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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

STACIE RAY, et al. 

Plaintiffs, 

vs. 

LANCE HIMES, et al. 

Defendants. 

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 CASE NO.: 2:18-cv-00272-MHW-CMV 

JUDGE MICHAEL WATSON 

MAGISTRATE JUDGE CHELSEY 

VASCURA 

DEFENDANTS’ MOTION TO DISMISS 

PURSUANT TO FED. R. CIV. P. 12(b)(6) 

Pursuant to Fed. R. Civ. P. 12(b)(6), 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”), move to dismiss the Complaint of Plaintiffs Stacie 

Ray, Basil Argento, Jane Doe, and Ashley Breda (collectively “Plaintiffs”). 

As set forth more fully in Defendants’ memorandum in support, which Defendants 

incorporate by reference, Plaintiffs’ Complaint fails to state a claim upon which relief can be 

granted and therefore must be dismissed in its entirety. 

Dated: July 6, 2018 Respectfully submitted, 

/s/ Kimberly Moses 

KIMBERLY MOSES (0029601) 

ALBERT J. LUCAS (0007676) 

JASON J. BLAKE (0087692) 

CALFEE, HALTER & GRISWOLD LLP 

1200 Huntington Center 

41 S. High Street 

Columbus, Ohio 43215 

Telephone: (614) 621-1500 

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Fax: (614) 621-0100 

kmoses@calfee.com 

alucas@calfee.com 

jblake@calfee.com 

Attorneys for Defendants 

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4814-3557-2074, v. 10

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

STACIE RAY, et al. 

Plaintiffs, 

vs. 

LANCE HIMES, et al. 

Defendants. 

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 CASE NO.: 2:18-cv-00272-MHW-CMV 

JUDGE MICHAEL WATSON 

MAGISTRATE JUDGE CHELSEY 

VASCURA 

MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS 

PURSUANT TO FED. R. CIV. P. 12(b)(6) 

I. INTRODUCTION 

Ohio birth certificates record the sex of a child as reported at birth. The circumstances 

under which a person can correct the sex marker on his or her birth certificate, or update other 

information reported and recorded on the Ohio-issued birth certificates, is governed by a detailed 

statutory regime set forth in Ohio Rev. Code § 3705.01 et seq. Ohio’s legislature was well within 

its authority when it defined the contours of Ohio’s birth-record laws. Birth certificates serve an 

important purpose and Ohio has a substantial interest in ensuring their accuracy, including an 

accurate record of a person’s sex as reported at birth. 

Plaintiffs seek to change the sex recorded on their birth certificates and challenge the 

constitutionality of Ohio law, which does not provide a mechanism to modify records as Plaintiffs 

seek. Specifically, Ohio law allows a person to correct inaccurately reported information in a birth 

record, including inaccurate information regarding a person’s “sex” at birth. But Plaintiffs do not 

argue that their “sex” was inaccurately reported at birth. Rather, Plaintiffs argue that Ohio law is 

unconstitutional because it does not allow them to change the “sex” designation on their birth 

certificates to “accurately reflect their gender identity,” which “does not match their sex assigned 

at birth.” See Doc. 1 at ¶¶ 1, 19. But Ohio birth certificates do not record gender identity, and 

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Plaintiffs have no constitutional right to change their birth certificates in the manner they request. 

Thus, the Complaint fails to state a claim and should be dismissed for numerous reasons. 

First, Ohio’s recording of a child’s sex at birth on the birth certificate does not constitute 

government-compelled speech and therefore cannot support a First Amendment challenge. 

Indeed, the birth certificate is governmental speech that is a historical reflection of what was 

reported at the time of a child’s birth, not an opinion, objectionable viewpoint, or ideology. 

Second, Plaintiffs’ Due Process claim, based on “informational privacy,” also fails. Ohio’s 

birth certificates are public records, and public records cannot form the basis for an informational 

privacy claim. Moreover, Plaintiffs have failed to allege a recognized fundamental right that would 

entitle them to relief under the Due Process Clause. 

Third, Plaintiffs’ Equal Protection claim fails as a matter of law because the challenged 

law is facially neutral—that is, Plaintiffs allege no disparate treatment—and Plaintiffs have not 

plausibly alleged the requisite discriminatory intent for a disparate-impact claim. Also, because 

Plaintiffs are not part of a protected class, Ohio’s birth-record laws must be analyzed under rational 

basis review—a threshold that the law easily exceeds. Even if transgender people are treated as a 

protected class subjected to heightened scrutiny, Ohio has a substantial interest in ensuring the 

accuracy of its birth records, so any equal protection claim must fail. 

The statutory scheme enacted by Ohio’s legislature regarding birth certificates is, like the 

laws in all 50 states, a result of careful state-specific policy considerations. The proper forum for 

Plaintiffs to address this issue is in the state legislature, where competing state interests and policies 

can be fully vetted and tailored to best serve the needs of all Ohioans. As discussed more fully 

below, the Court should dismiss Plaintiffs’ Complaint in its entirety. 

