knight (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kara N. Ingelhart (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Malita Picasso (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C. Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Susan Jane Becker (See above for address) ATTORNEY TO BE NOTICED
represented by Freda J Levenson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David J. Carey (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Bonham (See above for address) ATTORNEY TO BE NOTICED
Gabriel Arkles (See above for address) TERMINATED: 11/13/2020 PRO HAC VICE
Jennifer S Roach (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Ashley Breda

John Knight (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kara N. Ingelhart (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Malita Picasso (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C. Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Susan Jane Becker (See above for address) ATTORNEY TO BE NOTICED
represented by Freda J Levenson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David J. Carey (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Bonham (See above for address) ATTORNEY TO BE NOTICED
Gabriel Arkles (See above for address) TERMINATED: 11/13/2020 PRO HAC VICE
Jennifer S Roach (See above for address)

ATTORNEY TO BE NOTICED
John Knight (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kara N. Ingelhart (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Malita Picasso (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter C. Renn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Susan Jane Becker (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Director, Ohio Department of Health TERMINATED: 07/02/2019

represented by Jason J. Blake Calfee Halter & Griswold LLP 1200 Huntington Center 41 South High Street Columbus, OH 43215 (614) 621-1500 Fax: (614) 621-0010 Email: jblake@calfee.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Albert J Lucas Calfee Halter & Griswold 1200 Huntington Center 41 South High Street Columbus, OH 43215-4243 614-621-7002

Fax: 614-621-0010 Email: alucas@calfee.com ATTORNEY TO BE NOTICED

Henry G. Appel Ohio Attorney General Health and Human Services 30 E Broad Street 26th Floor Columbus, OH 43215-3428 614-466-8600 Fax: 866-441-4738 Email: henry.appel@ohioattorneygeneral.gov TERMINATED: 06/18/2018

Defendant Chief, Office of Vital Statistics

Kimberly Moses Calfee Halter & Griswold 1400 McDonald Investment Center 800 Superior Avenue Cleveland, OH 44114-2688 216-622-8200 Email: kmoses@calfee.com TERMINATED: 02/27/2019
represented by Jason J. Blake (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Albert J Lucas (See above for address) ATTORNEY TO BE NOTICED

Henry G. Appel (See above for address) TERMINATED: 06/18/2018

Defendant
State Registrar, Office of Vital Statistics

Kimberly Moses (See above for address) TERMINATED: 02/27/2019
represented by Jason J. Blake (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Albert J Lucas (See above for address) ATTORNEY TO BE NOTICED

Henry G. Appel (See above for address) TERMINATED: 06/18/2018

Defendant
Amy Acton in her official capacity TERMINATED: 12/08/2020

Kimberly Moses (See above for address) TERMINATED: 02/27/2019
represented by Jason J. Blake (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Stephanie McCloud in her official capacity as Director of the Ohio Department of Health

Albert J Lucas (See above for address) ATTORNEY TO BE NOTICED
represented by Jason J. Blake (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Albert J Lucas (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/29/2018
03/29/2018

# Docket Text

COMPLAINT against Lance Himes, Judith Nagy, Karen Sorrell (

1

Filing fee $ 400 paid - receipt number: 0648-6379163), filed by

Stacie Ray, Ashley Breda, Jane Doe, Basil Argento. (Levenson,

Freda) (Entered: 03/29/2018)

2 MOTION for Protective Order and Leave to Proceed Anonymously by Plaintiff Jane Doe. (Attachments: # 1 Proposed Order) (Levenson, Freda) (Entered: 03/29/2018)

03/29/2018 03/29/2018
03/29/2018 03/29/2018 03/29/2018 03/30/2018
04/05/2018 04/05/2018

3 NOTICE by Plaintiffs Basil Argento, Ashley Breda, Jane Doe, Stacie

Ray re 1 Complaint Civil Cover Sheet (Attachments: # 1 Civil Cover Sheet Attachment) (Levenson, Freda) (Entered: 03/29/2018)

MOTION for Leave to Appear Pro Hac Vice (Filing fee of $200

4

paid, receipt number 0648-6379346) of Gabriel Arkles, by Plaintiffs

Basil Argento, Ashley Breda, Jane Doe, Stacie Ray. (Attachments:

# 1 Exhibit Certificate of Good Standing) (Levenson, Freda) Modified text on 3/29/2018 (daf). Modified text on 3/30/2018 (ew). (Entered: 03/29/2018)
5 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $200 paid, receipt number 0648-6379365) of Kara N. Ingelhart by Plaintiffs Basil Argento, Ashley Breda, Jane Doe, Stacie Ray. (Attachments: # 1 Exhibit) (Levenson, Freda) Modified text on 3/30/2018 (ew). (Entered: 03/29/2018)
6 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $200 paid, receipt number 268N9NBJ) of John Knight by Plaintiffs Basil Argento, Ashley Breda, Jane Doe, Stacie Ray. (Attachments: # 1 Exhibit) (Levenson, Freda) Modified text on 3/30/2018 (ew). (Entered: 03/29/2018)
7 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $200 paid, receipt number 0648-6379402) of Peter C. Renn by Plaintiffs Basil Argento, Ashley Breda, Jane Doe, Stacie Ray. (Attachments: # 1 Exhibit) (Levenson, Freda) Modified text on 3/30/2018 (ew). (Entered: 03/29/2018)
8 NOTAION ORDER granting 4 , 5 , 6 , and 7 Motions for Leave to Appear Pro Hac Vice of Gabriel Arkles, Kara N. Ingelhart, John Knight, and Peter C. Renn, conditional upon Counsel registering for electronic filing or seeking leave to be excused from doing so within fourteen (14) days. By Magistrate Judge Chelsey M. Vascura on 3/30/2018. (agm) (Entered: 03/30/2018)
9 ORDER granting Plaintiff's 2 Motion for Protective Order and Leave to Proceed Anonymously. Signed by Magistrate Judge Chelsey M. Vascura on 4/5/2018. (kpt) (Entered: 04/05/2018)
Sealed Access was granted by the Court to permit counsel to file documents containing the full name of Plaintiff Jane Doe under seal pursuant to 9 . (ew) (Entered: 04/06/2018)

04/05/2018 04/06/2018 04/10/2018 05/22/2018 05/23/2018 06/14/2018 06/15/2018 06/15/2018
06/18/2018 06/18/2018 06/27/2018

The Clerk's Office has provided sealed access to counsel to file documents containing the full name of Plaintiff Jane Doe under seal pursuant to 9 . (ew) (Entered: 04/06/2018)
10 NOTICE of Appearance by Henry G. Appel for Defendants Chief, Office of Vital Statistics, Director, Ohio Department of Health, State Registrar, Office of Vital Statistics (Appel, Henry) (Entered: 04/06/2018)
11 WAIVER OF SERVICE Returned Executed. Waiver sent to all defendants on 3/29/2018. Answers due 05/29/2018. (Appel, Henry) Modified text on 4/10/2018 (ew). (Entered: 04/10/2018)
12 NOTICE by Defendants Chief, Office of Vital Statistics, Director, Ohio Department of Health, State Registrar, Office of Vital Statistics Stipulated Extension of Time to Move or Plead (Appel, Henry) (Entered: 05/22/2018)
Set/Reset Deadlines: Chief, Office of Vital Statistics answer due 6/19/2018; Director, Ohio Department of Health answer due 6/19/2018; State Registrar, Office of Vital Statistics answer due 6/19/2018. (er) (Entered: 05/23/2018)
13 NOTICE of Hearing: Preliminary Pretrial Conference set for 7/16/2018 at 1:30 PM before Magistrate Judge Chelsey M. Vascura. (agm) (Entered: 06/14/2018)
14 NOTICE by Defendants Chief, Office of Vital Statistics, Director, Ohio Department of Health, State Registrar, Office of Vital Statistics Notice of Withdrawal and Substitution of Counsel (Lucas, Albert) (Entered: 06/15/2018)
15 Unopposed MOTION for Extension of Time New date requested 7/6/2018. by Defendants Chief, Office of Vital Statistics, Director, Ohio Department of Health, State Registrar, Office of Vital Statistics. (Attachments: # 1 Exhibit A) (Lucas, Albert) (Entered: 06/15/2018)
16 ORDER granting 15 Motion for Extension of Time. Defendants shall have until July 6, 2018, to move or otherwise plead in this matter. Signed by Magistrate Judge Chelsey M. Vascura on 6/18/2018. (daf) (Entered: 06/18/2018)
Set/Reset Answer Deadlines as to All Defendants. (daf) (Entered: 06/18/2018)
17 RE-NOTICE of Hearing: Preliminary Pretrial Conference reset for 7/18/2018 03:00 PM before Magistrate Judge Chelsey M. Vascura. (agm) (Entered: 06/27/2018)

07/06/2018
07/09/2018 07/18/2018 07/19/2018
07/20/2018 07/20/2018 07/27/2018 07/27/2018 08/01/2018

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by

18

Defendants Chief, Office of Vital Statistics, Director, Ohio

Department of Health, State Registrar, Office of Vital Statistics.

(Attachments: # 1 Exhibit 1: Ohio Vital Statistics Birth Occurrence

File, # 2 Exhibit 2: Certification of Birth Abstract) (Blake, Jason)

(Entered: 07/06/2018)

19 RULE 26(f) REPORT by Plaintiffs Basil Argento, Ashley Breda, Jane Doe, Stacie Ray. (Levenson, Freda) (Entered: 07/09/2018)

Minute Entry for proceedings held before Magistrate Judge Chelsey M. Vascura: Initial Pretrial Conference held on 7/18/2018. (agm) (Entered: 07/19/2018)

20 PRELIMINARY PRETRIAL ORDER: This case is referred to the March 2019 SETTLEMENT WEEK. Joinder of Parties due by 8/20/2018. Motions to Amend due by 8/20/2018. Rule 26(a)(1) Disclosures due by 8/20/2018. Primary Expert due by 4/1/2019. Rebuttal Expert due by 5/1/2019. Discovery due by 6/1/2019. Dispositive motions due by 7/15/2019. Settlement Week due by 3/1/2019. Signed by Magistrate Judge Chelsey M. Vascura on 7/19/2018. (daf) (Entered: 07/19/2018)

21 MOTION to Stay Discovery by Defendants Chief, Office of Vital Statistics, Director, Ohio Department of Health, State Registrar, Office of Vital Statistics. (Blake, Jason) (Entered: 07/20/2018)

22 Emergency MOTION to Stay in Interim by Defendants Chief, Office of Vital Statistics, Director, Ohio Department of Health, State Registrar, Office of Vital Statistics. (Attachments: # 1 Text of Proposed Order Proposed Order) (Blake, Jason) (Entered: 07/20/2018)

23 RESPONSE in Opposition re 18 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Plaintiffs Basil Argento, Ashley Breda, Jane Doe, Stacie Ray. (Levenson, Freda) (Entered: 07/27/2018)

24 RESPONSE in Opposition re 22 Emergency MOTION to Stay in Interim filed by Plaintiffs Basil Argento, Ashley Breda, Jane Doe, Stacie Ray. (Levenson, Freda) (Entered: 07/27/2018)

25 REPLY to Response to Motion re 22 Emergency MOTION to Stay in Interim filed by Defendants Chief, Office of Vital Statistics, Director, Ohio Department of Health, State Registrar, Office of Vital Statistics. (Blake, Jason) (Entered: 08/01/2018)

08/02/2018 08/10/2018 08/10/2018
08/16/2018 08/24/2018 08/24/2018

26 ORDER granting 22 Motion to Stay. Discovery in this case, including the initial disclosure deadlines set forth in the Court's Preliminary Pretrial Order, is stayed pending resolution of Defendants' Motion to Stay Discovery. Signed by Magistrate Judge Chelsey M. Vascura on 8/2/2018. (daf) (Entered: 08/02/2018)

27 RESPONSE in Opposition re 21 MOTION to Stay Discovery filed by Plaintiffs Basil Argento, Ashley Breda, Jane Doe, Stacie Ray. (Levenson, Freda) (Entered: 08/10/2018)

28 REPLY to Response to Motion re 18 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Defendants Chief, Office of Vital Statistics, Director, Ohio Department of Health, State Registrar, Office of Vital Statistics. (Attachments: # 1 Exhibit) (Blake, Jason) (Entered: 08/10/2018)

NOTICE of Substitution of Counsel - Jennifer S Roach substituting

29

for David J. Carey as to Plaintiffs Basil Argento, Ashley Breda, Jane

Doe, Stacie Ray. (Roach, Jennifer) (Entered: 08/16/2018)

REPLY to Response to 21 Motion to Stay Discovery filed by

30

Defendants Chief, Office of Vital Statistics, Director, Ohio

Department of Health, State Registrar, Office of Vital Statistics.

(Blake, Jason) Modified text on 8/27/2018 (ew). (Entered:

08/24/2018)

This entry was created by the Clerk's office for case management purposes to use the correct filing event, Reply to Response to

10/10/2018 10/11/2018 10/15/2018 12/06/2018 02/25/2019

Motion, for ECF 30 . (ew) (Entered: 08/27/2018)

OPINION AND ORDER denying 21 Motion to Stay. Signed by

31

Magistrate Judge Chelsey M. Vascura on 10/10/2018. (daf) (Entered:

10/10/2018)

32 NOTICE of Appearance by David J. Carey for Plaintiffs Basil Argento, Ashley Breda, Jane Doe, Stacie Ray (Carey, David) (Entered: 10/11/2018)

33 CERTIFICATE OF SERVICE by Plaintiffs Basil Argento, Ashley Breda, Jane Doe, Stacie Ray re 32 Notice of Appearance (Carey, David) (Entered: 10/15/2018)

34 STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Chelsey M. Vascura on 12/6/18. (sem) (Entered: 12/06/2018)

35 ORDER - Counsel to confer as soon as practicable and inform the Court via email by 3/1/2019 if this case should NOT be set for

02/27/2019 03/26/2019 03/26/2019
07/01/2019 07/01/2019 07/02/2019 07/02/2019 07/26/2019 07/26/2019 08/14/2019 08/15/2019

March 2019 Settlement Week. Signed by Magistrate Judge Chelsey M. Vascura on 2/25/2019. (agm) (Entered: 02/25/2019)

NOTICE by Defendant State Registrar, Office of Vital

36

Statistics Notice of Withdrawal (Moses, Kimberly) (Entered:

02/27/2019)

Minute Entry for proceedings held before Magistrate Judge Chelsey M. Vascura: Telephone Conference held on 3/26/2019. (agm) (Entered: 03/26/2019)

38 NOTATION ORDER EXTENDING CASE SCHEDULE - Primary Expert due by 7/1/2019. Rebuttal Expert due by 7/30/2019. Discovery due by 8/30/2019. Dispositive motions due by 10/14/2019. by Magistrate Judge Chelsey M. Vascura on 3/26/2019. (agm) (Entered: 03/26/2019)

Unopposed MOTION to Substitute Party Director, Ohio Department

39

of Health by Plaintiffs Basil Argento, Ashley Breda, Jane Doe,

Stacie Ray. (Bonham, Elizabeth) (Entered: 07/01/2019)

40 NOTICE by Plaintiffs Basil Argento, Ashley Breda, Jane Doe, Stacie Ray of Supplemental Information (Attachments: # 1 Exhibit Ex. A to Notice) (Bonham, Elizabeth) (Entered: 07/01/2019)

41 NOTATION ORDER granting 39 Motion to Substitute Party. Amy Acton added. By Magistrate Judge Chelsey M. Vascura on 7/2/2019. (agm) (Entered: 07/02/2019)

42 Response re 40 Notice (Other) by Defendants Chief, Office of Vital Statistics, Director, Ohio Department of Health, State Registrar, Office of Vital Statistics. (Blake, Jason) (Entered: 07/02/2019)

Minute Entry for proceedings held before Magistrate Judge Chelsey M. Vascura: Telephone Conference held on 7/26/2019. (agm) (Entered: 07/26/2019)

44 ORDER memorializing the telephonic discovery conference held on July 26,2019. Signed by Magistrate Judge Chelsey M. Vascura on 7/26/2019. (daf) (Entered: 07/26/2019)

45 Joint MOTION for Extension of Time to Complete Discovery New date requested 10/29/2019. by Plaintiffs Basil Argento, Ashley Breda, Jane Doe, Stacie Ray. (Bonham, Elizabeth) (Entered: 08/14/2019)

46 NOTATION ORDER granting 45 Motion for Extension of Time. By Magistrate Judge Chelsey M. Vascura on 8/15/2019. (agm) (Entered: 08/15/2019)

08/15/2019 09/12/2019 09/26/2019 11/12/2019 11/13/2019 11/13/2019 11/15/2019 01/07/2020
01/08/2020
01/09/2020 01/09/2020

Set/Reset Columbus PPTO Deadlines: Discovery due by 10/29/2019. Dispositive motions due by 1/10/2020. (agm) (Entered: 08/15/2019)

47

OPINION and ORDER denying 18 Defendants' Motion to

Dismiss for Failure to State a Claim. Signed by Judge Michael H.

Watson on 9/12/19. (jk) (Entered: 09/12/2019)

48

ANSWER to 1 Complaint with Jury Demand filed by All

Defendants. (Blake, Jason) (Entered: 09/26/2019)

49 Joint MOTION Set Briefing Schedule by Plaintiffs Basil Argento, Ashley Breda, Jane Doe, Stacie Ray. (Attachments: # 1 Text of Proposed Order) (Bonham, Elizabeth) (Entered: 11/12/2019)

50 ORDER granting 49 Motion to Set Briefing Schedule. Signed by Magistrate Judge Chelsey M. Vascura on 11/13/2019. (daf) (Entered: 11/13/2019)

Reset deadlines pursuant to 50 : Cross Motions for Summary Judgment due by 1/16/2020. Responses due by 1/13/2020. Replies due by 2/27/2020. (ew) (Entered: 11/14/2019)

Set/Reset Modified Deadlines: Re: cross motions for summary judgment - Responses due by 2/13/2020 Replies due by 2/27/2020. (jlk) (Entered: 11/15/2019)

51 Joint MOTION to File Document Under Seal and to File Single Copies of Deposition Transcripts by Plaintiffs Basil Argento, Ashley Breda, Jane Doe, Stacie Ray. (Attachments: # 1 Text of Proposed Order Granting Leave to File under Seal) (Bonham, Elizabeth) (Entered: 01/07/2020)

52 Unopposed MOTION Leave to Exceed Page Limitations by Defendants Amy Acton, Chief, Office of Vital Statistics, Director, Ohio Department of Health, State Registrar, Office of Vital Statistics. (Attachments: # 1 Text of Proposed Order) (Blake, Jason) (Entered: 01/08/2020)

53 ORDER granting in part and denying in part 51 Motion to File Document Under Seal and to File Single Copies of Deposition Transcripts. Signed by Magistrate Judge Chelsey M. Vascura on 1/9/2020. (daf) (Entered: 01/09/2020)

54 Unopposed MOTION to Seal by Plaintiffs Basil Argento, Ashley Breda, Jane Doe, Stacie Ray. (Attachments: # 1 Text of Proposed Order) (Bonham, Elizabeth) Modified event on 1/10/2020 (ew). (Entered: 01/09/2020)

01/10/2020 01/10/2020 01/10/2020 01/10/2020 01/10/2020 01/14/2020 01/14/2020 01/14/2020 01/14/2020 01/14/2020 01/16/2020

DEPOSITION of Judith Nagy taken on August 2, 2019 by

55

Defendants Amy Acton, Chief, Office of Vital Statistics, State

Registrar, Office of Vital Statistics. (Blake, Jason) (Entered:

01/10/2020)

56 DEPOSITION of Randi Ettner, Ph.D. taken on September 18, 2019 by Defendants Amy Acton, Chief, Office of Vital Statistics, State Registrar, Office of Vital Statistics. (Blake, Jason) (Entered: 01/10/2020)

DEPOSITION of Quentin Van Meter, M.D. taken on September 27,

57

2019 by Defendants Amy Acton, Chief, Office of Vital Statistics,

State Registrar, Office of Vital Statistics. (Blake, Jason) (Entered:

01/10/2020)

DEPOSITION of Ryan Gorton, M.D. taken on October 8, 2019 by

58

Defendants Amy Acton, Chief, Office of Vital Statistics, State

Registrar, Office of Vital Statistics. (Blake, Jason) (Entered:

01/10/2020)

59 ORDER granting 54 Motion to File Document Under Seal. Signed by Magistrate Judge Chelsey M. Vascura on 1/10/2020. (daf) (Entered: 01/10/2020)

DEPOSITION of Basil Argento taken on August 29, 2019 by

64

Plaintiffs Basil Argento, Ashley Breda, Jane Doe, Stacie Ray.

(Bonham, Elizabeth) (Entered: 01/14/2020)

DEPOSITION of Ashley Breda taken on August 21, 2019 by

65

Plaintiffs Basil Argento, Ashley Breda, Jane Doe, Stacie Ray.

(Bonham, Elizabeth) (Entered: 01/14/2020)

DEPOSITION of Jane Doe taken on September 13, 2019 by

66

Plaintiffs Basil Argento, Ashley Breda, Jane Doe, Stacie Ray.