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II. BACKGROUND 

Plaintiffs are four transgender individuals who seek to change the “sex” designation on 

their birth certificates. See Doc. 1, passim. According to Plaintiffs, Defendants “enforce[] a policy 

and practice that categorically refuses to correct the gender marker on transgender people’s birth 

certificate to match their gender identity....” Doc. 1 at ¶ 41. Although Plaintiffs characterize their 

challenge as one involving the state’s “policy and practice,” this lawsuit actually presents a facial 

challenge to Ohio Rev. Code §§ 3705.15 and 3705.22, the laws governing corrections of Ohioissued birth certificates. 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. See In re Declaratory Relief for Ladrach, 513 N.E.2d 828, 831 (Ohio Ct. Com. Pl. 

1987) (holding that the birth record statute is a “correction” only statute and cannot be used to 

modify the sex designation on a person’s birth certificate except where the sex marker was 

inaccurately reported or recorded). 

A. Ohio Statutes Allow Corrections To Birth-Record Mistakes Only In Certain 

Circumstances. 

Two Ohio statutes allow birth-record errors to be corrected. Ohio Rev. Code § 3705.15 

allows probate courts to issue an order directing the Ohio Department of Health to correct birth 

record information that “has not been properly and accurately recorded”: 

Whoever claims to have been born in this state, and whose registration of birth is 

not recorded, or has been lost or destroyed, or has not been properly and accurately 

recorded, may file an application for registration of birth or 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. If the 

person is a minor the application shall be signed by either parent or the person’s 

guardian. 

(A) An application to correct a birth record shall set forth all of the available 

facts required on a birth record and the reasons for making the application, and shall 

be verified by the applicant.... The application shall be supported by the affidavit 

of the physician or certified nurse-midwife in attendance. If an affidavit is not 

available, the application shall be supported by the affidavits of at least two persons 

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having knowledge of the facts stated in the application, by documentary evidence, 

or by other evidence the court deems sufficient. 

Ohio Rev. Code § 3705.15(A) (emphasis supplied). 

 Ohio Rev. Code § 3705.22 also authorizes the Ohio Department of Health to correct birthcertificate errors, where supported by appropriate evidence: 

Whenever it is alleged that the facts stated in any birth, fetal death, or death record 

filed in the department of health are not true, the director [of the Ohio Department 

of Health] may require satisfactory evidence to be presented in the form of 

affidavits, amended records, or certificates to establish the alleged facts. When 

established, the original record or certificate shall be supplemented by the affidavit 

or the amended certificate or record information. 

... 

A certified copy of a certificate or record issued by the department of health shall 

show the information as originally given and the corrected information, except that 

an electronically produced copy need indicate only that the certificate or record was 

corrected and the item that was corrected. 

Ohio Rev. Code § 3705.22 (emphasis supplied). 

Both statutes allow birth records to be corrected if information in them was incorrectly 

reported or mistakenly recorded at the time of birth. Id. Other Ohio laws specifically allow changes 

to a birth record to address an incorrect date of birth (§ 3505.15(D)(2)), a name change (§ 3705.13), 

or an adoption (§ 3705.124). But nothing in Ohio law authorizes a change to the sex reported on 

a birth certificate based on a later-announced gender identity that differs from the sex recorded at 

birth. 

Plaintiffs do not allege that Ohio mistakenly recorded their “sex” at birth, i.e., they do not 

claim an error correctable under Ohio Rev. Code § 3705.15 or § 3705.22. Rather, Plaintiffs allege 

that Ohio violates the constitution by maintaining a “categorical bar to changing gender markers 

on the birth certificates of transgender people....” Doc. 1 at ¶ 47. Plaintiffs’ Complaint fails to 

allege any viable constitutional claim regarding Ohio’s birth record laws. 

B. Ohio’s Birth Records Record The Sex Reported At Birth, And Do Not Contain 

A “Gender Marker” That Purports To Show Gender Identity. 

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An Ohio birth certificate is made shortly after birth, and records information and vital 

statistics reported to the Ohio Department of Health. Ohio is a passive gatherer of the birth record 

information and merely inputs the information that is reported to it. In deciding this motion, the 

Court may consider publicly available governmental information, Commercial Money Ctr., Inc. v. 

Illinois Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007), which includes information related to 

Ohio’s birth records. The form used by the Ohio Department of Health to record birth record 

information contains over 300 topics, ranging from the date of birth to the educational background 

of the parents to the mother’s smoking history. See Exhibit 1, Ohio Vital Statistics Birth 

Occurrence File Layout. That information then forms the basis of the historical birth record for 

the child, including the short and long form of birth records, as well as the more familiar 

Certification of Birth. See Exhibit 2, Certification of Birth Abstract. Ohio does not collect 

information related to a child’s “gender marker” or “gender identity.” See generally Ex. 1. Nor 

do Ohio’s birth records, including the Certification of Birth, reflect such information. See Ex. 2. 

Instead, Ohio’s birth certificates record the child’s “sex,” as reported at the time of birth. The form 

allows entries only for male, female, or undetermined. See Ex. 1 at 1 (“Undetermined” is used 

when a child’s sex cannot be determined, such as when the child is born with intersex conditions). 

The scientific community distinguishes biological sex from gender identity. See F.V. v. 

Barron, 286 F. Supp. 3d 1131, 1136–37 (D. Idaho 2018). “There is scientific consensus that 

biological sex is determined by numerous elements, which can include chromosomal composition, 

internal reproductive organs, external genitalia, hormone prevalence, and brain structure.” Id. at 

1136. This position is echoed by the American Psychology Association, which defines sex as 

“one’s biological status as either male or female....” See id. at 1136, n. 5 (citing Transgender 

People, Gender Identity and Gender Expression, American Psychological Association (2018), 

http://www.apa.org/topics/lgbt/transgender.aspx). 

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Gender, on the other hand, “is the intrinsic sense of being male, female, or an alternative 

gender.” Id. at 1136 (citing World Professional Association for Transgender Health, Standards of 

Care for the Health of Transsexual, Transgender, and Gender Nonconforming People at 96 (7th 

Version, 2011)) (“WPATH Standards of Care”). “[T]ransgender is an adjective used to describe a 

person who has a gender identity that differs, in varying degrees, from the sex observed and 

assigned at birth.” Id. (citing WPATH Standards of Care at 97). 

Plaintiffs’ Complaint acknowledges the distinction between “gender” and “sex.” See, e.g., 

Doc. 1 at ¶ 22 (stating that Plaintiffs seek to bring their “gender identity” and “sex” into 

“alignment”); id. at ¶ 23 (distinguishing “gender identity” from “sex”); id. at ¶ 26 (noting the 

“discordance between [] gender identity and birth-assigned sex”). Nonetheless, Plaintiffs ask this 

Court to conflate the two and treat the sex designation recorded at the time of birth as a “gender 

identity” marker. Ohio’s birth records indicate a baby’s “sex” at the time of birth. The State of 

Ohio does not ask for, nor does the birth certificate record, a gender identity marker. Absent a 

showing that Plaintiffs’ “sex” was incorrectly recorded at birth, Ohio law does not permit the birth 

certificate change that Plaintiffs seek. 

III. ARGUMENT 

A. Standard Of Review 

Plaintiffs’ Complaint is legally deficient and should be dismissed for failure to state a claim 

for relief under Federal Rule of Civil Procedure 12(b)(6). “To survive a motion to dismiss, a 

complaint must contain 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) (quoting Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the [party] pleads 

factual content that allows the court to draw the reasonable inference that the defendant is liable 

for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). Ultimately, a party’s 

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“obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires 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 (alteration and citation omitted). 

Plaintiffs bring this facial challenge to Ohio’s birth-record laws under the First 

Amendment, the Due Process Clause, and the Equal Protection Clause of the U.S. Constitution. 

Because facial challenges carry greater consequences than as-applied challenges, i.e., invalidating 

an entire law, the Supreme Court places a high burden on parties seeking to establish a facial 

challenge. See United States v. Stevens, 559 U.S. 460, 472 (2010). To prevail, Plaintiffs must 

establish either “that no set of circumstances exists under which [Ohio’s birth-record laws] would 

be valid,” United States v. Salerno, 481 U.S. 739, 745 (1987), or that the statutes are devoid of any 

“legitimate sweep.” Washington v. Glucksberg, 521 U.S. 702, 740, n. 7 (1997) (Stevens, J., 

concurring) (internal quotation marks omitted). As shown below, Plaintiffs cannot meet this 

burden as a matter of law, so the case must be dismissed. 

B. Plaintiffs’ First Amendment Claim Is Legally Deficient And Should Be 

Dismissed. 

Plaintiffs’ First Amendment claim is predicated on their assertion that Ohio’s birth 

certificate statutes “prevent[] [them] from accurately expressing their gender,” and “force them ... 

to endorse the government’s position as to their gender,” and therefore violate the First 

Amendment. Doc. 1 at ¶¶ 127–28. As discussed below, Ohio’s birth certificate statutes do no 

such thing, and Plaintiffs fail to state a plausible First Amendment claim. 

1. The Information Contained in Ohio’s Birth Records Constitutes 

Government Speech, and Such Governmental Speech Cannot be the 

Proper Subject of a First Amendment Claim. 

To start, Plaintiffs’ First Amendment claim fails because the information contained in 

Ohio’s birth records constitutes governmental speech. “When government speaks, it is not barred 

by the Free Speech Clause from determining the content of what it says.” Walker v. Tex. Div., 

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Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2245 (2015) (citation omitted). 

“[G]overnment actions and programs that take the form of speech [] do not normally trigger the 

First Amendment rules designed to protect the marketplace of ideas. Id. at 2245–46 (citation 

omitted). As the Supreme Court reasoned in Walker, “it is not easy to imagine how government 

could function if it lacked th[e] freedom to select the messages it wishes to convey.” Id. at 2246 

(citation and quotations omitted). In general, “when the government speaks it is entitled to 

promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens 

and it carries out its duties on their behalf.” Id.

The Supreme Court in Walker found that specialty license plates issued by Texas 

constituted governmental speech and that the censorship of potentially offensive content on them 

did not violate First Amendment rights. Id. at 2253. In finding that the content of the license 

plates was governmental speech not subject to First Amendment scrutiny, the Supreme Court 

recognized that license plates served a vital governmental purpose as identification, that the license 

plates had “TEXAS” written on them, that every license plate was issued by the state, that the 

license plates were designed by the state, and that the state maintained control over what could be 

written on the license plates. Id. at 2248–50. 