(Bonham, Elizabeth) (Entered: 01/14/2020)

DEPOSITION of Stacie Ray taken on August 19, 2019 by Plaintiffs

67

Basil Argento, Ashley Breda, Jane Doe, Stacie Ray. (Bonham,

Elizabeth) (Entered: 01/14/2020)

68 NOTATION ORDER granting 52 Motion for Leave to Exceed Page Limitations. By Magistrate Judge Chelsey M. Vascura on 1/14/2020. (agm) (Entered: 01/14/2020)

MOTION for Summary Judgment by Plaintiffs Basil Argento,

69

Ashley Breda, Jane Doe, Stacie Ray. (Attachments: # 1 Exhibit List,

# 2 Exhibit A - Defendants' Response to Interrogatory 3, # 3 Exhibit

B - ODH Deposition Exhibits 5 and 6, # 4 Exhibit C - U Gender

marker changed, # 5 Exhibit D - Gender marker changed to H,

01/16/2020
02/13/2020 02/13/2020 02/27/2020 02/27/2020 06/29/2020 11/13/2020 12/07/2020 12/08/2020

# 6 Exhibit E - Expert Report of Dr. Randi Ettner, # 7 Exhibit F - Expert Report of Dr. Ryan Gorton, # 8 Exhibit G - Defendants' Response to Interrogatory 2) (Bonham, Elizabeth) (Entered: 01/16/2020)

71 REDACTED MOTION for Summary Judgment by Defendants Amy Acton, Chief, Office of Vital Statistics, Director, Ohio Department of Health, State Registrar, Office of Vital Statistics. (Attachments: # 1 Exhibit Nagy Affidavit, # 2 Exhibit Ohio Vital Stat. Birth Occurrence File Layout, # 3 Exhibit Certificate of Birth Abstract) (Lucas, Albert) Modified text on 2/20/2020 (agm). (Entered: 01/16/2020)

RESPONSE in Opposition re 71 MOTION for Summary

72

Judgment filed by Plaintiffs Basil Argento, Ashley Breda, Jane Doe,

Stacie Ray. (Bonham, Elizabeth) (Entered: 02/13/2020)

73 RESPONSE in Opposition re 69 MOTION for Summary Judgment filed by Defendants Amy Acton, Chief, Office of Vital Statistics, Director, Ohio Department of Health, State Registrar, Office of Vital Statistics. (Blake, Jason) (Entered: 02/13/2020)

74 REPLY to Response to Motion re 69 MOTION for Summary Judgment filed by Plaintiffs Basil Argento, Ashley Breda, Jane Doe, Stacie Ray. (Bonham, Elizabeth) (Entered: 02/27/2020)

75 REPLY to Response to Motion re 71 MOTION for Summary Judgment filed by Defendants Amy Acton, Chief, Office of Vital Statistics, Director, Ohio Department of Health, State Registrar, Office of Vital Statistics. (Blake, Jason) (Entered: 02/27/2020)

NOTICE by Plaintiffs Basil Argento, Ashley Breda, Jane Doe, Stacie

76

Ray Notice of Supplemental Authority (Bonham, Elizabeth) (Entered:

06/29/2020)

77 NOTICE by Plaintiffs Basil Argento, Ashley Breda, Jane Doe, Stacie Ray Notice of Withdrawal of Gabriel Arkles as CoCounsel (Levenson, Freda) (Entered: 11/13/2020)

78 Unopposed MOTION to Substitute Party by Defendants Amy Acton, Chief, Office of Vital Statistics, Director, Ohio Department of Health, State Registrar, Office of Vital Statistics. (Blake, Jason) (Entered: 12/07/2020)

79 NOTATION ORDER granting 78 Motion to Substitute Party. Stephanie McCloud added. Amy Acton (in her official capacity)

12/16/2020 12/16/2020 01/07/2021 01/08/2021 01/08/2021

terminated. By Magistrate Judge Chelsey M. Vascura on 12/8/2020. (agm) (Entered: 12/08/2020)

80

OPINION and ORDER granting 69 Plaintiffs' Motion for

Summary Judgment; denying 70 Defendants' Sealed Motion for

Summary Judgment. Signed by Judge Michael H. Watson on

12/16/20. (jk) (Entered: 12/16/2020)

CLERK'S JUDGMENT - Pursuant to the December 16, 2020

81

Opinion and Order, Plaintiffs' Motion for Summary Judgment is

GRANTED; Defendants' Motion for Summary Judgment is

DENIED. (jk) (Entered: 12/16/2020)

82 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $200 paid, receipt number AOHSDC-7963191) of Malita Picasso by Plaintiffs Basil Argento, Ashley Breda, Jane Doe, Stacie Ray. (Attachments: # 1 Declaration of Good Standing) (Levenson, Freda) (Entered: 01/07/2021)

83 NOTATION ORDER granting 82 Motion for Leave to Appear Pro Hac Vice of Malita Picasso as Co-Counsel. Co-Counsel is directed to register for e-filing through PACER unless they have done so previously. By Magistrate Judge Chelsey M. Vascura on 1/8/2021. (ew) (Entered: 01/08/2021)

MOTION for Designation and Removal from ECF of Highly

84

Sensitive Documents by Plaintiffs Basil Argento, Ashley Breda, Jane

01/11/2021 01/27/2021 02/01/2021

Doe, Stacie Ray. (Attachments: # 1 Text of Proposed Order) (Bonham, Elizabeth) (Entered: 01/08/2021)

85

ORDER denying 84 Motion for Designation and Removal from

ECF of Highly Sensitive Documents. Signed by Magistrate Judge

Chelsey M. Vascura on 1/11/2021. (daf) (Entered: 01/11/2021)

86 NOTICE by Plaintiffs Basil Argento, Ashley Breda, Jane Doe, Stacie Ray re 83 Order on Motion for Leave to Appear Pro Hac Vice, Certificate of Good Standing (Levenson, Freda) (Entered: 01/27/2021)

MOTION for Attorney Fees by Plaintiffs Basil Argento, Ashley 87
Breda, Jane Doe, Stacie Ray. (Attachments: # 1 Table of

Exhibits, # 2 Exhibit A - OSBA Report, # 3 Exhibit B -

Levenson Declaration, # 4 Exhibit B1 - Levenson Resume, # 5

Exhibit B2 - Levenson Fees, # 6 Exhibit C - Becker Declaration, # 7 Exhibit C1 - Becker Resume, # 8 Exhibit C2 - Becker Fees, # 9 Exhibit D - Carey Declaration, # 10
Exhibit D1 - Carey Resume, # 11 Exhibit D2 - Carey Fees, # 12 Exhibit E - Bonham Declaration, # 13 Exhibit E1 - Bonham Resume, # 14 Exhibit E2 - Bonham Fees, # 15
Exhibit F - Renn Declaration, # 16 Exhibit F1 - Renn Resume, # 17 Exhibit F2 - Renn Fees, # 18 Exhibit G Ingelheart Declaration, # 19 Exhibit G1 - Ingelheart Resume, # 20 Exhibit G2 - Ingelheart Fees, # 21 Exhibit H - Knight Declaration, # 22 Exhibit H1 - Knight Resume, # 23
Exhibit H2 - Knight Fees, # 24 Exhibit I - Arkles Declaration, # 25 Exhibit I1 - Arkles Resume, # 26 Exhibit I2 - Arkles Fees, # 27 Exhibit J - Picasso Declaration, # 28
Exhibit J1 - Picasso Resume, # 29 Exhibit J2 - Picasso Fees, # 30 Exhibit K - Roach Declaration, # 31 Exhibit K1 - Roach Resume, # 32 Exhibit K2 - Thompson Hine Fees, # 33
Exhibit L - Sabo Declaration, # 34 Exhibit L1 - Sabo Fees, # 35 Exhibit M - Keeshin Declaration, # 36 Exhibit M1 Keeshin Resume, # 37 Exhibit M2 - Keeshin Fees, # 38
Exhibit Sabo Second Declaration, # 39 Exhibit N1 ACLU Costs, # 40 Exhibit N2 - Lambda Costs, # 41
Exhibit N3 - ACLU Ohio Costs, # 42 Exhibit N4 - Costs to Recover) (Bonham, Elizabeth) (Entered: 02/01/2021)

02/22/2021
02/23/2021 02/23/2021 03/24/2021

88 Unopposed MOTION for Extension of Time to File Response/Reply New date requested 3/24/2021. by Defendants Amy Acton, Chief, Office of Vital Statistics, Director, Ohio Department of Health, Stephanie McCloud, State Registrar, Office of Vital Statistics. (Attachments: # 1 Text of Proposed Order) (Blake, Jason) (Entered: 02/22/2021)
NOTATION ORDER granting 88 Motion for Extension of Time to File Response/Reply by Judge Michael H. Watson on 2/23/2021. (jk) (Entered: 02/23/2021)
Reset deadlines pursuant to the 2/23/2021 notation order. (ew) (Entered: 02/23/2021)

89

Joint MOTION to Stay re 87 MOTION for Attorney Fees to

stay fees briefing and order status report by Plaintiffs Basil Argento,

03/26/2021 90

Ashley Breda, Jane Doe, Stacie Ray. (Attachments: # 1 Text of Proposed Order Proposed Order) (Bonham, Elizabeth) (Entered: 03/24/2021)
ORDER granting 89 Motion to Stay Briefing re 87

03/26/2021
04/07/2021 91
04/08/2021 92
04/22/2021 93

MOTION for Attorney Fees. The parties are ORDERED to file a Joint Status Report by 4/7/2021 detailing the status of discussions regarding the motion and Defendants' compliance with the Court's December 16, 2020 order. Signed by Magistrate Judge Chelsey M. Vascura on 3/26/2021. (kk2) (Entered: 03/26/2021)
Set/Reset Deadlines: Status Report due by 4/7/2021 (kk2) (Entered: 03/26/2021)
STATUS REPORT Joint Status Report by Plaintiffs Basil Argento, Ashley Breda, Jane Doe, Stacie Ray. (Bonham, Elizabeth) (Entered: 04/07/2021)
ORDER: The parties are ORDERED to file a Joint Status Report by 4/22/2021, detailing the status of their discussion regarding the fee motion and Defendants' compliance with the Court's December 16, 2020 Order. Signed by Magistrate Judge Chelsey M. Vascura on 4/8/2021. (kk2) (Entered: 04/08/2021)
STATUS REPORT Joint Status Report by Plaintiffs Basil Argento, Ashley Breda, Jane Doe, Stacie Ray. (Attachments: # 1 Text of Proposed Order) (Bonham, Elizabeth) (Entered: 04/22/2021)

04/26/2021
05/13/2021
05/19/2021
05/19/2021
05/26/2021 94
05/27/2021
06/09/2021 95
06/23/2021 96
07/16/2021

NOTICE of Hearing: Telephone Status Conference set for 5/18/2021 at 11:00 a.m. before Judge Michael H. Watson. (jk) (Entered: 04/26/2021)
NOTICE of Hearing: Telephone Status Conference reset for 5/19/2021 at 3:00 p.m. before Judge Michael H. Watson. (jk) (Entered: 05/13/2021)
Minute Entry for proceedings held before Judge Michael H. Watson: Telephone Conference held on 5/19/2021. (Court Reporter: Lahana DuFour) (jk) (Entered: 05/19/2021)
NOTICE of Hearing: Telephone Status Conference set for 5/25/2021 at 4:00 p.m. before Judge Michael H. Watson. (jk) (Entered: 05/19/2021)
NOTICE by Plaintiffs Basil Argento, Ashley Breda, Jane Doe, Stacie Ray Withdrawal as Counsel of Elizabeth Bonham (Bonham, Elizabeth) (Entered: 05/26/2021)
NOTICE of Hearing - Telephone Status Conference set for 6/8/2021 at 3:30 p.m. before Judge Michael H. Watson. (jk) (Entered: 05/27/2021)
ORDER signed by Judge Michael H. Watson on 6/9/2021. (jk) (Entered: 06/09/2021)
CONSENT JUDGMENT. Signed by Judge Michael H. Watson on 6/23/2021. (er) (Entered: 06/23/2021)
ORDER - Status Report due by 7/26/21. Signed by Judge Michael H. Watson on 7/16/2021. (jk) (Entered: 07/16/2021)

PACER Service Center Transaction Receipt

PACER Login:
Description:
Billable Pages:

07/21/2021 10:39:20

CRClearinghouse Client Code: Duffield

Docket Report

Search Criteria:

2:18-cv-00272MHW-CMV

14

Cost:

1.40

 
 Case: 2:18-cv-00272-MHW-CMV Doc #: 1 Filed: 03/29/18 Page: 1 of 29 PAGEID #: 1

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

STACIE RAY, BASIL ARGENTO,

)

JANE DOE, and ASHLEY BREDA, )

)

)

Plaintiffs,

)

)

v.

)

)

LANCE HIMES, in his official capacity )

as Director of the Ohio Department

)

of Health, KAREN SORRELL, in her )

official capacity as Chief of the Office of )

Vital Statistics, and JUDITH NAGY, in )

her official capacity as State Registrar of )

the Office of Vital Statistics,

)

)

)

Defendants.

)

)

____________________________________)

Civil Action No.:

COMPLAINT

NATURE OF ACTION

1. This action is brought by transgender people who wish to correct their Ohio birth

certificates to accurately reflect their gender identity. They wish to have access to a birth

certificate they can use without being exposed to discrimination and other harm, including a high

risk of violence. Although Stacie Ray, Jane Doe, and Ashley Breda are all women, the Ohio

Department of Health and Office of Vital Statistics incorrectly identifies them as male on their

birth certificates. Although Basil Argento is a man, the Ohio Department of Health and Office of

Vital Statistics incorrectly identifies him as female on his birth certificate.

2. Accurate identity documents are essential to every person’s ability to navigate

through life. Access to employment, education, housing, health care, banking, travel, and