Applying the factors laid out in Walker, the Ohio birth certificates constitute governmental 

speech. First, as Plaintiffs admit, birth certificates in Ohio serve a vital governmental purpose as 

a form of identification. See Doc. 1 at ¶¶ 32–34. Second, they self-evidently reflect a host of 

objective and demographic data that existed at the time of birth. Third, the state is speaking 

through them. All birth certificates include, in large letters, the following caption “STATE OF 

OHIO OFFICE OF VITAL STATISTICS.” See Ex. 2. The birth certificates also include the Ohio 

Department of Health seal, and the word “OHIO” is written approximately 70 times on the 

document. Id. Further, the signature of the State Registrar of Vital Statistics appears on the face 

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of the document, together with her certification that the information on the birth certificate is true. 

Id. Finally, the state maintains absolute control over what information can be displayed on birth 

certificates. As such, under the analysis set forth in Walker, Ohio’s birth certificates constitute 

governmental speech and cannot serve as the basis of a valid First Amendment claim. 

2. Ohio’s Birth Records Do Not Record a Person’s Gender Identity, so 

Plaintiffs Are Not Entitled to the Relief They Seek. 

 Plaintiffs contend that Ohio’s birth certificates prevent them from “accurately expressing 

their gender” and “convey[] the state’s ideological message that gender is determined solely by 

the appearance of external genitals....” Doc. 1 at ¶¶ 127–28. Not so. Ohio’s birth records do not 

include a marker for “gender” or “gender identity.” See Ex. 2. Nor does the state’s accurate 

recording of the sex of a child on a birth record affect a transgender person’s ability to express his 

or her gender identity, or force them to identify with a gender, or require them to espouse some 

ideological viewpoint about gender identity. Plaintiffs are free to choose how, what, and whether 

to express anything about their gender identity. For these reasons, Plaintiffs cannot plausibly 

allege that Ohio’s birth records make any statement as to Plaintiffs’ gender identity, much less 

prove, under any set of facts, that Ohio birth records inaccurately express such gender identity. In 

such circumstances, no valid First Amendment claim exists. 

C. Ohio’s Birth-Record Laws Fully Comply With The Due Process Clause Of The 

U.S. Constitution. 

Ohio’s birth-record laws are consistent with the Due Process Clause of the Fourteenth 

Amendment. Plaintiffs allege that Defendants violated the Due Process Clause by causing 

“transgender people to involuntarily disclose their transgender identity” and that such activity 

constitutes a violation of “the right to live in accordance with one’s gender identity.” See Doc. 1 

at ¶¶ 120, 122. This claim fails as a matter of law. 

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Plaintiffs’ claim sounds in what the Sixth Circuit has described as an “informational right 

to privacy.” See Bloch v. Ribar, 156 F.3d 673, 683 (6th Cir. 1998). The informational right to 

privacy “protects an individual’s right to control the nature and extent of information released 

about that individual.” Id. (citing Whalen v. Roe, 429 U.S. 589, 599–600 (1977)). It is well 

established that an informational right to privacy does not exist over information that is already in 

the public record, and for that reason alone, Plaintiffs’ due process claim must fail. See Cox 

Broadcasting Corp. v. Cohn, 420 U.S. 469, 495 (1975); Lambert v. Hartman, 517 F.3d 433, 442–

46 (6th Cir. 2008); Does v. Munoz, 507 F.3d 961, 965 (6th Cir. 2007); G.B. v. Rogers, 2009 U.S. 

Dist. LEXIS 44055, at *29–30 (S.D. Ohio May 11, 2009). Under Ohio law, birth certificates are 

available to the public and are therefore public records. See Ohio Rev. Code § 3705.23(A)(1). 

Plaintiffs’ sex designation on their birth certificates has been available for public view since birth, 

so changing the birth record neither claws back nor updates information that may have already 

been accessed and aggregated by others, such as those who gather such data for online databases. 

Thus, even if Plaintiffs were permitted to change their birth records to reflect their gender identity, 

Plaintiffs’ information privacy objectives would still be unachievable. 

Plaintiffs’ claim also fails as a matter of law because the Sixth Circuit narrowly construes 

informational privacy rights “to interests that implicate a fundamental liberty interest.” Bloch, 156 

F.3d. at 684 (citing J.P. v. DeSanti, 653 F.2d 1080, 1090 (6th Cir. 1981)). The Sixth Circuit applies 

a two-part test to determine whether the disclosure of private information warrants constitutional 

protection: “(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.” Id. (citation 

omitted). The “balancing test should be employed only if fundamental or traditional rights are 

implicated.” Id. As the Sixth Circuit has recognized, “identifying a new fundamental right subject 

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to the protections of substantive due process is often an uphill battle, as the list of fundamental 

rights is short.” Munoz, 507 F.3d at 965. 