Case: 2:18-cv-00272-MHW-CMV Doc #: 1 Filed: 03/29/18 Page: 2 of 29 PAGEID #: 2
government services often depend on having documentation that accurately reflects a person’s identity. A birth certificate is a basic identity document routinely relied upon for many purposes, including as a prerequisite to obtain other essential identity documents.
3. While the state provides most people born in Ohio with accurate birth certificates—matching their gender identity—the state bars transgender people alone from obtaining accurate birth certificates matching their gender identity. In practical terms, this policy denies transgender people access to birth certificates they can use. Ohio’s refusal to issue such birth certificates erects a barrier to the full recognition, participation, and inclusion of transgender people in society and subjects them to discrimination, privacy invasions, harassment, humiliation, stigma, harm to their health, and even violence.
4. The State of Ohio refuses to correct the gender markers on transgender people’s birth certificates regardless of what steps a person may have taken in order to obtain recognition of their gender identity.
5. Ohio’s categorical bar stands in sharp contrast to the approach of nearly all other states and the District of Columbia, which have established processes by which transgender people can correct the gender marker on their birth certificate. Indeed, this total bar is also inconsistent with Ohio’s own practice of permitting transgender people to correct the gender marker on their driver’s license or state identification card to match their gender identity.
6. Ohio’s practice, which each Defendant enforces, violates federal constitutional guarantees, including the rights to equal protection, due process, and freedom from compelled speech. As confirmed by the practices adopted by other states, as well as Ohio’s own practice in changing the gender marker on state-issued driver’s licenses and state identification cards, there
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is no government justification to support Ohio’s refusal to provide transgender people with accurate birth certificates matching their gender identity.
JURISDICTION AND VENUE 7. Subject matter jurisdiction exists under 28 U.S.C. §§ 1331 and 1343 because this action seeks to redress the deprivation, under color of state law, of rights secured by the United States Constitution through 42 U.S.C. § 1983. 8. Venue is proper in the Southern District of Ohio under 28 U.S.C. § 1391(b)(1) and (2) because each of the Defendants resides in the district and because a substantial part of the events or omissions giving rise to the claims occurred in the district. 9. This Court has the authority to enter a declaratory judgment and to provide preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of Civil Procedure and 28 U.S.C. §§ 2201 and 2202. 10. This Court has personal jurisdiction over Defendants because they are domiciled in Ohio and because their refusal to provide Plaintiffs with accurate birth certificates matching their gender identity occurred within Ohio.
PARTIES Plaintiffs
11. Plaintiff Stacie Ray (“Ms. Ray”) is a woman who was born in Ohio and who currently resides in Columbus, Ohio. Ms. Ray is transgender and wishes to correct her Ohio birth certificate, which currently indicates that her sex is male, to accurately reflect her sex as female.
12. Plaintiff Basil Argento (“Mr. Argento”) is a man who was born in Ohio and who currently resides in Columbus, Ohio. Mr. Argento is transgender and wishes to correct his Ohio
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birth certificate, which currently indicates that his sex is female, to accurately reflect his sex as male.
13. Plaintiff Jane Doe (“Dr. Doe”) is a woman who was born in Ohio and who currently resides in New Mexico. Dr. Doe is transgender and wishes to correct her Ohio birth certificate, which currently indicates that her sex is male, to accurately reflect her sex as female.
14. Plaintiff Ashley Breda (“Ms. Breda”) is a woman who was born in Ohio and who currently resides in Arizona. Ms. Breda is transgender and wishes to correct her Ohio birth certificate, which currently indicates that her sex is male, to accurately reflect her sex as female. Defendants
15. Defendant Lance Himes (“Mr. Himes”) is the Director of the Ohio Department of Health (“ODH”). Mr. Himes supervises the activities of the Department and enforces Ohio’s vital statistics laws. Mr. Himes’s administration and enforcement of the vital statistics laws are actions under color of state law. Mr. Himes is a person within the meaning of 42 U.S.C. § 1983 and has acted under color of state law at all times relevant to this Complaint.
16. Defendant Karen Sorrell (“Ms. Sorrell”) is the Chief of the Office of Vital Statistics within ODH. In this role, Ms. Sorrell is the official custodian of the vital records of the state and oversees the enforcement of Ohio’s vital statistics laws. Ms. Sorrell’s administration and enforcement of the vital statistics laws are actions under color of state law. Ms. Sorrell is a person within the meaning of 42 U.S.C. § 1983 and has acted under color of state law at all times relevant to this Complaint.
17. Defendant Judith Nagy (“Ms. Nagy”) is the State Registrar of the Office of Vital Statistics within ODH. In this role, Ms. Nagy exercises direct authority over the issuance and alteration of Ohio birth certificates. Ms. Nagy’s administration and enforcement of the vital
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statistics laws are actions under color of state law. Ms. Nagy is a person within the meaning of 42 U.S.C. § 1983 and has acted under color of state law at all times relevant to this Complaint.
FACTS Background Information Regarding Transgender People
18. Gender identity is a well-established medical and psychological term that refers to a person’s fundamental, internal sense of their gender. It is a core characteristic of human identity that everyone possesses. Gender identity is innate and typically fixed at an early age.
19. For the majority of people, their gender identity matches their sex assigned at birth. That is not the case, however, for transgender people, whose gender identity does not match their sex assigned at birth.
20. A person’s gender marker on a birth certificate is usually designated at birth based solely on the appearance of external genitalia. However, there are numerous other sex-related characteristics, which can include chromosomes, hormone levels, internal reproductive organs, and gender identity.
21. Where a person’s sex-related characteristics are not in typical alignment with each other, gender identity is the critical determinant of sex.
22. Attempts to change a person’s gender identity to bring it into alignment with the person’s birth-assigned sex are not only unsuccessful but also dangerous to the individual, risking psychological harm and even suicide.
23. Living in a manner consistent with one’s gender identity is critical to the health and well-being of transgender people. The process by which transgender people come to live in a manner consistent with their gender identity, rather than their birth-assigned sex, is known as transition. The refusal to treat a person in a manner consistent with their gender identity is
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harmful to that person’s dignity and wellbeing. 24. The steps that transgender people take to transition vary with each individual’s
specific needs, but these steps generally include one or more of social transition, gender confirmation medical treatment, and/or gender confirmation surgical treatment.
25. Social transition involves shifting one’s presentation and social functioning so that it is consistent with one’s gender identity. For example, for a woman who is transgender, social transition can include changing her first name to one typically used by women, changing her identity documents to indicate a female gender, changing her hairstyle and clothing, and otherwise presenting herself publicly as a woman in all aspects of her life.
26. The discordance between one’s gender identity and birth-assigned sex can be associated with clinically significant distress, which is known as gender dysphoria. Gender dysphoria is a serious medical condition that, if improperly treated, can have serious health consequences. Treatment for gender dysphoria is governed by internationally recognized standards of care.
27. Social transition is a part of necessary medical treatment for many transgender people with gender dysphoria. While social transition is adequate treatment for gender dysphoria for some transgender people, others may need medical or surgical treatments as well.
28. Whether other treatment is medically necessary or even appropriate, however, depends on the needs and health of the individual. A person’s ability to access treatment— especially gender confirmation surgery—may also be limited by financial resources, insurance coverage, provider availability, and other barriers to health care access.
29. The various components associated with transition—social transition and gender confirmation medical or surgical treatment—do not change a person’s gender, but instead bring
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the person’s physical appearance and social presentation into better alignment with their gender. 30. Depriving transgender people of birth certificates that match their gender identity
harms their health and well-being. This deprivation also interferes with medical treatment for gender dysphoria by impeding a transgender person’s ability to live in a manner consistent with that person’s gender identity, and can aggravate symptoms of gender dysphoria. The Need for Accurate Birth Certificates Matching One’s Gender Identity
31. A birth certificate is more than a piece of paper. It reflects government recognition of a person’s gender—just as a marriage certificate reflects government recognition of a person’s relationship. The government’s refusal to provide transgender people with a birth certificate matching their gender identity is a stigmatizing refusal to acknowledge their gender, depriving them of their equal rights and dignity.
32. A birth certificate is an essential government-issued document that each person uses to establish their identity throughout their lifetime. That is why the government routinely makes copies of a birth certificate available to the person named on the birth certificate, rather than merely reserving the document solely for the government’s use.
33. Birth certificates are commonly used in a wide variety of contexts, such as determining eligibility for employment, obtaining other identity documents (including driver’s licenses, state identification cards, social security cards, passports, and other state and federal identification documents), establishing school records, proving age, and enrolling in government programs.
34. All people need access to an accurate birth certificate to establish their identity. Transgender people born in Ohio, unlike non-transgender people born in Ohio, do not have access to one.
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35. Many transgender people are typically perceived by others accurately and consistent with their gender identity. A transgender woman born in Ohio who has a birth certificate designating her as male is burdened with an identity document that conflicts not only with her gender, but also with how others perceive her. A transgender man born in Ohio who has a birth certificate designating him as female is burdened with an identity document that conflicts not only with his gender, but also with how others perceive him.
36. Denying transgender people birth certificates that match their gender identity reveals private information in contexts where this information would otherwise remain undisclosed (e.g., at a new job), regardless of whether a person’s transgender identity may otherwise be known by others (e.g., to friends or family), and regardless of a person’s desire not to disclose that personal information. Transgender people denied accurate birth certificates are deprived of significant control over the circumstances surrounding disclosure of their transgender identity, including when, where, how, and to whom their transgender identity is disclosed.
37. A perceived mismatch between someone’s gender and the information on their birth certificate subjects that person to harm, including an invasion of privacy. Such a mismatch discloses the fact that a person is transgender. This is profoundly personal information in which a transgender person has a reasonable expectation of privacy. Disclosure of that information can seriously jeopardize a person’s safety, and subject the person to a risk of bodily harm.
38. According to the 2015 U.S. Transgender Survey, nearly one in three (over one in three in Ohio) transgender people who showed an identity document with a name or gender that did not match their gender presentation were verbally harassed, denied benefits or services, asked to leave, or assaulted.
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39. More generally, transgender people experience substantial discrimination and harassment in a wide variety of settings, including in employment, public accommodations, health care, and interactions with government employees and officials, including those in law enforcement. Transgender people are also disproportionately targeted for hate crimes. These realities make the involuntary disclosure of a person’s transgender identity particularly harmful and dangerous.
40. A mismatch between the gender information on a person’s birth certificate and the information on the person’s other identify documents subjects that person to harms including interference with the person’s ability to pass background checks and obtain benefits that persons without such a mismatch routinely enjoy. In some circumstances the mismatch constitutes a total impediment to obtaining such benefits. Ohio’s Birth Certificate Policy
41. ODH and the Ohio Office of Vital Statistics exercise responsibility for issuing and correcting Ohio birth certificates. Based on Plaintiffs’ experiences, each of the Defendants enforces a policy and practice that categorically refuses to correct the gender marker on transgender people’s birth certificate to match their gender identity (the “Birth Certificate Policy”).
42. On information and belief, the Birth Certificate Policy has only been reduced to writing in letters ODH and the Office of Vital Statistics have sent to transgender people rejecting their requests that the state correct the gender marker on their birth certificate.
43. On information and belief, during one period of time ODH and the Office of Vital Statistics exercised its authority to correct the gender marker on birth certificates of transgender people pursuant to a court order.
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44. On information and belief, ODH and the Office of Vital Statistics since discontinued this practice and will no longer correct the gender marker on transgender people’s birth certificate for any reason. The decision to discontinue the practice was both arbitrary and irrational, especially given that neither ODH nor the Office of Vital Statistics identified any harm resulting from permitting the corrections.
45. The Birth Certificate Policy stands in sharp contrast to the approach taken by at least forty-six (46) states that permit transgender people to correct the gender marker on their birth certificate to match their gender identity. A forty-seventh (47th) state, Idaho, will implement a process no later than April 6, 2018 to permit transgender people to correct their birth certificate gender marker.
46. Similarly, the U.S. Department of State permits corrections to the gender marker on a person’s passport when a doctor certifies that the person has had appropriate clinical treatment for gender transition. Other federal agencies, including the Social Security Administration, have similar standards for changing a person’s gender marker in their records.
47. Ohio’s categorical bar to changing gender markers on the birth certificates of transgender people is contrary to even its own practice with other critical identification documents. The Ohio Bureau of Motor Vehicles (Ohio BMV) allows transgender people to correct the gender marker on their driver’s license and state identification card to reflect their gender identity. Like the federal government, the Ohio BMV also does not require transgender people to have any particular medical procedure, such as surgery, to do so. That practice is consistent with mainstream medical organizations, which support corrections of gender designations for transgender people, and oppose requiring surgery in order for transgender people to make such corrections on birth certificates.
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Plaintiff Stacie Ray 48. Plaintiff Stacie Ray is a 44-year-old woman who was born in Franklin County,
Ohio and currently resides in Columbus, Ohio. For the last seventeen years, Ms. Ray has worked on and off as a Class A semi-truck driver.
49. Ms. Ray is transgender. She was assigned the sex of male at birth and her birth certificate marks her as male. However, she is female.
50. Since beginning her transition to live openly as female approximately two and one half years ago, Ms. Ray has taken steps to bring her body and her gender expression into conformity with her female gender identity. These steps include clinically appropriate treatment undertaken in consultation with health care professionals. She also changed her name from a traditionally male one to a traditionally female one, and changed her name on her driver’s license and with the Social Security Administration.
51. As a result of the Birth Certificate Policy, however, the gender marker on Ms. Ray’s birth certificate conflicts with her gender identity, which is female. Defendants’ refusal to issue a birth certificate accurately reflecting that Ms. Ray is female is a persistent and stigmatizing reminder that the State of Ohio does not recognize her as a woman. That refusal impedes her ability to function successfully as a woman in all aspects of her life, including any time when she presents her birth certificate to others. Further, presenting an identity document that identifies her as male is not only humiliating but also dangerous, putting her at risk of violence.
52. Ms. Ray is aware of the high incidence of harassment, discrimination, and violence directed at transgender people. In her work as a truck driver, she has been harassed and menaced at truck stops and rest stops. As a result, she must take precautions for her personal
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safety. For example, Ms. Ray uses highway rest stops designed for use by the general population rather than designated truck stops. This is because lighting, security cameras, quick accessibility to the highway, and the presence of police is better at rest stops than truck stops.
53. Possessing a birth certificate that is incongruent with Ms. Ray’s gender identity increases her exposure to harassment, discrimination, and violence. Ms. Ray has experienced first-hand the hostility that transgender people often experience when presenting identification that conflicts with their lived gender.
54. The incorrect gender marker on Ms. Ray’s birth certificate has exposed her to hostility in the workplace. Upon beginning a new job, Ms. Ray and 10 other new employees were required to present documents including their birth certificates. The orientation process took place in a small conference room, with all the new hires present. When her name was called, Ms. Ray walked to a small desk to present her documents to a human resources person. Upon examining her documents, the human resources person asked in a voice loud enough for everyone in the room to hear: “Why doesn’t your gender match?” After this disclosure of Ms. Ray’s transgender identity, many of her coworkers refused to speak to her. A workplace acquaintance explained to Ms. Ray that she had been labeled by her hostile coworkers as “the freak of the company.” Another female coworker told Ms. Ray that if she ever encountered Ms. Ray in the women’s restroom, the woman would “beat [her] ass.” Ms. Ray reported the incident to the human resources department, which informed Ms. Ray that the coworker would be spoken to, but the woman’s demeanor did not change. Due to the continuing shunning and harassment, Ms. Ray left that job two weeks later.
55. At another time, Ms. Ray was employed as a truck driver and sought a higherpaying driving job with better benefits. She sought a Hazardous Materials (hazmat)
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Endorsement for her commercial driver’s license because it was a requirement for the new position. Ms. Ray had to pass a Transportation Security Administration (“TSA”) background check to obtain the hazmat endorsement. At the first appointment for her background check, Ms. Ray presented her corrected driver’s license and her incorrect birth certificate to the receptionist in the TSA waiting room. The receptionist loudly informed Ms. Ray that the mismatch between these two Ohio identity documents prevented TSA from commencing the background check. The receptionist’s statement also revealed Ms. Ray’s transgender identity to two strangers in the waiting area. The staff member then loudly (and incorrectly) advised Ms. Ray that “You need to change your driver’s license back to ‘male,’” before TSA could complete the background check. The experience humiliated Ms. Ray and she left in tears.
56. Ms. Ray drove directly from the TSA facility to the Ohio Board of Health, Office of Vital Statistics, arriving 30 minutes later. Ms. Ray explained what she had just been through to an ODH staff member, and requested a corrected birth certificate. The staff member informed her that ODH would not correct her gender marker, stating, “We will never change it.”
57. Ms. Ray has also been required to present, and has presented, her birth certificate in other contexts, and she will continue to be required to do so. Because people typically perceive Ms. Ray as female, those who see her birth certificate will learn from that document that she is transgender regardless of whether she wishes to share that information with them.
58. Ms. Ray objects to the state’s ideological message that gender is determined solely by the appearance of external genitals at the time of birth.
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Plaintiff Basil Argento 59. Plaintiff Basil Argento is a 42-year-old man who was born in Tuscarawas County,
Ohio and currently resides in Columbus, Ohio. Mr. Argento is self-employed as a website designer and eBay entrepreneur.
60. Mr. Argento is transgender. He was assigned the sex of female at birth and his Ohio birth certificate identifies him as female. However, he is male.
61. Since beginning his transition to live openly as male almost twenty years ago, Mr. Argento has taken steps to bring his body and gender expression into conformity with his male gender identity, including through clinically appropriate treatment undertaken in consultation with health care professionals. He also changed his name from a traditionally female name to a traditionally male one, and changed his name on his driver’s license and with the Social Security Administration.
62. As a result of the Birth Certificate Policy, however, the gender marker on Mr. Argento’s birth certificate conflicts with his gender identity, which is male. Defendants’ refusal to issue a birth certificate accurately identifying Mr. Argento as male is a persistent and stigmatizing reminder that the State of Ohio does not recognize him as a man. That refusal impedes his ability to function successfully as a man in all aspects of his life, including any time he presents his birth certificate to others. Further, presenting an identity document that incorrectly identifies him as female is not only humiliating but also dangerous, putting him at risk of violence.
63. Mr. Argento is aware of the high incidence of harassment, discrimination, and violence directed at transgender people.
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64. Possessing a birth certificate that is incongruent with Mr. Argento’s gender identity increases his exposure to harassment, discrimination, and violence. Mr. Argento has experienced first-hand the hostility that transgender people often experience when presenting identification that conflicts with their lived gender.
65. The incorrect gender marker on Mr. Argento’s birth certificate has also subjected him to inconvenience and expense, and has prevented him from obtaining benefits that he would have received if his gender marker on his birth certificate were correct.
66. Mr. Argento is of direct, unbroken Italian descent. According to Italy’s Jus Sanguinis (“Law of the Blood”), he is eligible for dual citizenship in the United States and Italy, and all of the attendant privileges, including an Italian passport. To obtain dual citizenship, he needed first to apply for an Italian birth certificate. Obtaining an Italian birth certificate under the Law of the Blood requires the applicant to meticulously document, translate, and authenticate his ancestors’ lineage and his own birth information.
67. After painstakingly assembling all these necessary forms, information, and documentation, Mr. Argento made an appointment with the Italian Consulate that has jurisdiction over Ohio, which is in Detroit, Michigan. He then drove there from his home in Columbus to present his portfolio. The staff at the Italian Consulate refused to allow him to submit his portfolio for processing due to the incongruity between the gender on his Ohio birth certificate (female) and the gender on his other identity documents (male) including his Ohio driver’s license. Consular officials claimed to not know how to proceed, and said they needed to contact Rome for guidance.
68. Mr. Argento drove back to Columbus and spent a year exploring various avenues, including consulting with legal counsel, to overcome the barrier to dual citizenship created by
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his Ohio birth certificate. 69. Mr. Argento then made a second trip to the Consulate in Detroit without an
appointment, because consular officials had been ignoring his calls and emails for months. This time, he insisted that officials accept his document portfolio for review. However, they still refused to accept the $339 processing fee that he proffered. Again, he had to return home without completing the application process.
70. A few months later, consular officials told Mr. Argento that Rome had advised them that his birth was to be registered under his birth name and gender—his legal name change would be ignored because the gender of his legal name did not match the gender on his Ohio birth certificate.
71. Even after this guidance from Rome, consular officials refused to believe it was impossible for Mr. Argento to have the gender on his Ohio birth certificate corrected, because the state where the Consulate is located (Michigan) does so, and because transgender people in Italy have been able to correct the gender on their birth certificates since 1982.
72. After another year of exchanging emails, documents, and phone calls with Consulate staff, Mr. Argento returned to Detroit a third time for a scheduled appointment. He finally persuaded the Consulate staff to process his application, using the same documentation he had presented during his first visit.
73. After three inter-state trips and almost three years, Mr. Argento’s birth is now registered in Italy, and he is an Italian citizen. However, because his Ohio birth certificate identifies him as female, Mr. Argento’s Italian birth certificate carries the same incorrect gender designation and also incorrectly identifies Mr. Argento by the female name he was given at birth. This makes it impossible for Mr. Argento to obtain an Italian passport without
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undertaking legal proceedings in Italy. 74. In his continuing efforts to obtain an Italian passport, Mr. Argento was advised by
an Italian lawyer to first obtain a California court order confirming a legal gender change. He flew to California and obtained this on December 7, 2017. Mr. Argento is currently attempting to retain an Italian law firm. The law firm will charge him between 2,000 euros ($2,490.00) and 6,000 euros ($7,471.00) to obtain the name and gender change on his Italian birth record. These additional legal proceedings will also likely require him to travel to Italy. All of this extra time, cost, and inconvenience would have been avoided if his Ohio birth certificate was correct.
75. On December 18, 2017, Mr. Argento wrote to the Ohio Department of Health to inquire if he could correct the gender marker on his birth certificate. That request was denied.
76. Mr. Argento objects to Ohio’ ideological message that gender is determined solely by the appearance of external genitals at the time of birth.
77. Mr. Argento has been required to present, and has presented, his birth certificate in other contexts, and he will continue to be required to do so. Because people typically perceive Mr. Argento as male, those who see his birth certificate will learn that he is transgender regardless of whether he wishes to share that information with them. Plaintiff Jane Doe
78. Plaintiff Jane Doe is a 67-year-old woman who was born in Dayton, Ohio, and who currently resides in New Mexico. Dr. Doe is a physician.
79. Dr. Doe is transgender. She was assigned the male sex at birth. However, she is female.
80. Since beginning her transition to live openly as female around five years ago, Dr. Doe has taken steps to bring her body and her gender expression into conformity with her female
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gender identity, including through clinically appropriate treatment undertaken in consultation with health care professionals. She also changed her name from a traditionally male one to a traditionally female one and changed her name on her driver’s license, passport, and academic and professional certifications and with the Social Security Administration.
81. Dr. Doe has also corrected the gender marker on her driver’s license and passport, and in her social security records.
82. As a result of the Birth Certificate Policy, however, Dr. Doe’s birth certificate fails to reflect her gender, which is female. Defendants’ refusal to issue a birth certificate accurately reflecting that Dr. Doe is female operates as a persistent and stigmatizing reminder that the State of Ohio does not recognize her as a woman. That refusal also impedes her ability to function successfully as the woman that she is in all aspects of her life, including any time she needs to present her birth certificate to others. Further, presenting an identity document that identifies her as male is not only humiliating but also dangerous, putting her at risk of violence.
83. Dr. Doe is aware of the high incidence of harassment, discrimination, and violence directed at transgender people. She has been harassed and discriminated against as a transgender person herself in the past, including verbal harassment in her workplace.
84. Possessing a birth certificate that is incongruent with Dr. Doe’s gender identity increases her exposure to harassment, discrimination, and violence. Dr. Doe has experienced first-hand the hostility that transgender people often experience when presenting identification that conflicts with their lived gender.
85. For example, the incorrect gender marker on Dr. Doe’s birth certificate exposed her to overt hostility when she first visited a social security office to correct the gender marker on her social security records. Upon seeing her birth certificate, a staff person loudly told her
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that the Social Security Administration could not “just change you from male to female based on your say-so.” A waiting room of more than one hundred people overheard the exchange, causing Dr. Doe’s transgender identity to be involuntarily disclosed.
86. Despite Dr. Doe’s protests and citations to the Social Security Administration’s written policy that she had printed and brought with her, the staff person insisted that unless Dr. Doe could produce a birth certificate possessing a female gender marker, they could not correct her social security records.
87. After leaving the Social Security office, Dr. Doe sat in her car in the parking lot and cried for an hour before managing to drive home. She felt humiliated and despairing. The knowledge that the Ohio government would deliberately deprive her of the basic document she needs to validate her identity – possibly for the rest of her life – overwhelmed her. She felt the government had deemed her unworthy of equal treatment and respect as a woman, and her gender dysphoria worsened.
88. Dr. Doe objects to the state’s ideological message that gender is determined solely by the appearance of external genitals at the time of birth.
89. Dr. Doe has also been required to present, and has presented, her birth certificate in other contexts and she will continue to be required to do so. Because people typically perceive Doe as female, those who see her birth certificate will learn from that document that she is transgender regardless of whether she wishes to share that information with them. Plaintiff Ashley Breda
90. Plaintiff Ashley Breda is a 27-year-old woman who was born and raised in Youngstown, Ohio, and who currently resides in Phoenix, Arizona. Ms. Breda is currently seeking employment.
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91. Ms. Breda is transgender. She was assigned the sex of male at birth. However, she knows herself to be female.
92. Since beginning her transition to live openly as female around two years ago, Ms. Breda has taken steps to bring her body and her gender expression into conformity with her female gender identity, including through clinically appropriate treatment undertaken in consultation with health care professionals. She also changed her name from a traditionally male one to a traditionally female one and changed her name on her state identification card and with the Social Security Administration.
93. Ms. Breda has also corrected the gender marker on her state identification card with the Arizona Department of Transportation and in her social security records.
94. As a result of the Birth Certificate Policy, however, Ms. Breda’s birth certificate fails to reflect her gender identity, which is female. Defendants’ refusal to issue a birth certificate accurately reflecting that Ms. Breda is female is a persistent and stigmatizing reminder that the State of Ohio does not recognize her as a woman. That refusal also impedes her ability to function successfully as the woman that she is in all aspects of her life, including any time when she presents her birth certificate to others. Further, presenting an identity document that identifies her as male is not only humiliating but also dangerous, putting her at risk of violence.
95. Ms. Breda is aware of the high incidence of harassment, discrimination, and violence directed at transgender people. She has personally been a target of on-line harassment.
96. Possessing a birth certificate that is incongruent with Ms. Breda’s gender identity increases her exposure to harassment, discrimination, and violence. Ms. Breda has experienced first-hand the hostility that transgender people often experience when presenting identification that conflicts with their lived gender.
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97. The incorrect gender marker on Ms. Breda’s birth certificate exposed her to hostility when she visited the Arizona Department of Transportation Motor Vehicle Division (“MVD”), for example. Shortly after Ms. Breda relocated to Phoenix, she went to the MVD to obtain an Arizona state identification card. When Ms. Breda requested state identification with a female gender marker, the clerk insisted that Ms. Breda would need to present her birth certificate for inspection, despite the fact that Ms. Breda had already produced her Ohio state identification card with a female gender marker. The clerk erroneously indicated that the gender marker on one’s state identification card would need to match the gender marker on one’s birth certificate. This refusal required the intervention of two supervisors, resulting in a discussion of Ms. Breda’s transgender identity in a public place.
98. Although the supervisor ultimately instructed the clerk to process the request, it was humiliating for Ms. Breda to have to defend that she was a woman and her entitlement to treatment as such, against a government official’s insistence to the contrary, based on the fact that her birth certificate did not reflect that she is female.
99. On another occasion, when she began a new job, she presented her birth certificate to a human resources staff member, who, in turn, disclosed her transgender identity to Ms. Breda’s colleagues.
100. Ms. Breda objects to the state’s ideological message that gender is determined solely by the appearance of external genitals at the time of birth.
101. Ms. Breda has also been required to present, and has presented, her birth certificate in other contexts and will continue to be required to do so. Because people typically perceive Ms. Breda as female, those who see her birth certificate will learn from that document that she is transgender regardless of whether she wishes to share that information with them.
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CAUSES OF ACTION PURSUANT TO 42 U.S.C. § 1983 FIRST CAUSE OF ACTION Equal Protection Violation
102. Plaintiffs incorporate paragraphs 1 through 101 as though fully set forth herein. 103. The Fourteenth Amendment to the United States Constitution provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” 104. The Birth Certificate Policy facially and intentionally discriminates against transgender people based on sex. When the government lists a person’s sex on their birth certificate, the government literally creates a classification based on sex. In the case of transgender people, this classification reflects a sex contrary to their gender identity, causing harm as a result. Discrimination based on sex-related considerations also includes, but is not limited to, discrimination based on gender nonconformity, gender identity, transgender status, and gender transition. 105. Discrimination because a person is transgender is both discrimination based on a sex-related consideration, which requires courts to apply intermediate scrutiny at minimum when evaluating the constitutionality of the government’s discrimination, and discrimination based on transgender status, which requires courts to apply strict scrutiny to such discrimination. 106. Government discrimination against transgender people because of their transgender identity bears the indicia of a suspect classification requiring strict scrutiny by the courts. a. Transgender people have suffered a long history of extreme discrimination and
continue to suffer such discrimination to this day. b. Transgender people are a discrete and insular group and lack the political power
to protect their rights through the legislative process. Transgender people are a
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relatively small minority, and have had limited success securing express federal, state, and local protections specifically protecting them against discrimination, and have been and continue to be regularly targeted by anti-transgender legislation, regulations, bills, and other government action. c. A person’s gender identity or transgender status bears no relation to a person’s ability to contribute to society. d. Gender identity is a core, defining trait that is so fundamental to one’s identity and conscience that a person cannot be required to abandon it as a condition of equal treatment. Gender identity is also generally fixed at an early age and highly resistant to change. 107. The Birth Certificate Policy facially and intentionally discriminates on the basis of sex and transgender status by depriving transgender people who were born in Ohio—and them alone—of birth certificates that accurately reflect their gender identity. Non-transgender people are not deprived of birth certificates that accurately reflect their gender identity. 108. The Birth Certificate Policy facially and intentionally discriminates on the basis of sex and transgender status by depriving all transgender people, and only transgender people, who were born in Ohio of access to an accurate birth certificate that they can use without sacrificing their privacy, health, safety, dignity, and autonomy. Non-transgender people born in Ohio are not deprived of birth certificates they can use without sacrificing their privacy, health, safety, dignity, and autonomy. 109. The Birth Certificate Policy deprives transgender people born in Ohio, including Plaintiffs, of their right to equal dignity and stigmatizes them as second-class citizens in violation of the Equal Protection Clause.
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110. The Birth Certificate Policy deprives transgender people born in Ohio, including Plaintiffs, of the ability to secure certain benefits to which they would otherwise be entitled.
111. The Birth Certificate Policy is not narrowly tailored to further a compelling state interest, substantially related to an important government interest, or even rationally related to a legitimate government interest.
112. The Birth Certificate Policy is maintained and motivated by animus towards transgender people.
113. Accordingly, Defendants are liable for their violation of the Fourteenth Amendment rights of the Individual Plaintiffs under 42 U.S.C. § 1983, and Plaintiffs are entitled to declaratory and injunctive relief against Defendants declaring Ohio’s Birth Certificate Policy unconstitutional and enjoining its enforcement.
SECOND CAUSE OF ACTION Due Process Violation
114. Plaintiffs incorporate paragraphs 1 through 101 as though fully set forth herein. 115. The Due Process Clause of the Fourteenth Amendment places limitations on state action that deprives individuals of life, liberty, or property. 116. The substantive protections of the Due Process Clause, as well as other constitutional provisions giving rise to a right to privacy, protect information that is highly personal and intimate as well as information that could lead to bodily harm upon disclosure. Government infringement of these protections requires the courts to apply strict scrutiny to such government action. 117. The fact that a person is transgender constitutes highly personal and intimate information. A reasonable person would find the involuntary disclosure of one’s transgender identity to be deeply intrusive.
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118. The involuntary disclosure of one’s transgender identity can also cause significant harm, including placing one’s personal safety and bodily integrity in jeopardy. This harm burdens and interferes with the ability of transgender people to live in a manner consistent with their gender identity in all aspects of life, including where doing so is medically necessary.
119. The Birth Certificate Policy violates transgender people’s right to privacy by causing disclosures of their transgender identity and depriving them of significant control over the circumstances around such disclosure.
120. There is no compelling or even legitimate interest in the government causing transgender people to involuntarily disclose their transgender identity any time third parties see their birth certificates.
121. There is no recognizable public interest in causing transgender people to disclose their transgender identity to third parties where they would not otherwise do so.
122. The Birth Certificate Policy also burdens the right to define and express one’s gender identity, including a right not to be treated in a manner contrary to one’s gender by the government. Where the government identifies individuals by their sex in official documents, the constitutional protections that shelter individual and bodily autonomy, dignity, and personhood prohibit the government from interfering with the right to live in accordance with one’s gender identity.
123. Accordingly, Defendants are liable for their violation of Plaintiffs’ Fourteenth Amendment rights under 42 U.S.C. § 1983, and Plaintiffs are entitled to declaratory and injunctive relief against Defendants declaring Ohio’s Birth Certificate Policy unconstitutional and enjoining its enforcement.
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THIRD CAUSE OF ACTION First Amendment Violation
124. Plaintiffs incorporate paragraphs 1 through 101 as though fully set forth herein. 125. The First Amendment to the United States Constitution provides that a state “shall make no law . . . abridging the freedom of speech.” 126. The First Amendment protects both the right to speak and the right to refrain from speaking. 127. The Birth Certificate Policy violates the First Amendment rights of transgender people to refrain from speaking by forcing them to disclose their transgender status and to identify with a gender that conflicts with who they are. It also prevents transgender people from accurately expressing their gender. 128. The Birth Certificate Policy further violates the First Amendment rights of the Plaintiffs to refrain from speaking, forcing them instead to endorse the government’s position as to their own gender, as well as on the meaning of gender generally, through the birth certificate they must show to others. The gender marker listed on the Plaintiffs’ birth certificates conveys the state’s ideological message that gender is determined solely by the appearance of external genitals at the time of birth and never deviates from that – a message to which each of the Plaintiffs strongly objects. 129. The Birth Certificate Policy is not narrowly tailored to serve any compelling government interest. 130. Accordingly, Defendants are liable for their violation of the First Amendment rights of the Individual Plaintiffs under 42 U.S.C. § 1983, and Plaintiffs are entitled to declaratory and injunctive relief against Defendants declaring Ohio’s Birth Certificate Policy unconstitutional and enjoining its enforcement.
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PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court: A. Issue a judgment, pursuant to 28 U.S.C. §§ 2201-02, declaring the Birth Certificate Policy unconstitutional on its face and as applied for the reasons set forth above; B. Permanently enjoin Defendants, their agents, employees, representatives, successors, and any other person acting directly or indirectly in concert with them from enforcing the Birth Certificate Policy, including from refusing to provide birth certificates to transgender people, such as Plaintiffs, that accurately reflect their sex consistent with their gender identity, and without the inclusion of information that would, directly or indirectly, disclose any person’s transgender identity on the face of the birth certificate; C. Award Plaintiffs costs, expenses, and reasonable attorneys’ fees pursuant to 42 U.S.C. § 1988 and any other applicable laws; and D. Grant any injunctive or other relief that this Court deems just, equitable, and proper.
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Dated: March 29, 2018

Respectfully submitted,
By: /s/ Freda Levenson
Freda Levenson, Trial Attorney (0045916) Susan Becker (0010205) Elizabeth Bonham (0093733) ACLU of Ohio 4506 Chester Ave. Cleveland, OH 44103 Phone: 216-472-2220 Facsimile: 216-472-2210 Email: flevenson@acluohio.org Email: sbecker@acluohio.org Email: ebonham@acluohio.org
Kara Ingelhart* (Illinois Bar No. 6321949) Lambda Legal Defense and Education Fund, Inc. 105 W. Adams St., 26th Fl. Chicago, IL 60603 Telephone: (312) 663-4413 Facsimile: (312) 663-4307 Email: kingelhart@lambdalegal.org
Peter C. Renn* (California Bar No. 247633) Lambda Legal Defense and Education Fund, Inc. 4221 Wilshire Blvd., Suite 280 Los Angeles, CA 90010 Telephone: (213) 382-7600 Facsimile: (213) 351-6050 Email: prenn@lambdalegal.org
John Knight* (Illinois Bar No. 6201433) American Civil Liberties Union Foundation 180 N. Michigan Ave., Suite 2300 Chicago, IL 60601 Telephone: (312) 201-9740 Facsimile: (312) 288-5225 Email: jknight@aclu-il.org
Gabriel Arkles* (New York Bar No. 4391918) American Civil Liberties Union Foundation 125 Broad St. New York, NY 10004 Telephone: (212) 549-2569 Facsimile: (212) 549-2650
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Case: 2:18-cv-00272-MHW-CMV Doc #: 1 Filed: 03/29/18 Page: 29 of 29 PAGEID #: 29 Email: garkles@aclu.org David J. Carey (0088787) Thompson Hine LLP 41 S. High St., Ste. 1700 Columbus, OH 43215 Telephone: (614) 469-3200 Facsimile: (614) 469-3361 Email: David.Carey@thompsonhine.com Attorneys for Plaintiffs *Pro hac vice motion pending
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

STACIE RAY, et al., Plaintiffs,
v.

Civil Action 2:18-cv-272 Judge Michael H. Watson Magistrate Judge Chelsey M. Vascura

DIRECTOR, OHIO DEPARTMENT OF HEALTH, et al.,
Defendant.

OPINION AND ORDER This matter is before the Court for consideration of Defendants’ Motion to Stay Discovery (ECF No. 21) pending the Court’s ruling on Defendants’ Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) (ECF No. 18). For the reasons that follow, the Court DENIES Defendants’ Motion to Stay Discovery (ECF No. 21.)
I. On March 29, 2018, Plaintiffs, Stacie Ray, Basil Argento, Ashley Breda, and Jane Doe (collectively “Plaintiffs”), filed this action against Defendants, Lance Himes, in his official capacity as Director of the Ohio Department of Health; Karen Sorrell, in her official capacity as Chief of the Office of Vital Statistics; and Judith Nagy, in her official capacity as State Registrar of the Office of Vital Statistics (collectively “Defendants”). (ECF No. 1.) Plaintiffs are transgender individuals who seek to change their Ohio birth certificates to reflect their gender identity. Plaintiffs allege that they attempted to change the gender marker on their birth certificates, but the State of Ohio (the “State”) categorically refuses to correct transgender

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individuals’ birth certificates to match their gender identity. (Id., at ¶ 41.) Plaintiffs assert that Defendants violated their constitutional rights by enforcing the State’s policy and bring claims under the Equal Protection Clause, Due Process Clause, and First Amendment to the United States Constitution.
On July 6, 2018, Defendants moved to dismiss the Complaint for failure to state a claim. (ECF No. 18.) Defendants filed a Motion to Stay Discovery pending the Court’s ruling on their Motion to Dismiss (ECF No. 21), as well as an Emergency Motion for Interim Stay pending a ruling on the Motion to Stay Discovery (ECF No. 22). The Court granted Defendants’ Emergency Motion for Interim Stay. (ECF No. 26.)
In their Motion to Stay Discovery, Defendants assert that a stay is warranted because a ruling on the Motion to Dismiss will determine which—if any—of Plaintiffs’ claims will survive. (ECF No. 21, at p. 1.) They contend that until their Motion to Dismiss is resolved, “discovery would be premature and a needless expenditure of limited resources.” (Id. at p. 3.) Defendants further contend that Plaintiffs would not be prejudiced by a stay of discovery because the Motion to Dismiss is based on purely legal issues, no risk of spoliation or deterioration of evidence exists due to Defendants’ status as representatives of the Ohio Department of Health, and the litigation is in its early stages. Plaintiffs oppose a stay of discovery, contending that Defendants’ pending Motion to Dismiss does not justify a stay and that further delay will cause harm to Plaintiffs and the public. (ECF No. 27.)
Defendants’ Motion to Dismiss is also fully briefed, with both Defendants and Plaintiffs setting forth substantial arguments. (ECF Nos. 18, 23, and 28.)
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II. “A stay of discovery for any reason is a matter ordinarily committed to the sound discretion of the trial court.” Peters v. Credit Prot. Ass’n LP, No. 2:13-CV-767, 2014 WL 6687146, at *3 (S.D. Ohio Nov. 26, 2014). The Federal Rules of Civil Procedure “permit[] a district court to issue a protective order staying discovery during the pendency of a motion for ‘good cause shown.’” Bowens v. Columbus Metro. Library Bd. of Trs., No. 2:10-cv-00219, 2010 WL 3719245, at *1 (S.D. Ohio Sept. 16, 2010) (quoting Fed. R. Civ. P. 26(c)). As the United States Court of Appeals for the Sixth Circuit has often recognized, “[d]istrict courts have broad discretion and power to limit or stay discovery until preliminary questions which may dispose of the case are answered.” Bangas v. Potter, 145 F. App’x 139, 141 (6th Cir. 2005) (citing Hahn v. Star Bank, 190 F.3d 708, 719 (6th Cir. 1999)). In addition, “[l]imitations on pretrial discovery are appropriate where claims may be dismissed ‘based on legal determinations that could not have been altered by any further discovery.’” Gettings v. Bldg. Laborers Local 310 Fringe Benefits Fund, 349 F.3d 300, 304 (6th Cir. 2003) (quoting Muzquiz v. W.A. Foote Mem’l Hosp., Inc., 70 F.3d 422, 430 (6th Cir. 1995)). In assessing whether a stay is appropriate, “a court weighs the burden of proceeding with discovery upon the party from whom discovery is sought against the hardship which would be worked by a denial of discovery.” Bowens, 2010 WL 3719245, at *1. “When a stay, rather than a prohibition, of discovery is sought, the burden upon the party requesting the stay is less than if he were requesting a total freedom from discovery.” Williamson v. Recovery Ltd. P’ship, No. 2:06-CV-0292, 2010 WL 546349, at *1 (S.D. Ohio Feb. 10, 2010) (citing Marrese v. Am. Acad. of Orthopedic Surgeons, 706 F.2d 1488, 1493 (7th Cir. 1983)).
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In exercising its discretion on this issue, the Court has frequently found that “the fact that
a party has filed a case-dispositive motion is usually deemed insufficient to support a stay of
discovery.” Bowens, 2010 WL 3719245, at *2 (internal citation omitted) (denying the
defendants’ motion to stay discovery despite their pending summary judgment motion); see also
Williams v. New Day Farms, LLC, No. 2:10-cv-0394, 2010 WL 3522397, at *1–2 (S.D Ohio
Sept. 7, 2010) (denying motion to stay discovery pending a ruling on a potentially dispositive
motion). The Court has noted various reasons for this general approach:
The intention of a party to move for judgment on the pleadings is not ordinarily sufficient to justify a stay of discovery. 4 J. Moore, Federal Practice § 26.70[2], at 461. Had the Federal Rules contemplated that a motion to dismiss under Fed. R. Civ. P. 12(b)(6) would stay discovery, the Rules would contain a provision to that effect. In fact, such a notion is directly at odds with the need for expeditious resolution of litigation . . . . Since motions to dismiss are a frequent part of federal practice, this provision only makes sense if discovery is not to be stayed pending resolution of such motions. Furthermore, a stay of the type requested by defendants, where a party asserts that dismissal is likely, would require the court to make a preliminary finding of the likelihood of success on the motion to dismiss. This would circumvent the procedures for resolution of such a motion. Although it is conceivable that a stay might be appropriate where the complaint was utterly frivolous, or filed merely in order to conduct a “fishing expedition” or for settlement value, cf. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 741, 95 S.Ct. 1917, 1928, 44 L.Ed.2d 539 (1975), this is not such a case.
Williams, 2010 WL 3522397, at *2 (quoting Gray v. First Winthrop Corp., 133 F.R.D. 39, 40
(N.D. Cal. 1990)). Accordingly, a stay will not “ordinarily be granted to a party who has filed a
garden-variety Rule 12(b)(6) motion” unless that motion “raises an issue such as immunity from
suit, which would be substantially vitiated absent a stay, or unless it is patent that the case lacks
merit and will almost certainly be dismissed.” Williams, 2010 WL 3522397, at *2; see also Ohio
Bell Tel. Co. v. Glob. NAPs Ohio, Inc., No. 2:06-CV-0549, 2008 WL 641252, at *1 (S.D. Ohio
Mar. 4, 2008); see also Peters, 2014 WL 6687146, at *3.
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III. Applying the above principles to this matter, the Court concludes that Defendants have failed to show good cause for a stay of discovery. Neither the pendency of Defendants’ Motion to Dismiss nor their assessment of the merits of their Motion to Dismiss is persuasive. As set forth above, the existence of a “gardenvariety” motion to dismiss is generally insufficient to justify a stay discovery. See, e.g., Williams, 2010 WL 3522397, at *1-2. Defendants’ insistence that their Motion to Dismiss is meritorious is likewise insufficient where, as here, the Court cannot conclude that Plaintiffs’ claims are frivolous or that it is highly likely that Defendants’ Motion to Dismiss will be granted. See Dummen NA, Inc. v. Proven Winners N. Am. LLC, No. 2:16-CV-00709, 2017 WL 4868201, at *1-2 (S.D. Ohio May 3, 2017) (citations omitted) (explaining that it is “unpersuasive for a party to rely on the strength of the motion to dismiss in moving for a motion to stay, unless the complaint is clearly frivolous,” and that the Court is “not inclined to grant a stay based on one party’s view of the strength of its Motion to Dismiss”); see also Ohio Bell Telephone, 2008 WL 641252, at *2 (denying a motion to stay discovery where the jurisdictional issues raised in the dispositive motion were “fairly debatable,” but noting that it might be persuaded to grant a stay of discovery if the issues were “clear-cut” such that “the likelihood of a jurisdictional dismissal were high”); City of Lancaster v. Flagstar Bank, FSB, No. 2:10-CV-01041, 2011 WL 1326280, at *4 (S.D. Ohio Apr. 5, 2011) (denying a motion to stay discovery after concluding that the parties’ contentions were not frivolous). Significantly, Defendants acknowledge the possibility of one or more of Plaintiffs’ claims surviving the Motion to Dismiss. (Defs.’ Mot. to Stay, ECF
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No. 21 at p. 3 (“It is also possible that one or more claims survive the Motion . . . .”).) Under such circumstances, Defendants have not demonstrated good cause for a stay of discovery.
Although not dispositive, the Court also notes that Defendants’ conclusory contentions regarding the expense of discovery are insufficient to outweigh the potential prejudice to Plaintiffs from further delay. See, e.g., Flagstar Bank, FSB, 2011 WL 1326280, at *5 (denying a motion to stay discovery where the “the City ma[de] no effort to detail the specific burdens it will face from discovery . . . nor d[id] it explain how the prejudice it would face is different from any other party that files a potentially case-dispositive motion before the Court”).
IV. For the reasons set forth above, Defendants’ Motion to Stay Discovery is DENIED. (ECF No. 21.) IT IS SO ORDERED.
/s/ Chelsey M. Vascura___ CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE
6

 
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

Stacie Ray, eta/.,

Plaintiffs,

Case No. 2:18-cv-272

v.

Judge Michael H. Watson

Lance Himes, Director, Ohio Department Health, eta/.,

Magistrate Judge Jolson

Defendants.

OPINION AND ORDER Stacie Ray ("Ray"), Basil Argento ("Argento"), Jane Doe ("Doe"), and Ashley Breda ("Breda," collectively "Plaintiffs") sue Lance Himes ("Himes"), in his capacity as Director of the Ohio Department of Health ("ODH"), Karen Sorrell ("Sorrell"), in her capacity as Chief of the Ohio Office of Vital Statistics, and Judith Nagy ("Nagy"), in her capacity as State Registrar of the Ohio Office of Vital Statistics (collectively "Defendants"). ECF No. 1. Defendants move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 18. For the following reasons, the Court DENIES Defendants' motion.
I. FACTS This action is brought by four transgender individuals who wish to change
the sex on their1 Ohio birth certificates to reflect their gender identity. Compl. mf

1 This Opinion uses the pronouns "they" and "them" to be consistent with those used in the Complaint.

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11-14, ECF No. 1. Plaintiffs Ray, Doe, and Breda all identify as women, but their birth certificates designate their sex as male. /d. 111 . Plaintiff Argento identifies as a man, but his birth certificate indicates his sex as female. /d.
ODH, through its Office of Vital Statistics, is responsible for issuing and correcting birth certificates in Ohio. /d.111116-17, 41. Himes supervises the activities of ODH and enforces Ohio's vital statistics laws. /d. 1115. Sorrell and Nagy are the Chief and State Registrar of the Office of Vital Statistics, respectively. /d. 111116-17. Sorrell oversees enforcement of Ohio's vital statistics laws, while Nagy has authority over the issuance and alteration of Ohio's birth certificates. /d.
According to the Complaint, each Plaintiff has unsuccessfully requested to have the sex-which Plaintiffs refer to as the "gender marker"-corrected on their Ohio birth certificate. /d. 111141, 56, 75. Moreover, Plaintiffs allege that, except for a short time when Defendants exercised their authority to correct birth certificates for transgender people pursuant to a court order, Defendants have categorically refused to change the sex on any transgender person's birth certificate to match their gender identity. /d. 111141, 43. Plaintiffs refer to this failure to act under the law as Ohio's "Birth Certificate Policy." 2 /d. 1141.

2 According to Plaintiffs, this alleged policy has only been reduced to writing in letters

sent by Defendants rejecting requests by transgender persons to correct their birth

certificate. /d. ~ 42.

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As it stands today, Ohio and Tennessee3 are the only states that do not
permit a transgender person to change the sex on their birth certificate. /d. 1"[45.
By contrast, the Ohio Bureau of Motor Vehicles ("Ohio BMV") allows transgender people to change the sex on their driver's license and state identification card to reflect an individual's gender identity. ld.1"[47. Federal agencies, including the U.S. Department of State and the Social Security Administration, also allow
changes to an individual's sex in their respective records. /d. 1l 46. Each Plaintiff
here has changed their name and sex on their Ohio driver's license or state identification card and in their social security records, as well as taken steps to bring their body and gender expression into conformity with their gender identity. /d. 1"[1"[50, 61' 80, 92.
Gender identity refers to "a person's fundamental, internal sense of their gender." /d. 1"[18. For transgender people, gender identity does not match the
sex assigned to them at birth based on their external genitalia. /d. W 19-20.
Rather, according to Plaintiffs, there are other "sex-related characteristics" such as chromosomes, hormone levels, and internal reproductive organs that are not

3 At the time this case was filed, Kansas was also included among those states that do

not allow changes to birth certificates based on gender identity. However, on June 21,

2019, Kansas became the forty-eighth state to allow transgender individuals to obtain

birth certificates that reflect an individual's "true sex" consistent with their gender

identity. Notice, 1, ECF No. 40; Consent Judgment, 3-4, Foster v. Andersen, No. 18-

cv-2552 (D. Kan. June 21, 2019).