The Sixth Circuit has recognized a constitutional right to informational privacy only in two 

circumstances: “(1) where the release of personal information could lead to bodily harm [], and 

(2) where the information released was of a sexual, personal, and humiliating nature [].” Lambert, 

517 F.3d at 440 (citations omitted) (emphasis added). In both circumstances, it is the government 

that releases the private information. See id. at 440–41; see also Beck v. Muskingum County, 2012 

U.S. Dist. LEXIS 146014, at *12–13 (S.D. Ohio Oct. 10, 2012) (dismissing informational privacy 

claim because there was no evidence detailing the information allegedly disclosed by the 

government). Moreover, courts in the Sixth Circuit further narrow the right to privacy in the 

context of bodily harm “to circumstances where the information disclosed was particularly 

sensitive and the persons to whom it was disclosed were particularly dangerous....” Barber v. 

Overton, 496 F.3d 449, 456 (6th Cir. 2007). 

Plaintiffs’ due process claim fails the two-part test described in Bloch as a matter of law 

for several reasons. First, Plaintiffs have failed to identify a fundamental right that is being 

violated. The gravamen of Plaintiffs’ due process claim is that they have a fundamental right to 

keep secret how their sex was reported and recorded at birth. That, however, is not a fundamental 

right recognized by the Sixth Circuit or the Supreme Court. Maintaining secrecy over basic vital 

statistics maintained by the state, and already in the public domain for decades, does not implicate 

a “fundamental right” or “the concept of ordered liberty.” See Bloch, 156 F.3d. at 684. 

Second, as discussed above, the Sixth Circuit recognizes a right to informational privacy 

only when the government is responsible for releasing the protected information. See Lambert, 

517 F.3d at 440. Plaintiffs’ Complaint only identifies actions taken by non-Defendants relating to 

the release of Plaintiffs’ birth certificate information. See, e.g., Doc. 1 at ¶ 54 (co-worker); id. at 

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¶ 55 (TSA agent); id. at ¶ 67 (Italian Consulate); id. at ¶ 85 (Social Security Administration); id.

at ¶ 97 (Arizona Department of Transportation Motor Vehicle Division). Nor do Plaintiffs allege 

that Defendants have taken affirmative steps to publish or advertise Plaintiffs’ birth certificates. 

Instead, the Complaint repeatedly alleges that it was Plaintiffs, not Defendants, who have disclosed 

this information to third parties. See id. at ¶¶ 54–55, 57, 67, 77, 85, 89, 97, 99, and 101. 

Third, Plaintiffs generally allege that possessing their birth certificates increases their 

exposure to violence. Id. at ¶¶ 53, 64, 84 and 96. But that allegation falls far short of the Sixth 

Circuit’s requirement that the private information must be of a “sexual, personal, and humiliating 

nature,” and specifically disclosed to “particularly dangerous” individuals. Compare Lambert, 

517 F.3d at 440; with Barber, 496 F.3d at 456. Plaintiffs’ allegations do not identify a situation 

where their birth certificate information was released to a dangerous individual likely to expose 

Plaintiffs to violence. 

 Accordingly, this Court should dismiss the Due Process claim. 

D. Plaintiffs Fail To State A Valid Equal Protection Claim 

Ohio’s birth-record laws fully comply with the Equal Protection Clause of the U.S. 

Constitution. Plaintiffs’ allegations to the contrary fail as a matter of law for at least two reasons: 

(1) the laws governing the issuance of birth certificates in Ohio are facially neutral, so the claim is 

based on disparate impact rather than disparate treatment, but Plaintiffs have failed to adequately 

plead a discriminatory intent in either the enactment or enforcement of the law; and (2) transgender 

people are not a protected class, and Ohio has a legitimate interest in maintaining the accuracy of 

its birth records. Plaintiffs’ equal protection claim is simply not plausible and must be dismissed. 

1. Ohio’s Birth-Record Laws Are Facially Neutral and Plaintiffs Have 

Not Adequately Pleaded Discriminatory Intent. 

Plaintiffs challenge Ohio’s birth-record laws on equal protection grounds, alleging such 

laws discriminate against transgender people on the basis of “gender nonconformity, gender 

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identity, transgender status, and gender transition.” Doc. 1 at ¶ 104. Ohio’s birth-record laws do 

not mention transgender or record any of the other gender-related categories identified by 

Plaintiffs. See Ohio Rev. Code §§ 3705.15 and 3705.22. Thus, despite Plaintiffs’ bald assertions 

to the contrary, Ohio law does not “facially and intentionally discriminate[] against transgender 

people based on sex.” Doc. 1 at ¶ 104. Indeed, Ohio’s laws governing the issuance and correction 

of its birth records are facially neutral and do not discriminate against any class of people, 

including transgender people. In other words, no one born in Ohio has an open-ended right to 

amend the sex recorded at birth on a birth certificate. To the extent that Plaintiffs allege that this 

equal treatment affects them unequally, because only transgender individuals would want such a 

mechanism, that is a claim of disparate impact, not disparate treatment. 

“The Equal Protection Clause forbids only intentional discrimination.” Horner v. Kentucky 

High Sch. Athletic Ass’n, 43 F.3d 265, 276 (6th Cir. 1994) (citing Washington v. Davis, 426 U.S. 