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in alignment with one another, causing gender identity to be the "critical

determinant of sex." /d. 1f1T 20-21.

Plaintiffs allege that "[l]iving in a manner consistent with one's gender

identity is critical to the health and well-being of transgender people." /d. 1f 23.

"The discordance between one's gender identity and birth-assigned sex can be

associated with clinically significant distress, which is known as gender

dysphoria." /d. 1f 26. Thus, the process by which transgender people come to

live in a manner consistent with their gender identity versus their birth-assigned

sex is known as "transition." /d. 1f 23.

The transition process is specific to each transgender individual but may

include "social transition, gender confirmation medical treatment, and/or gender

confirmation surgical treatment." /d. 1f 24. Social transition includes changing

one's name, changing identity documents to reflect gender identity, and/or

changing one's outward appearance, including hairstyle and clothing. /d. 1f 25.

Plaintiffs allege that while some transgender people undergo medical or surgical

treatment, social transition is also part of the necessary medical treatment for

many transgender people with gender dysphoria. /d.1f 27. Ultimately, the goal

of social transition is to "bring the person's physical appearance and social

presentation into better alignment with their gender." /d. 1f 29.

There is no question that "[a] birth certificate is an essential government-

issued document that each person uses to establish their identity throughout their

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lifetime." /d. 1!32. According to the Complaint, accurate birth certificates are

essential to gaining "[a]ccess to employment, education, housing, health care,

banking, travel, and government services." /d. 112. Plaintiffs claim that lack of

access to an accurate birth certificate "subjects them to discrimination, privacy

invasions, harassment, humiliation, stigma, harm to their health, and even

violence." /d. 1!3. Plaintiffs also allege that depriving transgender people from

obtaining birth certificates that match their gender identity denies them access to

birth certificates they can comfortably use to participate in public life and

interferes with medical treatment for gender dysphoria by preventing a

transgender person's ability to live in an outward manner consistent with their

gender identity. /d. 111!3, 30.

Plaintiffs contend that in any scenario where they are required to present

their current birth certificate, they are forced to disclose their transgender status

to other people whether they want to or not. /d. 1!36. The Complaint provides

several specific instances where this is alleged to have occurred to Plaintiffs.

According to Ray, when she presented her birth certificate during the orientation

process for a new job, she was outed as transgender by the human resources

person in front of ten coworkers upon realizing Ray's birth certificate did not

match the gender on her other documents. /d. 1!54. Similarly, when she

underwent a background check to obtain a hazmat endorsement for her

commercial driver's license, a receptionist loudly disclosed her status as

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transgender in a public waiting area after noting the mismatch between her birth

certificate and driver's license. /d. 1155. Likewise, Doe was outed as

transgender to a waiting room of "more than one hundred people" when she

presented her birth certificate to the Social Security Administration to correct the

"gender marker" in her social security records. /d. 1185. Confusion regarding

Breda's "gender marker" on her birth certificate and her other Ohio identification

documents caused a discussion at an Arizona government agency regarding her

being transgender when she attempted to get a new identification card after

relocating to Phoenix. /d. 1197. She was also outed as transgender after starting

a new job when a human resources member disclosed her transgender identity

to her colleagues upon inspecting her Ohio birth certificate. /d. 1199. Argento

alleges similar involuntary disclosure of his transgender status as he went

through the process of using his Ohio birth certificate to obtain dual Italian

citizenship and, unsuccessfully, an Italian passport. /d. 111166-77. Plaintiffs

describe these experiences as humiliating, stigmatizing, and despairing. /d. 1111

55, 87, 94.

Plaintiffs also claim that such forced disclosure "seriously jeopardize[s] a

person's safety and subject[s] the person to a risk of bodily harm[,]" noting a high

incidence of harassment, discrimination and violence directed at transgender

people. /d. 111137, 52, 63, 83, 95. All Plaintiffs recount experiences where they

have been treated with hostility due to their transgender status. Ray alleges that

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due to being harassed and menaced in her work as a truck driver, she has

ceased using truck stops and only uses highway rest stops also used by the

public "because lighting, security cameras, quick accessibility to the highway,

and the presence of police is better[.]" /d. ~52. She also alleges that after her

transgender status was involuntarily disclosed at a new job, her coworkers

refused to speak to her, referred to her as "the freak of the company" and a

female coworker threatened to "beat [her] ass" if she ever saw her in the

women's restroom. /d. ~54. As a result, Ray left that job. /d. Doe recalls being

verbally harassed at work. /d. ~ 83. Breda alleges that she has been the target

of online harassment. /d.~ 95. According to the 2015 U.S. Transgender Survey

that Plaintiffs cite in their Complaint, approximately one in three transgender

people "who showed an identity document with a name or gender that did not

match their gender presentation were verbally harassed, denied benefits or

services, asked to leave, or assaulted." /d.~ 38.

Plaintiffs now seek a declaration that Defendants' Birth Certificate Policy is

unconstitutional on the basis that it impermissibly interferes with their right to

equal protection under the law, substantive due process, and free speech.

Plaintiffs also request the Court permanently enjoin Defendants from enforcing

the Policy. Defendants move to dismiss Plaintiffs' Complaint in its entirety,

maintaining that Plaintiffs have no constitutional right to change their birth

certificates in the manner requested.

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II. STANDARD OF REVIEW A claim survives a motion to dismiss pursuant to Rule 12(b)(6) if it "contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." ld. A complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all of the complaint's allegations are true." Bell At/. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). A court must also "construe the complaint in the light most favorable to the plaintiff." lnge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). In doing so, however, a plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."); Ass'n of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007). "[A] naked assertion . . . gets the complaint close to stating a claim, but without some further factual enhancement it stops short of the line between possibility and plausibility . . . ." Twombly, 550 U.S. at 557.

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Ill. ANALYSIS

A. Ohio's "Birth Certificate Policy"

As a preliminary matter, there appears to be disagreement between the

parties regarding whether Plaintiffs are making a facial challenge to Ohio Rev.

Code §§ 3705.15 and 3705.22 or challenging Defendants' application of these

laws.

Pursuant to Ohio Rev. Code § 3705.15,

Whoever claims to have been born in this state, and whose registration of birth . . . has not been properly and accurately recorded, may file an application for . . . correction of the birth record in the probate court of the county of the person's birth or residence or the county in which the person's mother resided at the time of the person's birth. . . . The probate judge, if satisfied that the facts are as stated, shall make an order correcting the birth record . . . . [W]henever a correction is ordered in a birth record . . . the court ordering the correction shall forthwith forward to the department of health a certified copy of the order containing such information as will enable the department to prepare a new birth record. Thereupon, the department shall record a new birth record using the correct information supplied by the court . . . .

ODH can also amend birth records without a court order. Section 3705.22 states

that "[w]henever it is alleged that the facts stated in any birth . . . record filed in

the department of health are not true, the director may require satisfactory

evidence to be presented in the form of affidavits, amended records, or

certificates to establish the alleged facts." Moreover, "[t]he director of health shall

have charge of the system of vital statistics, enforce sections 3705.01 to 3705.29

of the Revised Code, and prepare and issue instructions necessary to secure the

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uniform observance of such sections[]" and "adopt rules as necessary to insure

that [Ohio] shall have a complete and accurate registration of vital statistics." /d. §

3705.02.

Defendants characterize Plaintiffs' claims as a facial challenge to the

constitutionality of Ohio Rev. Code§§ 3705.15 and 3705.22. Mot. Dismiss 3,

ECF No. 18 ("Plaintiffs do not challenge any discretionary policy or practice;

rather, they attack Defendants' adherence to Ohio's birth-record laws, which do

not allow the relief sought by Plaintiffs."). Based on their interpretation of these

statutory sections, Defendants contend they are required to deny applications

made by transgender individuals for the purpose of changing the listed sex on

their birth certificates to reflect their gender identity. /d. at 4. In support,

Defendants cite an Ohio probate court's finding that Ohio's birth record laws only

allow modification to the sex designation on a person's birth certificate where the

sex was inaccurately reported or recorded at birth. In re Declaratory Relief for

Ladrach, 513 N.E.2d 828 (Ohio P.C. 1987). Further, Defendants argue that

because birth certificates record sex and not gender identity, "Ohio law does not

permit the birth certificate change that Plaintiffs seek." Mot. Dismiss 6, ECF No.

18.

In the Complaint, Plaintiffs explicitly challenge Defendants' "Birth

Certificate Policy," requesting the court "declar[e] [it] unconstitutional on its face

and as applied." Comp1.1J A, ECF. No. 1. Plaintiffs argue that Defendants

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refusal to correct the "gender identification field" on birth certificates for

transgender people, "regardless of whether it is supposedly dictated by state

law," facially discriminates between transgender people and non-transgender

people. Resp.1-2, ECF No. 23. Plaintiffs state "[i]t is precisely the Defendants'

choice not to alter and seal birth records that divulge record holders' transgender

identity that Plaintiffs challenge." /d. at 13 n.6. They go on to argue that "the

instant constitutional challenge does not require the Court to interpret Ohio's

statutes, but evaluate the constitutionality of the Policy." /d. at 2 n.2.

The plain language of the Ohio Revised Code sections at issue do not

explicitly contemplate a transgender individual's ability to change the sex on their

birth certificate to reflect their gender identity nor do they explicitly limit changes

to sex as to only those inaccurately or improperly recorded "at birth." Cf. Tenn.

Code Ann. § 68-3-203(d) ("The sex of an individual shall not be changed on the

original certificate of birth as a result of sex change surgery."). Rather, according

to Defendants' motion, Ohio's decision not to allow transgender people to change

the sex on their birth certificate-which Defendants do not dispute is the practice

of ODH-was adopted by Defendants based on ODH's interpretation of sections

3705.15 and 3705.22 (supported by one probate court case) and the notion that

birth certificates record an individual's sex, not their gender identity. Assuming

the allegations in the Complaint are true, particularly Plaintiffs' assertion that

"gender identity is the critical determinant of sex[,]" Comp1.1J21, ECF No. 1, the

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Court is not convinced that Ohio law prohibits Plaintiffs' request. 4 See Ohio Rev. Code§ 3705.02. Plaintiffs allege that ODH has allowed transgender individuals
to change the sex on their birth certificate with a court order in the past. Compl. 11
43, ECF No. 1. Ultimately, "the distinction between facial and as-applied challenges is not
so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge. The distinction is both instructive and necessary, for it goes to the breadth of the remedy employed by the Court, not what must be pleaded in a complaint." Citizens United v. Federal Election Comm'n, 558 U.S. 310, 331 (2010) (emphasis added). A constitutional claim under the Due Process Clause, for example, "remains a single 'claim' even where a plaintiff challenges an enactment both on its face and 'as applied' to the specific facts at issue." Ass'n of Cmty. Orgs. for
Reform Now v. Corbett, No. 09-951,2010 WL 3885373, at *6 (W.D. Pa. Sep. 28,
201 0) (citing Citizens United, 558 U.S. at 331 ). Thus, in reviewing the sufficiency of the Complaint, the Court need not explicitly decide at this stage whether

4 ln F. V. v. Barron, 286 F. Supp. 3d 1131, 1136 (D. Idaho 2018), the Idaho Department

of Health and Welfare interpreted its vital statistics laws to prohibit changes to the listed

sex unless there was an error in the recording at birth, resulting in a policy of

automatically and categorically denying applications made by plaintiffs and all

transgender individuals for the purpose of changing the listed sex to reflect their gender

identity. In finding the policy unconstitutional as applied, the court noted that "under an

alternative, constitutionally-sound reading of Idaho's vital statistics laws, amendments to

the listed sex are not only possible, but procedures are already in place to facilitate such

amendments[.]" /d. at 1142.

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Plaintiffs' claims constitute a facial challenge, an "as applied" challenge, or

something in between. For ease, and pursuant to the allegations in the

Complaint, the Court will refer to Defendants' claimed "adherence to Ohio's birth-

record laws," Mot. Dismiss 3, ECF No. 18, as Defendants' "Birth Certificate

Policy" moving forward.

B. Due Process

Pursuant to the Fourteenth Amendment of the United State Constitution,

no State may "deprive any person of life, liberty, or property, without due process

of law." U.S. Const. amend. XIV, § 1. In addition to requiring fair procedures

upon taking certain actions, the Due Process Clause also "bar[s) certain

government actions regardless of the fairness of the procedures used to

implement them." Daniels v. Williams, 474 U.S. 327, 331 (1986). This doctrine

is known as substantive due process, and includes "heightened protection

against government interference with certain fundamental rights and liberty

interests," including the right to privacy. Does v. Munoz, 507 F.3d 961, 964 (6th

Cir. 2007) (internal quotations omitted).

The Supreme Court has identified two types of interests "protected by the

right to privacy that [are] rooted in the substantive due process protections of the

Fourteenth Amendment." Lambert v. Hartman, 517 F.3d 433, 440 (6th Cir.

2008). The first is an interest in '"independence in making certain kinds of

important decisions."' /d. (quoting Whalen v. Roe, 429 U.S. 589, 599-600 & n.26

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(1977)). The second is an "'interest in avoiding disclosure of personal matters."'

/d. (quoting Whalen, 429 U.S. at 599, 603-04). The latter is referred to as one's

informational right to privacy and is the right challenged by Plaintiffs in this case.

Comp1.1J1J116-17, ECF No.1.

In analyzing an informational right-to-privacy claim. the Sixth Circuit uses a

two-step process: "(1) the interest at stake must implicate either a fundamental

right or one implicit in the concept of ordered liberty; and (2) the government's

interest in disseminating the information must be balanced against the

individual's interest in keeping the information private." Bloch v. Ribar, 156 F.3d

673, 684 (6th Cir. 1998).

1. Implication of a Fundamental Right

The Sixth Circuit has "recognized an informational-privacy interest of

constitutional dimension in only two instances: (1) where the release of personal

information could lead to bodily harm (Kallstrom). and (2) where the information

released was of a sexual, personal, and humiliating nature (Bloch)." Lambert,

517 F.3d at 440.

a. Kallstrom

In Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998). personnel

records of several undercover officers involved in a drug-conspiracy trial against

violent gang members were released to defense counsel. /d. at 1059. The

personnel records contained the names and addresses of the officers. their

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immediate family, and personal references, among other information. /d. Noting

the gang's "propensity for violence and intimidation," /d. at 1063, the Sixth Circuit

held that the officers' privacy interests were violated when "the city's disclosure .

. . created a risk that the officers' personal information might 'fall into the hands

of persons likely to seek revenge upon the officers' and had created a 'very real

threat' to the officers' and their family members' bodily integrity and possibly even

their lives." Lambert, 517 F.3d at 441 (quoting Kallstrom, 136 F.3d at 1063).

Plaintiffs contend that Defendants' Birth Certificate Policy "forces them to

disclose that they are transgender-every time they must produce a birth

certificate" putting Plaintiffs "at risk of bodily harm." Resp. 9, ECF No. 23.

Defendants argue that because the Complaint does not "identify a situation

where [Plaintiffs'] birth certificate information was released to a dangerous

individual likely to expose Plaintiffs to violence" the allegations fall short of what

is required under Kallstrom. Mot. Dismiss 12, ECF No. 18.

Courts across the United States have explicitly acknowledged the general

hostility and violence affecting the transgender population for at least the last

decade. See, e.g., Whitaker by Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd.

of Educ., 858 F.3d 1034, 1051 (7th Cir. 2017) ("There is no denying that

transgender individuals face discrimination, harassment, and violence because of

their gender identity."); Powell v. Schriver, 175 F.3d 107, 111-12 (2d Cir. 1999)

("It is similarly obvious that an individual who reveals that she is transsexual

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potentially exposes herself . . . to discrimination and intolerance." (internal

quotations omitted)); M.A. B. v. Bd. of Educ. of Talbot Cnty., 286 F. Supp. 3d 704,

720 (D. Md. 2018) (noting that transgender individuals suffer "very high rates of

violence" due to their status; "at least 25% of transgender persons in the United

States were homicide victims in 20 17"); Adams by and through Kasper v. Sch.

Bd. of St. Johns Cnty., Florida, 318 F. Supp. 3d 1293, 1299 n.15 (M.D. Fla.

2018) (pointing to several sources that support that there is a documented history

of discrimination and violence against transgender individuals); Adkins v. City of

New York, 143 F. Supp. 3d 134, 139 (S.D.N.Y. 2015) ("[T]ransgender people

have suffered a history of persecution and discrimination."); Phillips v. Cane, No.

C13-596 RSM, 2013 WL 4049047, at *6 (W.D. Wash. Aug. 9, 2013) (finding that

putting a transgender lawyer's personal information in the pleadings, including

her name prior to gender reassignment. subjected her to an increased risk of

physical danger and harassment); In re E.P.L., 891 N.Y.S.2d 619,621 (N.Y. Sup.

Ct. 2009) (finding numerous documented instances of transgender individuals

being targets of violence).

Moreover, three federal courts have recently addressed the specific threat

transgender persons face due to the government's refusal to allow modification

of certain essential identity documents to match a transgender individual's

gender identity. In Arroyo Gonzalez v. Rosse/la Nevares, 305 F. Supp. 3d 327

(D. P.R. 2018), the District of Puerto Rico was confronted with the same

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constitutional challenges to Puerto Rico's birth certificate policy as Plaintiffs raise
in this case. Like Ohio, Puerto Rico's policy categorically prohibited transgender
persons from correcting their birth certificates to accurately reflect the person's
sex based on their gender identity as opposed to their sex assigned at birth. /d.
at 329. Finding a Due Process violation, the court held that in forcing plaintiffs to
disclose their transgender status, Puerto Rico's policy "expose[d) transgender
individuals to a substantial risk of stigma, discrimination, intimidation, violence,
and danger." /d. at 333.
Likewise, when faced with constitutional challenges to a similar birth
certificate policy in F. V. v. Barron, the District of Idaho noted:
Statistics regarding the ongoing discrimination transgender individuals face highlight why involuntary disclosure of transgender status creates these risks. For instance, nearly twenty-five percent of surveyed college students, when perceived as a transgender person, were verbally, physically, or sexually assaulted in 2015. This figure tracks the percentage of workers reporting mistreatment in the workplace due to gender identity. More than seventy-five percent of transgender workers take steps to avoid such mistreatment at work by hiding or delaying their gender transition, or by quitting their job.
Across all environments, almost fifty percent of transgender people surveyed for the 2015 report responded that they had been verbally harassed due to their gender identity. Nearly one in ten reported being physically assaulted because of their gender identity. Notably, the reported lifetime suicide attempt rate for transgender people is nearly nine times the rate of the United States population on average.

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286 F. Supp. 3d 1131, 1138 (D. Idaho 2018) (internal citations omitted).5
In Love v. Johnson, 146 F. Supp. 3d 848 (E.D. Mich. 2015), a group of
transgender individuals challenged the constitutionality of a Michigan policy that
required an individual to provide a birth certificate showing their corrected sex in
order to change their gender marker on a state identification card. /d. at 850-51.
Noting the varying degrees of difficulty (or impossibility in some cases) of getting
a corrected birth certificate, plaintiffs alleged that the Michigan policy indirectly
required them to reveal their transgender status to anyone who saw their driver's
license. /d. at 851-52. Finding a violation of the plaintiffs' due process right to
privacy, the Eastern District of Michigan stated:
Plaintiffs relying on their own experiences and the findings of several well-documented studies, maintain that there is a great deal of animosity towards the transgender community. Similar to Kallstrom, the Court finds "no reason to doubt that where disclosure of this [highly intimate] information may fall into the hands of persons" harboring such negative feelings, the Policy creates a very real threat to Plaintiffs' personal security and bodily integrity.
/d. at 856 (quoting Kallstrom, 136 F.3d at 1063).
The Court recognizes that Kallstrom's holding "created a narrowly tailored
right, limited to circumstances where the information disclosed was particularly
sensitive and the persons to whom it was disclosed were particularly dangerous
vis-a-vis the plaintiffs." Barber v. Overton, 496 F.3d 449, 456 (6th Cir. 2007).

5 The District of Idaho ultimately struck down Idaho's birth certificate policy as

unconstitutional based on the State's concession that it violated the Equal Protection

Clause of the Fourteenth Amendment. /d. at 1134-35.

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However, Kallstrom does not require courts to wait until plaintiffs are actually

assaulted, or worse, to recognize "a very real threat to [transgender individuals']

personal security and bodily integrity" upon disclosure of their status. See

Kallstrom, 136 F.3d at 1063. Rather, '"hypothetical risk' plays an important role

in determining whether Plaintiffs' privacy claim implicates a fundamental liberty

interest." Love, 146 F. Supp. 3d at 855. In Kallstrom, there was no evidence

presented that the gang members used the released personal information to

threaten or harm the officers. Nonetheless, the Sixth Circuit held that "where the

release of private information places an individual at substantial risk of serious

bodily harm, possibly even death, from a perceived likely threat, the 'magnitude

of the liberty deprivation . . . strips the very essence of personhood."'

Kallstrom, 136 F.3d at 1064 (emphasis added) (quoting Doe v. Claiborne, 103

F.3d 495, 506-07 (6th Cir. 1996)). Here, like in Kallstrom, Plaintiffs have alleged

facts which, accepted as true, suggest that the forced disclosure of Plaintiffs'

transgender status upon presentation of their birth certificates place their

"personal safety and bodily integrity in jeopardy." Compl. 1T 118, ECF No. 1.