229 (1976)). “When a facially neutral rule is challenged on equal protection grounds, the plaintiff 

must show that the rule was promulgated or reaffirmed because of, not merely in spite of, its 

adverse impact on persons in the plaintiff’s class. Id. (citing Personnel Adm’r v. Feeney, 442 U.S. 

256, 279 (1979)) (emphasis in original). 

Ohio’s birth-record laws are facially neutral; they apply equally to all born in Ohio. See

Ohio Rev. Code §§ 3705.15 and 3705.22. No person, regardless of his or her gender identity, is 

permitted to change the “sex” on their birth certificate for any reason other than to correct a mistake 

made at the child’s birth. See id. Plaintiffs’ status as transgender people do not limit their ability 

to take advantage of the correction statutes, nor does their status confer upon them rights or 

obligations that other Ohio-born people do not also have. 

Thus, for Plaintiffs to succeed on their equal protection challenge to Ohio’s birth-record 

laws, Plaintiffs must prove not only that the facially neutral laws have a disparate impact on 

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Plaintiffs’ class, but also that the law’s intended purpose was to discriminate against such class. 

See Davis, 426 U.S. at 241 (“A statute, otherwise neutral on its face, must not be applied so as 

invidiously to discriminate....”). Put another way, mere disproportionate impact is not enough. 

Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 264–65 (1977). 

“Proof of [] discriminatory intent or purpose is required to show a violation of the Equal Protection 

Clause.” Id. at 265. The kind of impact necessary to show “intentional discrimination is that 

which is significant, stark, and unexplainable on other grounds.” Horner, 43 F.3d at 276 (citing 

Arlington, 429 U.S. at 279). 

Plaintiffs do not allege the kind of intentional discrimination necessary to survive a motion 

to dismiss. Plaintiffs do not identify, or even allege, that the legislature had a discriminatory 

purpose in enacting Ohio’s facially neutral birth-record laws. See Bailey v. Carter, 15 Fed. Appx 

245, 251 (6th Cir. 2001) (dismissing Equal Protection claim because there was no allegation that 

the agency had a discriminatory purpose in enacting a facially neutral rule). Instead, Plaintiffs 

generically claim that Defendants’ enforcement of Ohio law “is maintained and motivated by 

animus towards transgender people.” Doc. 1 at ¶ 112. That allegation is simply implausible, given 

Defendants’ statutorily-mandated compliance with Ohio’s facially neutral birth-record laws. And 

to the extent Plaintiffs allege that in the past, Ohio allowed transgender people to update the sex 

marker on their birth certificates, see id. at ¶¶ 43–44, that action did not comply with Ohio law, 

which provides for corrections to the sex designation only if it was reported or recorded in error. 

See Ohio Rev. Code §§ 3705.15 and 3705.22. In any event, Plaintiffs’ bald statement about 

Defendants’ animus, unadorned by any supporting facts or allegations, is insufficient to survive a 

motion to dismiss. See Twombly, 550 U.S. at 555. 

Accordingly, this Court should dismiss the equal protection claim in Count I of Plaintiffs’ 

Complaint. 

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2. Transgender People Are Not a Protected Class Entitled to Heightened 

Scrutiny and, in any Event, Ohio has a Substantial Interest in 

Enforcing its Birth-Record Laws. 

Moreover, Plaintiffs’ claim is further flawed because transgender people are not a protected 

class, and Defendants have a rational basis to enforce Ohio’s birth-record laws. Neither the 

Supreme Court nor the Sixth Circuit have added transgender status to the suspect classifications 

entitled to heightened scrutiny under the Equal Protection Clause. Indeed, many courts have found 

that transgender people are not a protected class, so no heightened scrutiny applies. See, e.g.,

Johnston v. Univ. of Pittsburgh of the Commonwealth Sys. of Higher Educ., 97 F.Supp.3d 657, 

668 (W.D. Pa. 2015) (noting that transgender status has not been recognized as a suspect 

classification and applying rational-basis review); Braninburg v. Coalinga State Hosp., 2012 U.S. 

Dist. LEXIS 127769, at *22 (E.D. Cal. 2012) (“[I]t is not apparent that transgender individuals 

constitute a ‘suspect’ class.”); Jamison v. Davue, 2012 U.S. Dist. LEXIS 40266, at *10 (E.D. Cal. 

2012) (“[T]ransgender individuals do not constitute a ‘suspect’ class, so allegations that defendants 

discriminated against him based on his transgender status are subject to a mere rational basis 

review.”); Kaeo-Tomaselli v. Butts, 2013 U.S. Dist. LEXIS 13280, at *13 (D. Haw. 2013) (finding 

that the plaintiff's status as a transgender female did not qualify her as a member of a protected 

class and explaining the court could find no “cases in which transgender individuals constitute a 

‘suspect’ class”); Lopez v. City of New York, 2009 U.S. Dist. LEXIS 7645, at *13 (S.D.N.Y. 2009) 

(explaining that transgender individuals are not a protected class for the purpose of Fourteenth 

Amendment analysis, and claims that a plaintiff was subjected to discrimination based on her status 

as transgender are subject to rational basis review).