In addition to citing statistical data to support the allegation that

transgender people are disproportionately targets of violence-"nearly one in

three . . . transgender people who showed an identity document with a name

or gender that did not match their gender presentation were verbally harassed,

denied benefits or services, asked to leave, or assaulted" (Compl. 1T 38, ECF No.

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1)-the Complaint alleges several instances where Plaintiffs were personally

subject to hostility and harassment when forced to produce a birth certificate that

did not match their gender identity. See Compl. 1154, ECF No. 1 {After a human

resources person disclosed Ray's transgender identity upon presentation of her

birth certificate, a female coworker threatened to "beat [her] ass" if she ever saw

her in the women's restroom.); /d. 1185 (Doe was met with "overt hostility" upon

presenting her birth certificate at the Social Security office, when a staff person

loudly told her she could not "just change [her] from male to female based on

[her] say-so."); /d. 1197 (Breda was exposed to hostility when a clerk at the

Arizona Department of Transportation erroneously denied her request for a state

identification card with a female gender marker upon presenting her birth

certificate). As a result of their transgender status, Plaintiffs also recount

instances of having to use specific restrooms based on their proximity to security,

verbal harassment at work, and online harassment. /d. 111152, 83, 95. As the

court in Love concluded, "[t]hese allegations cut at the very essence of

personhood protected under the substantive component of the Due Process

Clause." 146 F.3d at 855 (internal quotations omitted).

b. Bloch

In addition to putting them at risk of bodily harm, Plaintiffs also contend

that Defendants' Birth Certificate Policy forces them to reveal "highly personal

and intimate" information, i.e. their transgender status, each time they are

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required to produce their birth certificates. Compl. ,-r 116, ECF No. 1; Resp. 9,

ECF No. 23. Defendants argue that Plaintiffs do not have a fundamental right to

"keep secret how their sex was reported and recorded at birth." Mot. Dismiss 11,

ECF No. 18.

In Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998), a sheriff released "highly

personal and extremely humiliating details" of the rape of the plaintiff during a

press conference, some of which were "so embarrassing [the plaintiff] had not

even told her husband." /d. at 676. The Sixth Circuit held that such disclosure

violated the plaintiff's right to privacy because "sexuality and choices about sex,

in turn, are interests of an intimate nature which define significant portions of our

personhood. Publically revealing information regarding these interests exposes

an aspect of our lives that we regard as highly personal and private." /d. at 685.

The Second Circuit has long held that the Constitution protects the right to

maintain the confidentiality of one's transsexualism. 6 Powell v. Schriver, 175 F.3d

107, 112 (1999); see also Matson v. Bd. of Educ. of City School Dist. of New

York, 631 F.3d 57, 64-65 (2d Cir. 2011 ). Finding it analogous to the right to

maintain privacy over certain medical conditions, the court explained its

reasoning in reaching this conclusion:

Individuals who have chosen to abandon one gender in favor of another understandably might desire to conduct their affairs as if such a transition was never necessary. That interest in privacy ... is particularly compelling.... [T]ranssexualism is the unusual condition

6 The Court recognizes that "transsexualism" is an outdated term. Case No. 2. 18-cv-272

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that is likely to provoke both an intense desire to preserve one's medical confidentiality, as well as hostility and intolerance from others. /d. at 111. Similarly, upon holding that Puerto Rico's birth certificate policy violated the plaintiffs' right to privacy in Arroyo Gonzalez, the court concluded that "there are few areas which more closely intimate facts of a personal nature than one's transgender status." 305 F. Supp. 3d at 333 (internal quotations omitted); see a/so Doe v. City of Detroit, No. 18CV11295, 2018 WL 3434345, at *2 (E.D. Mich. July 17, 2018) (permitting a transgender individual to proceed by pseudonym upon finding that the individual's transgender status "certainly qualifies as information of the utmost intimacy" (internal quotations omitted)). This Court recently held that patients had a fundamental right to keep private medical records surrounding their abortion procedures because such records included details regarding the patients' sexuality and sexual choices, which the Court concluded was information of a "sexual, personal, and humiliating nature." Planned Parenthood Sw. Ohio Region v. Hodges, No. 15CV568, 2019 WL 1439669, at *5 (S.D. Ohio Mar. 31, 2019); see a/so Eastwood v. Dep't. of Corr. of State. of Ok/., 846 F.2d 627, 631 (1Oth Cir. 1988) (explaining that the right to privacy is "implicated when an individual is forced to disclose information regarding personal sexual matters"). As the District of Rhode Island explained, "[u]nquestionably, one's sexual practices are among the most intimate parts of one's life. When those sexual practices fall outside the

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realm of 'conventional' practices which are generally accepted without

controversy, ridicule, or derision, that interest is enhanced exponentially. As a

transsexual, [a] plaintiff's privacy interest is both precious and fragile . . . ."

Doe v. Blue Cross & Blue Shield of Rhode Island, 794 F. Supp. 72, 74 (D. R.I.

1992).

According to Plaintiffs, "[d]enying transgender people birth certificates that

match their gender identity reveals private information in contexts where this

information would otherwise remain undisclosed . . . regardless of whether a

person's transgender identity may otherwise be known by others . . . and

regardless of a person's desire not to disclose that personal information." Compl.

1[36, ECF No. 1. Plaintiffs describe such involuntary disclosure of this "highly

personal and intimate information" about their transgender status as humiliating,

stigmatizing, and despairing. /d.111!55, 87, 94. As opposed to "[m]aintaining

secrecy over basic vital statistics" as Defendants categorize it, Mot. Dismiss 11,

ECF No. 18, the Court agrees with the Second Circuit that "[t]he excru(c]iatingly

private and intimate nature of [being transgender], for persons who wish to

preserve privacy in the matter, is really beyond debate." Powell, 75 F.3d at 111;

see a/so Love, 146 F. Supp. 3d at 855.

The Court finds that under both Kallstrom and Bloch, Plaintiffs have

adequately alleged that Defendants' Policy of refusing to change birth certificates

to reflect gender identity implicates a release of personal information that is of a

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"sexual, personal, and humiliating nature" and "could lead to bodily harm," resulting in a violation of Plaintiffs' informational right to privacy.7 Lambert, 517 F.3d at 440; see Arroyo Gonzalez, 305 F. Supp. 3d at 333; Love, 146 F. Supp. 3d at 856.
c. Public Record
Defendants also argue that since a birth certificate is a public record, Plaintiffs cannot claim a privacy interest in information within that record. Mot. Dismiss 10, ECF No. 18. Plaintiffs maintain that "[l]imited availability of information to the public does not foreclose a privacy claim" because it is the disclosure of "Plaintiffs' assigned sex at birth in a context that reveals them to be transgendei' that violates their right to privacy. Resp. 14, ECF No. 23 (emphasis added). While the Court agrees with Defendants that birth certificates in Ohio are public record,8 the Court also agrees with Plaintiffs' framing of the privacy interest at issue.

7 The Court would also note that pursuant to a consent judgment between three transgender persons and the Kansas Statewide Transgender Education Project (plaintiffs) and officials representing the Kansas Department of Health and Environment (defendants), the District of Kansas very recently held that Kansas' birth certificate policy, which prohibited transgender people born in Kanas from obtaining birth certificates consistent with their gender identity, violated the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. Consent Judgment, 2-3, Foster v. Andersen, No. 18-cv-2552 (D. Kan. June 21, 2019). 8 State ex ref. Hammons v. Chisholm, 792 N.E.2d 1120 (Ohio 2003).

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In Cox Broadcasting Corp. v. Cohn, the Supreme Court held that the

defendants were not liable for a violation of privacy for publishing the name of a

deceased rape victim where the information was taken from a court record open

to public inspection. 420 U.S. 469, 494-97(1975); see a/so Munoz, 507 F.3d at

965-66 (finding that, because plaintiffs' convictions were public and remained

public, there was no right to privacy implicated in their publication). The Court

stated that "the prevailing law of invasion of privacy generally recognizes that the

interests in privacy fade when the information involved already appears on the

public record." Cohn, 420 U.S. at 494-95.

As Defendants suggest, members of the public can request certified copies

of vital records, including birth certificates, pursuant to Ohio Rev. Code

§ 3705.23(A)( 1). Mot. Dismiss 10, ECF No. 18. In this scenario, disclosure of a

Plaintiff's birth certificate to a third party may only constitute a de minimis

invasion of privacy when the gender identities of the Plaintiffs are otherwise

unknown. See U.S. Dep't. of State v. Ray, 502 U.S. 164, 176 (1991). However,

Plaintiffs are not claiming an invasion of privacy due solely to the disclosure of

their birth certificates or the sex listed on their birth certificates. Plaintiffs are

claiming that "disclosing the Plaintiffs' assigned sex at birth in a context that

reveals them to be transgender violates their right to privacy." Resp. 14, ECF No

23. In other words, in any situation where Plaintiffs must present their birth

certificate, including those alleged in the Complaint, they are forced to

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involuntarily disclose their transgender status due to a mismatch with other

identity documents, their outward appearance, or both. Cf. Carcano v. McCrory,

203 F. Supp. 3d 615, 648 (M.D.N.C. 2016) (explaining that as opposed to laws

that govern the modification of birth certificates, where the law required

transgender persons use the bathroom that matched the sex on their birth

certificate but a person could change the sex on their birth certificate, "an

individual's choice of bathroom does not directly or necessarily disclose whether

that person is transgender; it merely discloses the sex listed on the person's birth

certificate"). Thus, the invasion of privacy becomes different and significant

when that information is linked to particular Plaintiffs upon presentation of their

birth certificates. See Ray, 502 U.S. at 176.

Unlike the victim's name in Cohn, Plaintiffs' transgender status does not

appear in a public record. Accordingly, Plaintiffs' privacy interest in their

transgender status does not fade away because their birth certificates are public

record. See U.S. Dep't. of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 500

(1994) ("An individual's interest in controlling the dissemination of information

regarding personal matters does not dissolve simply because that information

may be available to the public in some form."); U.S. Dept. of Justice v. Reports

Comm. for Freedom of Press, 489 U.S. 749, 770 (1989) ("[T]he fact that an event

is not wholly 'private' does not mean that an individual has no interest in limiting

disclosure or dissemination of the information." (internal quotations omitted));

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Abraham & Rose, P.L.C. v. U.S., 138 F.3d 1075, 1083 (6th Cir. 1998) ("[A] clear

privacy interest exists with respect to such information as names, addresses, and

other identifying information even if such information is already available on

publicly recorded filings.").

2. State Action

Under 42 U.S.C. § 1983, Plaintiffs must prove that Defendants are acting

under the color of state law to deprive them of rights secured by federal law.

Bloch, 156 F.3d at 677. It is not contested that, in denying Plaintiffs corrected

birth certificates, Defendants were acting in their capacities as state government

employees of ODH. Comp1.1]1]15-17, ECF No. 1. However, Defendants

contend that because the Sixth Circuit only recognizes a right to informational

privacy when the government is responsible for releasing protected information,

Plaintiffs' Due Process claim fails. Mot. Dismiss 11, ECF No. 18. Defendants

argue that it is Plaintiffs, not Defendants, that are disclosing the information in

their birth certificates to third parties. /d. at 12.

Unlike Kallstrom, this Court need not address whether the actions or

potential actions of private actors can be attributed to Defendants. 136 F.3d at

1066. Here, there is no dispute that a birth certificate is a government document.

According to Defendants, because a birth certificate is a government document,

"the state maintains absolute control over what information can be displayed on

birth certificates." Mot. Dismiss 7-9, ECF No. 18. While ODH is not the entity

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requiring disclosure or the entity actually disclosing the information, the threat of

disclosure is imposed indirectly by the government through its birth certificates.

K.L. v. State, Dep't. of Admin., Div. of Motor Vehicles, 2012 WL 2685183, at *6

(Sup. Ct. Alaska Mar. 12, 2012); see also Arroyo Gonzalez, 305 F. Supp. 3d at

333 (finding a violation of constitutional right to privacy where the Commonwealth

forced plaintiffs to reveal their transgender status by permitting plaintiffs to

change their name on their birth certificate but not their gender marker); Love,

146 F. Supp. 3d at 856 (finding that state action infringed upon a fundamental

right by requiring plaintiffs to carry an identification card with a sex that conflicts

with their lived sex, thereby forcing them to reveal their transgender status).

It is without question that the government "may not deny a benefit to a

person on a basis that infringes his constitutionally protected interests." Perry v.

Sindermann, 408 U.S. 593, 597 (1972). "Just as the State may not directly order

someone to stop exercising his rights, it may not coerce him into 'giving them up'

by denying Dbenefits if he exercises those rights[,]" even if he is not entitled to

that benefit. Planned Parenthood of Greater Ohio v. Hodges, 917 F.3d 908,

911-12 (6th Cir. 2019). When Plaintiffs present their birth certificates, the

discrepancy between their physical appearance, other identity documents, and

their birth certificates force disclosure of Plaintiffs' transgendered status.

Plaintiffs cannot avoid such disclosure unless Defendants change their Policy or

Plaintiffs forego participating in public life-"determining eligibility for

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employment, obtaining other identity documents (including driver's licenses, state

identification cards, social security cards, passports . . . ), establishing school

records, proving age, and enrolling in government programs." Compl. 1!33, ECF

No. 1. The Court is not persuaded at this stage of the litigation that Defendants,

through the "absolute control" over the information contained in Plaintiffs' birth

certificates, have no part in the forced disclosure of Plaintiffs' transgender status.

3. Potential State Interests

When a law infringes on a fundamental right, it is subject to strict scrutiny

and cannot be upheld absent a showing by the State that the law is narrowly

tailored to further a compelling interest. United States v. Brandon, 158 F.3d 947,

959-60 (6th Cir. 1998). Whether a law is narrowly tailored "will turn on whether it

is the least restrictive and least harmful means of satisfying the government's

goal . ." /d. at 960.

a. Accurate Records and Prevention of Fraud

In their motion, Defendants do not assert any compelling interests that

specifically support the Birth Certificate Policy in addressing Plaintiffs' Due

Process argument. Rather, Defendants rest on the argument that because

Ohio's birth certificates are public record and Defendants' refusal to change the

sex designation on their birth certificates does not implicate a fundamental liberty

interest, Plaintiffs' claim fails as a matter of law. Mot. Dismiss 10, ECF No. 18.

However, Defendants do raise two government interests in support of the Birth

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Certificate Policy in the context of an intermediate scrutiny or rational basis equal

protection analysis: "the well-ordered operation of the state's vital recordkeeping

and the prevention of fraud." /d. at 17. Even if the Court were to find that these

are compelling interests, Defendants' Birth Certificate Policy is not narrowly

tailored or "least restrictive" to satisfy either.

There is no dispute that Ohio allows transgender individuals to change

their sex to reflect their gender identity on their driver's licenses and state

identification cards. Compi.1T 47, ECF No. 1; Mot. Dismiss 20, ECF No. 18. In

attempting to distinguish birth records from these other state identity documents,

Defendants argue that "(b]irth certificates are historical records." Mot. Dismiss

19, ECF No. 18. The Court assumes that Ohio has a compelling interest in

maintaining the historical accuracy of all information in its birth records. Yet,

Ohio law does provide procedures to amend a birth certificate to change one's

name and the names of one's parents in the case of an adoption. Ohio Rev.

Code §§ 3705.12, 3705.13. Moreover, forty-eight other states provide

procedures for transgender individuals to change the sex on their birth

certificates. Compl. 1T 45, ECF No. 1. As the District Court noted in Love, "[t]he

Court seriously doubts that these states have any less interest in ensuring an

accurate record-keeping system." 146 F. Supp. 3d at 857.

Similarly, Defendants fail to articulate how the State's interest in preventing

fraud provides for laws that allow amendments to some parts of the birth

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certificate but not others, or permits changes to driver's licenses and state

identification cards and not birth certificates. Under Defendants' Policy, Plaintiffs

all currently possess government-issued identity documents that provide they are

both male and female. See Compl.1"[1"[50, 51, 61, 62, 80-82, 92, 93, ECF No. 1.

The Court cannot conceive how this helps prevent fraud rather than perpetuate it.

b. Other Compelling Reasons

Defendants also identify several other "compelling reasons" they believe

support the request to dismiss the Complaint. Defendants claim that invalidating

Ohio's Policy would "violate traditional judicial-restraint principles," "upend a

comprehensive legislative scheme," and "implicate[] core federalism concerns."

Mot. Dismiss 18, ECF No. 18.

In the strict scrutiny context, "these vague, speculative, and

unsubstantiated state interests do not rise anywhere near the level necessary to

counterbalance the specific, quantifiable, and particularized injuries" alleged by

Plaintiffs and suffered by transgender people as a whole when they miss out on

basic government benefits or face being outed as transgender upon presentation

of their birth certificates. Obergefe/1 v. Wymys/o, 962 F. Supp. 2d 968, 981 (S.D.

Ohio Dec. 23, 2013), rev'd sub nom. DeBoer v. Snyder, 772 F.3d 388 (6th Cir.

2014), rev'd sub nom. Obergefe/1 v. Hodges, 135 S. Ct. 2584 (2015). Further,

the Court is not persuaded that "[f]ederalism principles dictate that this Court

leave this task to the reasoned consideration of Ohio's legislature[,]" simply

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because no national consensus exists on what is required to allow an individual

to change the sex on their birth certificate. Mot. Dismiss 19, ECF No. 19.

"The dynamic of our constitutional system is that individuals need not await

legislative action before asserting a fundamental right." Obergefe/1, 135 S. Ct. at

2605. "An individual can invoke a right to constitutional protection when he or

she is harmed, even if the broader public disagrees and even if the legislature

refuses to act." /d. State laws and policies are still subject to guarantees afforded

by the Constitution. Obergefe/1, 962 F. Supp. 2d at 981. Additionally, it is not

compelling that a change to Defendants' Policy might be challenging to

implement. Forty-eight other states have figured it out. See In re A.L., 81 N.E.3d

283, 288 (Ind. Ct. App. 2017) ("[T]he amendment of a birth certificate with

respect to gender is not novel. The vast majority of states . . . have allowed it

in practice for some time." (internal quotations omitted)). Therefore, none of

these other asserted interests are compelling enough to counteract the alleged

infringement on Plaintiffs' right to privacy on a motion to dismiss.

C. Remaining Claims

In light of the Court's finding that Plaintiffs have raised a cognizable claim

under the Due Process Clause, the principle of judicial restraint cautions against

deciding the sufficiency of Plaintiffs' remaining constitutional claims. Love, 146

F. Supp. 3d at 857; see Camreta v. Greene, 563 U.S. 692, 705 (2011) ("[A]

longstanding principle of judicial restraint requires that courts avoid reaching

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constitutional questions in advance of the necessity of deciding them." (internal quotations omitted}); Harmon v. Brucker, 355 U.S. 579, 581 (1958) (explaining that courts have a "duty to avoid deciding constitutional questions presented unless essential to proper disposition of a case"). Therefore, the remainder of Defendants' motion to dismiss is denied without prejudice. Defendants may seek leave to renew the motion should future developments require the Court to rule on either of the remaining claims.
IV. CONCLUSION
For the foregoing reasons, Defendant's motion, ECF No. 18, is DENIED. IT IS SO ORDERED.
M CHAEL H. WA ON, JUDGE UNITED STATES DISTRICT COURT

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 Ray v. Director, Ohio Department of Health, Not Reported in Fed. Supp. (2018) 2018 WL 8804858

2018 WL 8804858 Only the Westlaw citation is currently available. United States District Court, S.D. Ohio, Eastern
Division.
Stacie RAY, et al., Plaintiffs, v.
DIRECTOR, OHIO DEPARTMENT OF HEALTH, et al., Defendant.
Civil Action 2:18-cv-272 |
Filed 04/05/2018
Attorneys and Law Firms
Freda J. Levenson, Elizabeth Bonham, ACLU of Ohio, Jennifer S. Roach, Cleveland, OH, David J. Carey, Thompson Hine LLP, Columbus, OH, Gabriel Arkles, Pro Hac Vice, American Civil Liberties Union, New York, NY, John Knight, Pro Hac Vice, American Civil Liberties Union, Kara N. Ingelhart, Pro Hac Vice, Lambda Legal Defense and Education Fund, Inc., Chicago, IL, Peter C. Renn, Pro Hac Vice, Lambda Legal Defense and Education Fund, Inc., Los Angeles, CA, Susan Jane Becker, Avon Lake, OH, for Plaintiffs.
Jason J. Blake, Albert J. Lucas, Calfee Halter & Griswold LLP, Columbus, OH, Kimberly Moses, Calfee Halter & Griswold, Cleveland, OH, for Defendants Chief, Office of Vital Statistics, State Registrar, Office of Vital Statistics.
Jason J. Blake, Albert J. Lucas, Calfee Halter & Griswold LLP, Columbus, OH, for Defendant Amy Acton.
ORDER
CHELSEY M. VASCURA, UNITED STATES MAGISTRATE JUDGE
*1 This matter is before the court for consideration of Plaintiff Jane Doe’s Motion for Protective Order and

Leave to Proceed Anonymously. (ECF No. 2.) Plaintiffs, Stacie Ray, Basil Argento, Ashley Breda, and Jane Doe, filed a Complaint in this Court on March 29, 2018, asserting constitutional claims against the following Defendants: Director, Ohio Department of Health; Chief, Office of Vital Statistics; and State Registrar, Office of Vital Statistics. (ECF No. 1.) On the same date, Plaintiff Doe filed the subject Motion, seeking leave to proceed anonymously and a protective order to protect her identity from public disclosure. (ECF No. 2.) Plaintiff asserts that “disclosure of her identity, including her transgender identity, could put her at serious risk of harm.” (Id.) For good cause shown, Plaintiff’s Motion is GRANTED, and Plaintiff Doe may proceed in this action with the pseudonym Jane Doe in place of her true identity. (ECF No. 2.)
Although filed as a single Motion, the Court takes the request to proceed anonymously and the request for a protective order in turn.
I. MOTION FOR LEAVE TO PROCEED ANONYMOUSLY
Generally, a complaint must state the names of all the parties. Fed. R. Civ. P. 10(a). However, the Court “may excuse plaintiffs from identifying themselves in certain circumstances.” Doe v. Porter, 370 F.3d 558, 560 (6th Cir. 2004). To determine whether a plaintiff’s privacy interests outweigh the presumption in favor of openness, the United States Court of Appeals for the Sixth Circuit has identified factors to consider, including:
(1) whether the plaintiffs seeking anonymity are suing to challenge governmental activity; (2) whether prosecution of the suit will compel the plaintiffs to disclose information ‘of the utmost intimacy’; (3) whether the litigation compels plaintiffs to disclose an intention to violate the law, thereby risking criminal prosecution; and (4) whether the plaintiffs are children.”
1

Ray v. Director, Ohio Department of Health, Not Reported in Fed. Supp. (2018) 2018 WL 8804858

Id. (citing Doe v. Stegall, 653 F.2d 180, 185-86 (5th Cir. 1981)). This case implicates the first two Porter factors.

Motion for Leave to Proceed Anonymously is GRANTED. (ECF No. 2.)

First, Plaintiff Doe is suing to challenge governmental activity. Specifically, she is suing to overturn Ohio’s policy prohibiting transgender persons from correcting the gender marker on their birth certificates to match their gender identity. Plaintiff alleges that Ohio’s policy violates her constitutional rights to equal protection, due process, and freedom of speech. (Compl. 22-26, ECF No. 1.) Because Ohio’s policy constitutes governmental activity, the first Porter factor weighs in favor of Plaintiff Doe proceeding anonymously.
Second, disclosure of Plaintiff Doe’s identity would equate to a disclosure of information “of the utmost intimacy.” Porter, 371 F.3d at 560 (citing Doe v. Stegall, 653 F.2d 180, 185-86 (5th Cir. 1981)). As Plaintiff asserts in her Motion, “Plaintiff’s transgender status[ ] ... places her in a small and highly stigmatized social group that reliably experiences retaliation when their identity is disclosed.” (Mot. for Protective Order 3, ECF No. 2.) This Court has previously discussed the ramifications of compelling identification of transgender persons in litigation with respect to minors. See Bd. Of Educ. Of the Highland Local Sch. Dist. v. U.S. Dep’t of Educ., No. 2:16-cv-524, 2016 WL 4269080, at *5 (S.D. Ohio Aug. 15, 2016) However, the Court also noted that “some courts have allowed non-minor transgender plaintiffs to proceed anonymously due to the social stigma associated with their gender identity.” Id. (collecting cases). Although minors may be particularly susceptible to retaliation, harassment, and social stigma due to their gender identity, non-minor transgender persons face many similar challenges. See, e.g., Jaclyn M. White Hughto, et al., Transgender Stigma and Health: A Critical Review of Stigma Determinants, Mechanisms, and Interventions, 147 Soc. Sci. & Med. 222 (demonstrating that transgender stigma limits opportunities and access to resources). Moreover, as the United States Court of Appeals for the Second Circuit recognized in Powell v. Schriver, “[t]he excrutiatingly [sic] private and intimate nature of transsexualism, for persons who wish to preserve privacy in the matter, is really beyond debate.” 175 F.3d 107, 111 (2d Cir. 1999) (citing Farmer v. Moritsugu, 163 F.3d 610, 611 (D.C. Cir. 1998)). Therefore, the second factor weighs heavily in favor of permitting Plaintiff Doe to proceed anonymously.
*2 In conclusion, the Court finds compelling reasons to protect Plaintiff Doe’s privacy and shield her from discrimination and harassment. Therefore, Plaintiff Doe’s

II. MOTION FOR PROTECTIVE ORDER
For good cause shown, the Court GRANTS Plaintiff Doe’s Motion for Protective Order. (ECF. No. 2.)
It is hereby ORDERED, pursuant to Federal Rules of Civil Procedure 26(c), 5.2(d) and (e)(1) that:
1. In all publicly-filed documents, Plaintiff Jane Doe shall only be identified as Jane Doe.
2. All documents filed with this Court that contain the full name of Plaintiff Jane Doe, or contain information that identifies her, directly or indirectly, shall be filed under seal. The filing party must also contemporaneously file a public version with any identifying information redacted.
3. Upon request, Plaintiff Jane Doe shall disclose her identity to counsel for Defendants. Plaintiff need only disclose information that is reasonably and in good faith calculated to aid Defendants in the preparation and/or defense of this case.
4. Counsel for Defendants may disclose Plaintiff Jane Doe’s identity to the Defendants, their agents, and to any experts retained in this case, but only to the extent the disclosure is reasonably and in good faith calculated to aid in the preparation and/or defense of this case.
5. Every individual to whom disclosure of Plaintiff Jane Doe’s identity is made shall read and be bound by this order. Counsel for Defendants shall ensure that persons to whom disclosure is made under paragraphs 3 and 4 above are aware of this Order.
6. Under no circumstance shall any party, or any other person, intentionally disclose Jane Doe’s identity without her counsel’s written consent.
7. Any allegations of abuse or violation of this order will be considered by the Court either for purposes of determining whether it should enter sanctions, including a contempt of court order or sanctions available under Federal Rules of Civil Procedure 26 and 37, such as dismissal and default judgment. If an
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allegation of abuse or violation of this Order is found, the Court may take disciplinary action upon appropriate parties.
8. This Order is subject to modification by the Court upon application of either party.

For the reasons set forth above, Plaintiff’s Motion for Protective Order and Leave to Proceed Anonymously is GRANTED. (ECF No. 2.)
IT IS SO ORDERED.

III. DISPOSITION

All Citations Not Reported in Fed. Supp., 2018 WL 8804858

3

 
 Ray v. McCloud, 507 F.Supp.3d 925 (2020)

507 F.Supp.3d 925 United States District Court, S.D. Ohio, Eastern
Division.
Stacie RAY, et al., Plaintiffs, v.
Stephanie MCCLOUD, Director, Ohio Department Health, et al., Defendants.
Case No. 2:18-cv-272 |
Filed 12/16/2020
Synopsis Background: Transgender individuals brought § 1983 action against Ohio state employees alleging that state policy prohibiting changes to sex marker on birth certificates to reflect transgender identity violated their substantive due process rights to informational privacy under Fourteenth Amendment, discriminated against them in violation of equal protection clause of Fourteenth Amendment, and compelled their speech in violation of First Amendment. Parties cross-moved for summary judgment.

Procedural Posture(s): Motion for Summary Judgment.
West Codenotes
Unconstitutional as Applied Ohio Rev. Code Ann. § 3705.15
Attorneys and Law Firms
*928 Freda J. Levenson, Elizabeth Bonham, Aclu of Ohio, Jennifer S. Roach, Cleveland, OH, David J. Carey, Thompson Hine LLP, Columbus, OH, Gabriel Arkles, Pro Hac Vice, Malita Picasso, Pro Hac Vice, American Civil Liberties Union, New York, NY, John Knight, Pro Hac Vice, American Civil Liberties Union, Kara N. Ingelhart, Pro Hac Vice, Lambda Legal Defense and Education Fund, Inc., Chicago, IL, Peter C. Renn, Pro Hac Vice, Lambda Legal Defense and Education Fund, Inc., Los Angeles, CA, Susan Jane Becker, Avon Lake, OH, for Plaintiffs.
Jason J. Blake, Albert J. Lucas, Calfee Halter & Griswold, Columbus, OH, for Defendants.

Holdings: The District Court, Michael H. Watson, J., held that:
action was both as-applied challenge to Ohio’s statutory scheme governing vital statistics and facial challenge to policy;
transgender individuals were quasi-suspect class entitled to intermediate scrutiny of their equal protection claim;
policy violated due process under strict scrutiny;
policy violated equal protection under intermediate scrutiny; and
policy violated equal protection even under rational basis review.
Plaintiffs’ motion granted; defendants’ motion denied.

OPINION AND ORDER
MICHAEL H. WATSON, JUDGE
Ohio is one of only two states that does not allow a transgender person to change the sex marker on their birth certificate. Stacie Ray (“Ray”), Basil Argento (“Argento”), Jane Doe (“Doe”), and Ashley Breda (“Breda,” collectively “Plaintiffs”) sue Stephanie McCloud1 (“McCloud”), in her capacity as Director of the Ohio Department of Health (“ODH”), Karen Sorrell (“Sorrell”), in her capacity as Chief of the Ohio Office of Vital Statistics, and Judith Nagy (“Nagy”), in her capacity as State Registrar of the Ohio Office of Vital Statistics (collectively “Defendants”) and ask this Court to find such a prohibition unconstitutional. ECF No. 1. Plaintiffs and Defendants have both moved for summary *929 judgment. ECF Nos. 69, 71.2 For the following reasons, the Court GRANTS Plaintiffs’ motion for summary judgment and DENIES Defendants’ motion for summary
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judgment.
I. BACKGROUND3
Plaintiffs are four transgender individuals born in Ohio who have been denied the ability to change the sex marker on their birth certificates to reflect their gender identities.
The Ohio Revised Code permits a person to correct a birth record that, among other things, “has not been properly or accurately recorded.” Ohio Rev. Code § 3705.15. No portion of the Ohio Revised Code prohibits using § 3705.15 to change the sex marker on a birth certificate. Other portions of Ohio’s statutory scheme governing vital statistics permits changes to a birth certificate to reflect adoptions and legal name changes. See Ohio Rev. Code §§ 3705.12, 3705.13.
Indeed, prior to 2016, Defendants permitted transgender individuals born in Ohio to change the sex marker on their birth certificates, if the transgender individuals obtained a court order, paid a processing fee, and completed an ODH-provided form. See Nagy Dep. 138–39, 150–152, ECF No. 55. At least ten transgender people born in Ohio successfully obtained sex-corrected birth certificates prior to 2016. Id. at 138–39.
Sometime in 2015, after consultation with ODH in-house counsel and the Ohio Governor’s office, ODH “re-reviewed” its birth certificate policy (“Policy”)4 and decided to no longer permit changes to the sex marker on Ohio birth certificates when the basis for that change was that the person was transgender. Id. at 129–34. Ohio continues to permit other changes to birth certificates (such as for adoption and legal name) as well as alterations to the sex field if the basis for the request is a mistake or where the physician observed atypical genitalia and records the sex as “U” for “undetermined” at birth. Id. at 65–66, 73–74; see also Ohio Rev. Code §§ 3705.12, 3705.13.
Plaintiffs challenge Defendants’ Policy and contend that it violates their substantive due process rights to informational privacy under the Fourteenth Amendment, discriminates against them in violation of the equal protection clause of the Fourteenth Amendment, and compels their speech in violation of the First Amendment. Compl., ECF No. 1. Defendants contend that there are no

constitutional violations or that the state’s justifications outweigh any violations. Defendants’ justifications for prohibiting sex marker changes on the basis of being transgender are to maintain the historical accuracy of their birth records and prevent fraud.
The Court previously issued an Opinion and Order addressing Plaintiffs’ substantive due process rights and denying Defendants’ motion to dismiss. Op. and Order, ECF No. 47.
II. STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows that there is no *930 genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The movant has the burden of establishing that there are no genuine issues of material fact, which may be accomplished by demonstrating that the nonmoving party lacks evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388–89 (6th Cir. 1993). To avoid summary judgment, the nonmovant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); accord Moore v. Philip Morris Cos., 8 F.3d 335, 340 (6th Cir. 1993). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In evaluating a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (stating that the court must draw all reasonable inferences in favor of the nonmoving party and must refrain from making credibility determinations or weighing evidence). Furthermore, the existence of a mere scintilla of evidence in support of the nonmoving party’s position will not be sufficient; there must be evidence on which the jury reasonably could find for the nonmoving party. Anderson,
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477 U.S. at 251, 106 S.Ct. 2505; see Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995); see also Matsushita, 475 U.S. at 587–88, 106 S.Ct. 1348 (finding reliance upon mere allegations, conjecture, or implausible inferences to be insufficient to survive summary judgment).
Here, the parties have filed cross-motions for summary judgment. Each party, as a movant for summary judgment, bears the burden of establishing that no genuine issue of material fact exists and that he or she is entitled to judgment as a matter of law. The fact that one party fails to satisfy that burden does not automatically indicate that the opposing party or parties has satisfied the burden and should be granted summary judgment on the other motion. In reviewing cross-motions for summary judgment, courts should “evaluate each motion on its own merits and view all facts and inferences in the light most favorable to the non-moving party.” Wiley v. United States, 20 F.3d 222, 224 (6th Cir. 1994). “The filing of cross-motions for summary judgment does not necessarily mean that the parties consent to resolution of the case on the existing record or that the district court is free to treat the case as if it was submitted for final resolution on a stipulated record.” Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991) (quoting John v. State of La. (Bd. of Trs. for State Colls. & Univs.), 757 F.2d 698, 705 (5th Cir. 1985)). The standard of review for cross-motions for summary judgment does not differ from the standard applied when a motion is filed by one party to the litigation. Taft Broad., 929 F.2d at 248.
III. ANALYSIS
Plaintiffs move for summary judgment and argue that Defendants’ Policy violates their constitutional rights under 42 U.S.C. § 1983. Mot., ECF No. 69. Defendants likewise move for summary judgment contending *931 that Ohio’s statutory scheme is constitutional. Mot., ECF No. 71. The Court will analyze Plaintiffs’ substantive due process right-to-privacy claim and equal protection claim before deciding the level of scrutiny to apply.
A. As-Applied vs. Facial Challenge As an initial matter, the Court must whether Plaintiffs’

lawsuit is best classified as an as-applied or facial challenge. See Op. and Order 9–13, ECF No. 47.
Defendants characterize Plaintiffs’ challenge as a facial challenge to Ohio’s statutory scheme governing vital statistics. See Ohio Rev. Code § 3705.01 et seq. Plaintiffs, in turn, argue that they bring both as-applied and facial challenges. In other words, because the statute itself is silent as to whether a transgender person can change the sex marker on their birth certificate, Plaintiffs contend they challenge the statute only as it is applied to them, but because Defendants’ Policy explicitly denies changing the sex marker for transgender persons, they challenge the Policy itself (i.e., Defendants’ interpretation of the silent statute as it relates to all transgender people) as facially unconstitutional.
Facial challenges, at their core, contend that every use and application of a statute is unconstitutional as it is written. See Reno v. Flores, 507 U.S. 292, 301, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (“To prevail in such a facial challenge, [plaintiffs] must establish that no set of circumstances exists under which the [statute] would be valid.” (internal citations, quotation marks, and alterations omitted)). Because Plaintiffs do not challenge each and every application of Ohio’s vital statistics statutory scheme, but do challenge each and every application of Defendants’ Policy, the Court agrees that Plaintiffs bring either an as-applied challenge to the statute or a facial challenge to Defendants’ Policy. Cf. Winston v. City of Syracuse, 887 F.3d 553, 559 (2d Cir. 2018) (“A facial challenge is an attack on a statute [or policy] itself as opposed to a particular application.” (emphasis added) (internal citations omitted)). Indeed, because the Policy represents Defendants’ interpretation of the statute in a particular context—which results in the statute being consistently applied the same way in that context—the challenges are two sides to the same coin.
B. Substantive Due Process Right to Privacy
1. Review of this Court’s Opinion and Order on Defendants’ Motion to Dismiss
This Court previously found that forced disclosure of an individual’s transgender status could subject them to risk of bodily harm under Kallstrom v. City of Columbus, 136
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Ray v. McCloud, 507 F.Supp.3d 925 (2020)
F.3d 1055 (6th Cir. 1998). Specifically, that:
“[W]here the release of private information places an individual at substantial risk of serious bodily harm, possibly even death, from a perceived likely threat, the ‘magnitude of the liberty deprivation ... strips the very essence of personhood.’ ” Kallstrom, 136 F.3d at 1064 (emphasis added) (quoting Doe v. Claiborne, 103 F.3d 495, 506–07 (6th Cir. 1996)).
Op. and Order 19, ECF No. 47.
Likewise, this Court found under Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998), that Defendants’ Policy required Plaintiffs to disclose highly personal and private information that is entitled to remain confidential. As explained previously, Bloch found that:
[S]uch disclosure [of highly personal and private information] violated the plaintiff’s right to privacy because “sexuality *932 and choices about sex, in turn, are interests of an intimate nature which define significant portions of our personhood. Publicly revealing information regarding these interests exposes an aspect of our lives that we regard as highly personal and private.” Id. at 685.
Op. and Order 21, ECF No. 47.
This Court went on to agree with the United States Court of Appeals for the Second Circuit’s decision that found forced disclosure of a transgender individual’s status as transgender was highly personal sexual information that was protected by the due process clause’s informational right to privacy. See id.; id. at 23 (“the Court agrees with the Second Circuit that “[t]he excru[c]iatingly private and intimate nature of [being transgender], for persons who wish to preserve privacy in the matter, is really beyond debate” (internal citations omitted)).
Thus, this Court concluded that:
[U]nder both Kallstrom and Bloch, Plaintiffs have adequately alleged that Defendants’ Policy of refusing to change birth certificates to reflect gender identity implicates a release of personal information that is of a “sexual, personal, and humiliating nature” and “could lead

to bodily harm,” resulting in a

violation

of

Plaintiffs’

informational right to privacy.

Op. and Order 19, 23–24, ECF No. 47 (footnote and internal citations omitted).
This Court further found that Defendants’ Policy justifications had to survive strict scrutiny to survive the substantive due process challenge, and Defendants had failed to provide compelling state interests for the Policy that were narrowly tailored in their motion to dismiss. Id. at 29–32.
Although Defendants attempt to re-argue the legal determinations previously made by this Court, the Court will not revisit its legal analysis highlighted above and discussed in greater detail in its previous Opinion and Order, ECF No. 47. Instead, on summary judgment the Court will analyze only whether Plaintiffs have provided sufficient evidence that Defendants’ Policy infringes on their informational right to privacy and weigh that evidence against any evidence proffered by Defendants to support a compelling state interest that is narrowly tailored.

2. Plaintiffs’ Evidence
On summary judgment, Plaintiffs have presented evidence that Defendants’ Policy has compromised their safety, reveals their intimate personal information, and could lead to future bodily harm if continued to be enforced. Pls.’ Mot. Summ. J. 6–9, ECF No. 69.
Ray’s forced disclosure caused her to both experience threats and have her intimate personal information revealed. Ray testified that when she started a new job, she had to show her birth certificate to a human resources (“HR”) professional in a room with ten to fifteen new colleagues. Ray Dep. 119–20, ECF No. 67. HR then questioned her, loudly enough for everyone to hear, as to why the gender on her birth certificate and driver’s license did not match. Id. at 112–13. Ray’s co-workers harassed her as a result of this forced disclosure—they called her a “freak,” and one co-worker threatened to “beat [her] ass” if she used a woman’s restroom. Id. at 114.
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Similarly, Breda had to show her birth certificate to an employer and was verbally harassed as a result of the forced disclosure of her intimately personal information. HR told her that she would “never be a woman” and that she would “always be a man in God’s eyes.” Breda Dep. 50, ECF No. 65. HR also disclosed that Breda was transgender to other employees and word quickly spread from there. Id. at 53. After *933 the forced disclosure to the loose-lipped HR person, Breda’s supervisors misgendered her, made comments about her genitalia, and avoided working directly with her. Id. at 53–55.
Argento testified about the psychological toll of the forced disclosure of very private information. He explained that “it’s a lot of times dehumanizing because I’m telling something very personal about myself that I don’t want to be telling a stranger.” Argento Dep. 125–26, ECF No. 64.
Doe faced public humiliation and scrutiny because of her forced disclosure. For example, she was publicly humiliated at the Social Security Administration when attempting to correct her sex with that agency. Doe Dep. 123–24, ECF No. 66. The Clerk loudly, and in front of many people, refused to permit her to change the sex, despite Doe showing the Clerk a copy of the Social Security Policy permitting her to do so. Id. at 124. Doe described that experience at the Social Security office as “awful” and that she “ran out of that place in tears” and “sat in the parking lot in [her] car for about forty-five minutes crying.” Id. at 125.
Plaintiffs’ expert also testified about how being forced to disclose documents with the wrong sex listed leads some transgender individuals to not pursue jobs, services, or opportunities because they are fearful of pushback and humiliation. Gordon Dep. 207–08, ECF No. 58 (“when people have non-matching documents, that can expose them to extra scrutiny”).
Finally, it is not just Plaintiffs’ own experiences that have caused them to fear disclosing their status but also a broader reality that, unfortunately, many transgender individuals do face a heightened risk of “discrimination, harassment, and violence because of their gender identity.” See e.g., Whitaker by Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1051 (7th Cir. 2017); M.A.B. v. Bd. of Educ. of Talbot Cty., 286 F. Supp. 3d 704, 720 (D. Md. 2018) (noting that transgender people suffer “very high rates of violence” due to their status).5 A 2015 survey revealed that 36% of