The only cases in either the Supreme Court or Sixth Circuit addressing special legal 

protections for transgender people have done so within the context of Title VII. See EEOC v. R.G., 

884 F.3d 560 (6th Cir. 2018); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004). But the 

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statutory standard of Title VII does not apply to this Court’s equal-protection analysis. See Davis,

426 U.S. at 239 (1976). Further, the analysis in those cases is not that “transgender” is the named 

protected class in Title VII, but that a transgender individual who does not conform to the 

expectations of his or her sex as recorded at birth is subjected to sex stereotyping, and is thus 

subject to sex discrimination. See EEOC, 884 F.3d at 573–74 (citing Price Waterhouse v. Hopkins, 

490 U.S. 228 (1989)). And the few out-of-circuit and district courts that have addressed the issue 

under the Equal Protection Clause are not binding on this Court. See H.R. v. Medtronic, Inc., 996 

F. Supp. 2d 671, 678 n.5 (S.D. Ohio 2014) (“In matters concerning federal law a District Court is 

bound only by the decisions of the Court of Appeals for the Circuit in which it sits and by the 

decisions of the United States Supreme Court...not...fellow district court judges.”) (citation 

omitted). In any event, as set forth below, whether transgender people constitute a protected class 

is not dispositive in this case because Plaintiffs cannot allege a viable equal protection claim under 

either circumstance. 

When the state action does not impact a protected class, Equal Protection Clause claims 

are reviewed under a rational basis standard. See Heller v. Doe, 509 U.S. 312, 319 (1993). Under 

this standard, “[a] classification must be upheld against equal protection challenge if there is any 

reasonably conceivable state of facts that could provide a rational basis for the classification.” 

Heller, 509 U.S. at 320. The face of the Complaint shows that, as a matter of law, Plaintiffs cannot 

survive application of a rational basis review to their Equal Protection claim. Ohio can show an 

irrebuttable rational basis to enforce its birth record statutes. Moreover, Ohio’s interest in 

enforcing such statutes is so substantial that even if this Court were to find that transgender people 

are a protected class, requiring the application of heightened scrutiny (which this Court should not 

do) Plaintiffs’ equal protection claim still fails. 

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In Ohio, birth records are historical records used not only to record a person’s birth, but 

also to verify a person’s death. As set forth in Ohio Rev. Code § 3705.27: 

The director of health may match birth records and death records in 

accordance with written standards which he shall promulgate in 

order to protect the integrity of vital records and prevent the 

fraudulent use of birth records of deceased person, to prove beyond 

a reasonable doubt the fact of death, and to post the facts of death 

to the appropriate birth record. Copies made of birth records marked 

“deceased” shall be similarly marked “deceased.” 

Ohio Rev Code § 3705.27 (emphasis added). Thus, Ohio law recognizes not only a rational basis, 

but also several substantial interests in maintaining the accuracy of Ohio’s birth records, including 

proving the fact of death and preventing fraud. Ohio’s substantial interest in the accuracy of its 

records is echoed by numerous courts across the country. See, e.g., In re Michaela R., 253 Conn. 

570, 602, n.30 (2000) (“The state, therefore, has a substantial interest in limiting alterations and 

amendments [to birth certificates] that potentially may jeopardize the accuracy of the records.”); 

United States v. Machinski, 2017 U.S. Dist. LEXIS 93286, at *16 (N.D. Cal. June 16, 2017) 

(finding that the Department of Education had a substantial interest in the accuracy of student-loan 

documents); State v. Schaefer, 239 Mont. 437, 441 (1989) (finding the state had a substantial 

interest in maintaining accurate records of certain sales transactions). 

For these reasons, the accuracy of Ohio’s birth records is paramount in the well-ordered 

operation of the state’s vital recordkeeping and the prevention of fraud. Ohio’s statutes survive 

regardless of whether this Court applies rational basis review or heightened scrutiny. Nothing in 

Plaintiffs’ pleadings overcomes that finding. Because Plaintiffs’ equal protection claim fails under 

either analysis, Count I of the Complaint should be dismissed. 

E. Other Compelling Reasons Exist To Dismiss The Complaint And Deny The 

Relief Sought By Plaintiffs. 

Plaintiffs ask this Court to strike at least two (and potentially more) statutes contained in 

Ohio’s vital statistics laws. As the Supreme Court has previously held, a facial attack on the law 

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is “strong medicine.” See Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). Judicial restraint is 

cautioned in facial challenges “because such efforts do not seek to invalidate laws in concrete, 

factual settings but to ‘leave nothing standing.’” Fieger v. Michigan Supreme Court, 553 F.3d 955, 

960 (6th Cir. 2009) (citing Warshak v. United States, 532 F.3d 521, 528 (6th Cir. 2008) (en banc)). 

Indeed “[c]laims of facial invalidity often rest on speculation[,] . . . raise the risk of premature 

interpretation[,] . . . run contrary to the fundamental principle of judicial restraint[,] . . . [and] 

threaten to short-circuit the democratic process.” Id. (citing Washington State Grange v. 

Washington State Republican Party, 128 S. Ct. 1184, 1191 (2008)) (internal quotes and citations 

omitted). Plaintiffs’ facial challenge to Ohio’s birth-record laws “is a remedy that courts employ 

‘sparingly and only as a last resort.’” Id. (citing Broadrick, 413 U.S. at 613). 