transgender people in Ohio who showed identification that did not match their sex presentation were harassed, denied benefits or services, asked to leave a place, or assaulted. See National Center for Transgender Equality, 2015 U.S. Transgender Survey: Ohio State Report 3 (2017), https://bit.ly/2QyKNHF.6 Plaintiffs’ expert testified to this very real and heightened risk of harm as well. See Ettner Dep. 228–29, ECF No. 56 (giving an example of how a forced disclosure of a mismatched birth certificate at a workplace led to a couple having feces spread on their desk, petitions circulated against one of them to prohibit use of the female restroom at work, their brake lines cut, and death threats made against them).
In sum, Plaintiffs each testified that they have experienced threats of harm or have been humiliated and harassed when their highly personal transgender status was forcibly disclosed. And as this Court’s previous Opinion and Order held, either a risk of bodily harm or forced revelation of highly personal information is sufficient evidence to implicate their substantive due process rights under Kallstrom and Bloch.
*934 Defendants’ arguments in response are unavailing. First, Defendants argue that Plaintiffs have not introduced evidence showing they have been harmed after forced disclosure of their birth certificates or that they were sufficiently fearful of harm. See Defs.’ Mot. Summ. J. 9–14, ECF No. 71. Let the Court reiterate, requiring Plaintiffs to actually be harmed before having a cognizable claim would not only be legally incorrect, it would be an untenable proposition. See Op. and Order 19, ECF No. 47 (“Kallstrom does not require courts to wait until plaintiffs are actually assaulted, or worse, to recognize “a very real threat to [transgender individuals’] personal security and bodily integrity” upon disclosure of their status. See Kallstrom, 136 F.3d at 1063.”). Moreover, the inquiry is not limited solely to whether past forced disclosure subjected Plaintiffs to a risk of bodily injury, it is also whether continued forced disclosure is likely to put them at risk of bodily harm in the future as well. Plaintiffs and their experts testified to that heightened risk of harm transgender people face when forced to disclose. See Ray Dep. 115, 119–20, ECF No. 67; Argento Dep. 125–26, ECF No. 64; Breda Dep. 118–20, ECF No. 65; Doe Dep. 124–25, ECF No. 66; see also Ettner Dep. 151, 189–92, 205–206, ECF No. 56; Ettner Rep. 43–45, ECF No. 69-6; Gorton Dep. 206–07, ECF No. 58.
Second, Defendants argue that because Plaintiffs are proud of and have disclosed their transgender status to
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Ray v. McCloud, 507 F.Supp.3d 925 (2020)
some people that Plaintiffs are therefore not humiliated by the forced disclosure of their birth certificates or that their information has no right to remain private.7 This argument likewise fails. The fact that Plaintiffs are proud of their transgender status and have shared such information on their personal social media accounts or with friends and family in no way negates their right to not be forced to disclose such private and personal information except on their own terms and in environments they chose. As Argento testified, even if he was not fearful of bodily harm from government officials at the Department of Motor Vehicles when he was forced to disclose his birth certificate, there is still “a lot of anxiety about how [he’ll] be treated ... it’s a lot of times dehumanizing.” Argento Dep. 126:2–15, ECF No. 64. Plaintiffs do not lose their informational right to privacy by choosing to share the private information at certain times with certain people.
Accordingly, the Court finds that Plaintiffs have submitted sufficient evidence to demonstrate that they have a substantive due process right to informational privacy that protects against the forced disclosure of the unchanged sex marker on their birth certificates. See Op. and Order 23–24, ECF No. 47.
The Court will proceed to discuss Plaintiffs’ equal protection claim before discussing Defendants’ justifications because their justifications are the same for both claims.
C. Equal Protection The Court did not address Plaintiffs’ equal protection claim in its Opinion and Order on Defendants’ motion to dismiss. However, the Court will address this claim on summary judgment as an alternative basis on which Plaintiffs’ seek relief.
Plaintiffs argue that Defendants’ Policy discriminates against Plaintiffs in violation of the equal protection clause of the Fourteenth Amendment by categorically denying transgender individuals the opportunity *935 to have a birth certificate that reflects how they present to society but allowing others the same right. Pls.’ Mot. Summ. J. 10, ECF No. 69. Plaintiffs also argue Defendants’ Policy discriminates against transgendered people in that it allows other historical information—such as birth name or parents—to be changed but prohibits transgender individuals the ability to change the sex

marker on their birth certificates. See Ohio Rev. Code §§ 3705.12, 3705.13.
The equal protection clause of the Fourteenth Amendment provides that “[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. This protection extends to protection against “intentional and arbitrary discrimination” by the State. See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curium). Put differently, “state action is unconstitutional when it creates ‘arbitrary or irrational’ distinctions between classes of people out of ‘a bare ... desire to harm a politically unpopular group.’ ” Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586, 607 (4th Cir. 2020) (internal citations omitted).
To prevail on their equal protection challenge, Plaintiffs must show that they were treated differently than other similarly situated individuals. F. V. v. Barron, 286 F. Supp. 3d 1131, 1140 (D. Idaho 2018). Then, the Court must examine which level of scrutiny applies to review Defendants’ justifications before examining the same. See Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267, 285 (W.D. Pa. 2017) (“Where the state by its conduct intentionally treats one person differently from another, or one group of people differently from another group, when they are similarly-situated in all other material respects, the governmental classification must be justified by a standard related to its nature.”).
Here, Defendants’ Policy treats Plaintiffs differently than people who have changed their birth parents or name. Assuming for the sake of argument,8 that Plaintiffs’ sex was correctly recorded at the time of birth, Plaintiffs are similarly situated to people who are allowed to change their accurately recorded birth parents or name in that those people, like Plaintiffs, had information accurately recorded at the time of their birth and have a court order with respect to the information they are trying to change. For example, adoptive parents can amend an adopted child’s birth certificate to reflect the adopted parents’ names, and individuals who have legally changed their names can have a birth certificate modified to reflect that change, but Plaintiffs are not afforded the same ability to change their birth certificates to align with their gender identities. See Barron, 286 F. Supp. 3d at 1141 (finding that Idaho’s similar laws and policies violated the equal protection clause when it “g[a]ve certain people [such as adopted people] access to birth certificates that accurately reflect who they are, while denying transgender people, as a class, access to birth certificates that accurately reflect
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Ray v. McCloud, 507 F.Supp.3d 925 (2020)
their gender identity”). Thus, the Court finds that Defendants’ Policy treats *936 transgendered people differently than similarly situated Ohioans.
D. Levels of Scrutiny The question for both the substantive due process and equal protection claims, now, is whether Defendants’ justifications for the invasion of Plaintiffs’ privacy interest and differential treatment between Plaintiffs and other persons seeking to change birth certificate information, respectively, satisfies the applicable level of constitutional scrutiny.
There are three categories of scrutiny that apply to constitutional challenges of state law. The lowest level of scrutiny is rational basis review. That requires “[a]t a minimum, a statutory classification [to] be rationally related to a legitimate government purpose.” Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). In the middle is intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex, and requires that the government’s challenged action be “substantially related to an important government objective.” Id. Last, at the other end of the spectrum is strict scrutiny. If the state action targets a race, national origin, or affects a fundamental right, it is subject to strict scrutiny and cannot be upheld absent a showing by the State that the law is narrowly tailored to further a compelling interest. United States v. Brandon, 158 F.3d 947, 959–60 (6th Cir. 1998).
1. Level of Scrutiny for the Informational Right to Privacy Claim
As this Court has already found in its previous Opinion and Order, because Defendants’ Policy infringes on Plaintiffs’ fundamental right to privacy, it is subject to strict scrutiny. See Op. and Order 29, ECF No. 47; Kallstrom, 136 F.3d at 1064. Under this standard, it is Defendants’ burden to demonstrate their Policy is narrowly tailored to achieve a compelling government interest and that they have attempted to use less intrusive alternatives to achieve those interests. Johnson v. California, 543 U.S. 499, 505, 125 S.Ct. 1141, 160

L.Ed.2d 949 (2005).
2. Level of Scrutiny for the Equal Protection Claim
The level of scrutiny applicable to Plaintiffs’ equal protection claim, however, is not as straightforward. Plaintiffs argue that this Court should find that heightened, intermediate scrutiny applies because Defendants’ Policy targets a class that has historically been subjected to discrimination. Defendants disagree. There is no binding precedent from the United States Supreme Court9 or the Sixth Circuit regarding whether transgender people are a quasi-suspect class.
The Supreme Court applies the following four factors to determine whether a new classification warrants heightened scrutiny:
(1) whether the class has been historically “subjected to discrimination,” Lyng v. Castillo, 477 U.S. 635, 638, 106 S. Ct. 2727, 91 L. Ed. 2d 527 (1986); (2) whether the class has a defining characteristic that “frequently bears no relation to ability to perform or contribute to society,” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440-41, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985); (3) whether the class exhibits “obvious, immutable, *937 or distinguishing characteristics that define them as a discrete group,” Lyng, 477 U.S. at 638, 106 S.Ct. 2727; and (4) whether the class is “a minority or politically powerless,” id.
Bd. of Educ. of the Highland Loc. Sch. Dist. v. United States Dept. of Educ., 208 F. Supp. 3d 850, 873 (S.D. Ohio 2016).
Upon review, the Court finds that transgender individuals are a quasi-suspect class entitled to heightened scrutiny. First, as a colleague within this district recently noted, “there is not much doubt that transgender people have historically been subject to discrimination including in education, employment, housing, and access to healthcare.” Bd. of Educ., 208 F. Supp. 3d at 874; see also Flack v. Wis. Dep’t of Health Servs., 328 F. Supp. 3d 931, 951–53 (W.D. Wis. 2018) (discussing the same history of discrimination and harassment transgender people face); Grimm, 972 F.3d at 611–12 (citing statistics that “transgender people frequently experience harassment in places such as schools (78%), medical settings (2%), and retail stores (37%)” and are “more likely to be the victim of violent crimes” such that in 2009 Congress extended
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the definition of hate crimes to include crimes based on gender identity (internal citations omitted)).
Second, transgender people are no less capable of contributing value to society than other people. See M.A.B., 286 F. Supp. 3d at 720 (“The Court is not aware of any argument suggesting that a transgender person ... is any less productive than any other member of society.”); Adkins v. City of New York, 143 F. Supp. 3d 134, 139 (S.D.N.Y. 2015) (finding the same).
Third, transgender people have common, immutable characteristics that “define them as a discrete group,” see Bd. of Educ., 208 F. Supp. 3d at 874, primarily in that “their gender identity does not align with the gender they were assigned at birth.” M.A.B., 286 F. Supp. 3d at 721.
Fourth, transgender people constitute a minority lacking in political power. As the Grimm court noted, “approximately 0.6% of the adult population in the United States” are transgender and “transgender persons are underrepresented in every branch of government.” Grimm, 972 F.3d at 613. The Court finds that all four factors support finding that transgender people are entitled to heightened protection under the Equal Protection Clause as a quasi-suspect class.
This Court is not alone in concluding that transgender people are part of a quasi-suspect class subject to intermediate scrutiny review under the equal protection clause. See Bd. of Educ., 208 F. Supp. 3d at 872 (finding that “transgender individuals are a quasi-suspect class because discrimination against them is discrimination on the basis of sex”; and that “[t]he nature of [transgender] discrimination is the same; it may differ in degree but not in kind, and discrimination on that basis is a form of sex-based discrimination that is subject to heightened scrutiny under the Equal Protection Clause”); M.A.B., 286 F. Supp. 3d at 721 (“classifications based on transgender status are per se entitled to heightened scrutiny because transgender status itself is at least a quasi-suspect class”); Flack, 328 F. Supp. 3d at 953 (discussing the challenges transgender people face and noting that “other than certain races, one would be hard-pressed to identify a class of people more discriminated against historically or otherwise more deserving of the application of heightened scrutiny when singled out for adverse treatment, than transgendered people”); Grimm v. Gloucester Cty. Sch. Bd., 302 F. Supp. 3d 730, 746–50 (E.D. Va. 2018) (“classifications based on transgender *938 status are per se entitled to heightened scrutiny”), aff’d 972 F.3d 586 (4th Cir. 2020); Barron, 286 F. Supp. 3d at 1145 (same);

Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267, 288 (W.D. Pa. 2017) (same); Norsworthy v. Beard, 87 F. Supp. 3d 1104, 1119–21 (N.D. Cal. 2015) (same); Adkins v. City of New York, 143 F. Supp. 3d 134, 139–40 (S.D.N.Y. 2015) (same); see also Love v. Beshear, 989 F. Supp. 2d 536, 545 (W.D. Ky. 2014) (rejecting the argument that sexual orientation discrimination is not entitled to heightened scrutiny because the Sixth Circuit caselaw relied upon used a line of cases overruled by the United States Supreme Court in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003)).
In arguing the contrary, Defendants state only that the Supreme Court and the Sixth Circuit have not found transgender people to constitute a quasi-suspect class and that the other out-of-circuit courts to have so found are not binding on this Court. See Defs.’ Mot. Summ. J. 2–32, ECF No. 71. But the lack of binding precedent does not require this Court to only apply rational basis review, nor does it prevent this Court from relying on well-reasoned opinions of non-binding courts to inform its opinion here.
Accordingly, the Court finds that intermediate scrutiny applies. Having concluded as such, it is Defendants’ burden under intermediate scrutiny to demonstrate that their Policy “serves ‘important governmental objectives and that the discriminatory means employ[ed]’ are ‘substantially related to the achievement of those objectives.’ ” United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). Moreover, those justifications must be genuine, not hypothesized or invented post hoc in response to litigation.” id.
E. Defendants’ Justifications The Court examines Defendants’ justifications under strict scrutiny for the due process violation and intermediate scrutiny as it pertains to the equal protection violation.
Defendants first contend that “the accuracy of Ohio’s birth certificate records is a substantial interest of the State.” Resp. 19, ECF No. 73. They argue that Ohio’s birth records confirm not only a person’s birth but are also used to verify that person’s death, and thus, the accuracy of the records are important. Defs.’ Mot. Summ. J. 30–31, ECF No. 71; see also Ohio Rev. Code § 3705.27. The Court does not disagree that accurate records are important, but it would find this argument more
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persuasive if Defendants could explain why permitting someone who is adopted to change the names of their parents on their birth certificate to reflect people other than the individuals identified on the document at birth does not affect the historical accuracy of the document and vital statistics, but changing a sex marker does.
Moreover, the idea that the State of Ohio has a true interest in maintaining historically accurate records is undermined by the fact that Ohio permitted transgender people to change the sex marker on their birth certificates until 2016. Defendants have offered no evidence to explain why “historical accuracy” has only recently become a State interest, or why it was necessary to change its Policy to further that interest. Given this, Defendants have failed to show that their Policy is substantially related to vital statistic preservation and certainly failed to show the Policy is the least restrictive means of achieving that purported goal.
Next, Defendants invoke fraud prevention as a justification for their Policy. They argue it is “well-known” that criminals routinely use Ohio birth certificates to perpetuate *939 fraud,” and “Defendants are in constant contact with other agencies to verify the accuracy of a birth record as part of a criminal investigation.” Resp. 19, ECF No. 73. But the fact that criminals currently perpetuate fraud using birth certificates generally does not require the Court to therefore conclude that allowing transgender individuals to change their sex marker will lead to more fraud any more than allowing a person’s legally changed name to be put on the birth certificate would. See Nagy Aff., ECF No. 71-1 (describing generally how fraud is perpetrated in Ohio using birth certificates). What Defendants fail to connect is how criminals will use the change of a sex marker on a birth certificate to perpetuate fraud and why this change will result in fraud, let alone how this change will prevent Defendants from verifying the accuracy of birth records as part of a criminal investigation. Likewise, Defendants have not provided the Court with any evidence that the 2016 Policy about-face was made because there was an increase in fraudulent uses of birth certificates corresponding to someone’s change of their sex marker.
Again, the Court does not doubt that fraud prevention is an important or even compelling government interest, but Defendants have failed to justify how their Policy’s total prohibition on changing sex markers furthers this goal in the least restrictive means10 possible, or even that this Policy is substantially related to this goal. Indeed,

employing a similar process used prior to 2016 would seem to still achieve those goals. See Nagy Dep. 48–52, 62–65, 138–39, 150–52; ECF No. 55; Ex. A Defs.’ Resp. Interrog. No. 3 and Supp’l Resp., ECF No. 69-2 (describing a process which entailed a court order authorizing the correction, a nominal processing fee, and a completed ODH-provided form, then locking the transgender individual’s birth certificate in a vault, no longer accessible to the public).
Finally, Defendants’ argument that a judicial ruling on this issue will undermine the accuracy of vital statistics or fraud prevention is a red herring. See Defs.’ Mot. Summ. J. 31–32, ECF No. 71. Nothing in this Opinion prevents Defendants from creating and employing procedural systems and safeguards similar to the ones they have used previously to process sex marker changes, name changes, or adoptive parent changes. All this Court is finding is that a blanket prohibition against transgender people changing their sex marker is unconstitutional.
At bottom, the Court finds that Defendants’ proffered justifications are nothing more than thinly veiled post-hoc rationales to deflect from the discriminatory impact of the Policy. And post hoc rationales do not suffice under either strict or intermediate scrutiny.
From the Court’s estimation, however, Defendants’ Policy justifications do not even survive rational basis review because there is no logical connection between the Policy and proffered justifications. Instead, the testimony shows that after Defendants received a request to change a sex marker on a birth certificate sometime in 2015, the request “went up the chain,” and upon “re-review” of the law they decided to no longer permit sex *940 marker changes when the reason was because the requestor was transgender. Nagy Dep. 108–10, ECF No. 55. This Policy resembles the sort of discrimination-based legislation struck down under the equal protection clause in Romer v. Evans as nothing more than a Policy “born of animosity toward the class of person affected” that has “no rational relation to a legitimate government purpose.” 517 U.S. 620, 634, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). Indeed, when an almost identical policy (interpreting a similar neutral statute) in Idaho was challenged, the state defendants conceded that “no rational basis exist[ed] to support the categorical denial of requests to amend sex-assigned birth on the basis of correcting it to match one’s gender identity.” Barron, 286 F. Supp. 3d at 1141 (the district court agreed there was no rational basis for the policy but ultimately found that intermediate scrutiny applied to the transgender plaintiffs’ equal protection
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claim). Although rational basis review is deferential, “it is not meant to be toothless.” Schweiker v. Wilson, 450 U.S. 221, 234, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981). “Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.” Romer, 517 U.S. at 633, 116 S.Ct. 1620 (citations and quotations omitted). Defendants’ Policy prohibits transgender people the ability to change the sex on their birth certificate in an arbitrary and unequal manner. Thus, although the Court finds that transgender people are a quasi-suspect class entitled to heightened scrutiny protections under the equal protection clause, even under rational basis review Defendants’ Policy does not pass constitutional muster.

For the foregoing reasons, the Court GRANTS Plaintiffs’ motion for summary judgment, ECF No. 69, and DENIES Defendants’ motion for summary judgment, ECF No. 70 (publicly available version at ECF No. 71). The Court finds Defendants’ Policy to be unconstitutional and hereby PERMANENTLY ENJOINS Defendants from enforcing their Policy.
IT IS SO ORDERED.
All Citations
507 F.Supp.3d 925

IV. CONCLUSION11

Footnotes

1

Defendants substitute McCloud pursuant to Federal Rule of Civil Procedure 25(d).

2

Defendants have filed a sealed version of their motion for summary judgment and a publicly available redacted

version. ECF Nos. 70, 71. The Court has reviewed both filings but will cite only to information contained in the public

version located at ECF No. 71.

3

The Court will discuss the parties’ evidence in greater detail in its analysis.

4

Defendants do not characterize it as a Policy; rather, they frame the issue as an interpretation of the Ohio statute.

See Defs.’ Resp. in Opp. 4, ECF No. 73. The Court recognizes the distinction Defendants make but will nonetheless

refer to it as a Policy rather than their interpretation of Ohio’s statutory framework for ease of reference.

5

The Court notes that it incorrectly cited a statistic from this case in its previous Opinion and Order, but that the

overarching point is the same—transgender people experience high rates of violence because of their transgender

status.

6

The

complete

2015

U.S.

Transgender

Survey

is

available

at

https://transequality.org/sites/default/files/docs/usts/USTS-Full-Report-Dec17.pdf.

7

Defendants also resurrect their argument that a birth certificate is a public record in Ohio, and, thus, there is no

privacy being violated. This Court has already dispelled with this argument and will not revisit it again. See Op. and

Order 24–26, ECF No. 47.

8

The parties and their experts dispute whether sex and gender identity are the same thing or distinct categories. The

Court need not decide this issue, however, because even assuming solely for the sake of argument that Defendants’

position is right and the sex marker on a birth certificate identifies only biological sex at the time of birth, distinct

from gender identity, and thus is “accurately recorded at birth” under the statute, Ohio allows changes to other

birth certificate information that was “accurately recorded at birth.”

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Ray v. McCloud, 507 F.Supp.3d 925 (2020)

9

Although in a different context, the Supreme Court recently found that discrimination against transgender

individuals was discrimination on the basis of sex in violation of Title VII of the Civil Rights Act of 1964. See Bostock v.

Clayton Cty., ––– U.S. ––––, 140 S. Ct. 1731, 1743, 1754, 207 L.Ed.2d 218 (2020).

10 For example, Nagy’s affidavit describes a notation put on a birth certificate with a legal name change and explains that Ohio is able to record and track that information with a corresponding file reference number. Nagy Aff. ¶¶ 21–26, ECF No. 71-1. But Defendants do not explain why a similar process is unavailable for tracking sex marker changes. Although the Court foresees a problem with an explicit “sex marker change” designation, including a file reference number on any changed birth certificate could perhaps be another narrowly tailored means of achieving the same goals.

11 Having addressed Plaintiffs’ claims under the Fourteenth Amendment in their favor, the Court declines to analyze their compelled speech claim under the First Amendment.

11