Invalidating Ohio’s law would not only violate traditional judicial-restraint principles, but 

would also upend a comprehensive legislative scheme with many intertwined parts. For example, 

Ohio Rev. Code § 3705.27, which matches birth certificates with death certificates, would 

undoubtedly be impacted by incongruous information related to the “sex” of a deceased Ohioan. 

See id. Various aspects of numerous other statutes would also be jeopardized if, as Plaintiffs seek 

to do here, reference to a person’s sex as reported at birth could be indelibly altered. See, e.g., 

Ohio Rev. Code § 3109.19, et seq. (parentage determinations); Ohio Rev. Code § 3345.32 

(selective service requirements); Ohio Rev. Code § 5123.01 (residency definitions under the 

Department of Developmental Disabilities); Ohio Rev. Code § 5147.18 (regulating the use of 

prisoners for hard labor); Ohio Rev. Code § 125.65 (incentivizing female entrepreneurs); Ohio 

Rev. Code § 2151.16 (appointing female referees for trials of females); Ohio Rev. Code § 341.05 

(employing females at prisons). 

In light of the many statutes that would be immediately affected by striking Ohio’s birthrecord laws, Plaintiffs’ Complaint implicates core federalism concerns. When considering 

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remedial measures, the Supreme Court has warned that courts “must take into account the interest 

of state and local authorities in managing their own affairs, consistent with the Constitution.” 

Milliken v. Bradley, 433 U.S. 267, 280–81 (1977). Overriding validly enacted state law usurps 

Ohio’s legislative prerogative in an area of governance that is reserved to the states. 

Moreover, Plaintiffs not only seek to strike Ohio law, but also seek affirmative relief from 

this Court to allow Plaintiffs the ability to update their sex designation based solely on gender 

identity. To provide Plaintiffs the remedy they seek, this Court would have to create detailed rules 

outlining the circumstances under which a transgender person would be entitled to change the sex 

marker on his or her birth certificate. Among other things, the Court would need to consider 

whether the applicant needed to have sex-change surgery before a birth certificate change could 

occur. If so, how much surgery would be required? Would hormone therapy be needed? If so, 

for how long? Would a doctor’s affidavit be required to prove that a person had transitioned? 

Would a psychological exam be needed to confirm whether a person’s gender identity conflicts 

with his or her sex reported at birth? Despite Plaintiffs attempt to color Ohio’s as an outlier as it 

relates to birth record changes, no national consensus exists on these issues, as states have varied 

approaches to these questions. See, e.g., State-by-State Overview, available at 

https://transgenderlawcenter.org/resources/id/state-by-state-overview-changing-gender-markerson-birth-certificates (last visited July 6, 2018). Indeed, these are complicated policy choices that 

implicate numerous state and individual interests. Federalism principles dictate that this Court 

leave this task to the reasoned consideration of Ohio’s legislature. 

Finally, Ohio’s laws regarding the ability to update a sex marker on a birth certificate are 

narrowly tailored. Birth certificates are historical records of a child’s birth and contain certain 

immutable facts such as the date, time, location, and child’s sex as reported at birth. On the other 

hand, Ohio law does allow Plaintiffs to change other public records to correspond with their gender 

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identity. For example, as Plaintiffs allege, the Ohio Bureau of Motor Vehicles already allows 

transgender people to change the sex designation on their driver’s license or state identification 

card to match their gender identity. Doc. 1 at ¶ 47. Driver’s licenses and state issued identification 

cards are reflections of the present. They are renewed periodically and updates to name, address, 

weight, and even sex, are allowed. Accordingly, rather than serving as a reason to find Ohio’s 

birth-record laws unconstitutional, those examples show the ease with which transgender people 

can update their “sex” on their other state-issued forms of identification, rendering implausible 

Plaintiffs’ allegations regarding Ohio’s supposed animus towards transgender people. 

In sum, Plaintiffs’ complaint is with legislative policy choices in a controversial area, and 

that is a matter for state legislatures, not for federal courts to impose a one-size-fits-all policy 

mandate. 

IV. CONCLUSION 

None of Plaintiffs’ claims state a plausible or colorable violation of the U.S. Constitution. 

Plaintiffs’ Complaint should be dismissed in its entirety. 

Dated: July 6, 2018 Respectfully submitted, 

/s/ Kimberly Moses 

KIMBERLY MOSES (0029601) 

ALBERT J. LUCAS (0007676) 

JASON J. BLAKE (0087692) 

CALFEE, HALTER & GRISWOLD LLP 

1200 Huntington Center 

41 S. High Street 

Columbus, Ohio 43215 

Telephone: (614) 621-1500 

Fax: (614) 621-0100 

kmoses@calfee.com 

alucas@calfee.com 

jblake@calfee.com 

Attorneys for Defendants 

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CERTIFICATE OF SERVICE 

I hereby certify that on July 6, 2018, a copy of the foregoing was filed electronically. Notice 

of this filing will be sent by operation of the Court’s electronic filing system to all parties indicated 

on the electronic filing receipt. Parties may access this filing through the Court’s system. 

/s/ Kimberly Moses 

One of the Attorneys for Defendants 

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