Reported / Citable
Background
Three transgender children in Arizona, suing through their parents, brought a class action against the Director of the Arizona Department of Health Services on behalf of all transgender individuals born in Arizona who seek to change the sex listed on their birth certificates but have not undergone a sex change operation. They mounted a facial challenge to A.R.S. § 36-337(A)(3), which directs the registrar to amend a birth certificate upon a written request and a physician's statement verifying a sex change operation, alleging that this surgical requirement violates the Equal Protection Clause and the Due Process Clause. The district court certified the class, and the parties agreed the case proceeded only as a facial challenge.
The district court granted summary judgment to the plaintiffs on all claims, concluding that the statute discriminates based on transgender status, fails heightened scrutiny, and violates substantive due process rights to liberty, autonomy, medical decision-making, and informational privacy. It entered a permanent injunction striking the word 'operation' from the statute and an implementing regulation. ADHS appealed, and after judgment Arizona's Senate President and House Speaker intervened under Federal Rule of Civil Procedure 24 and also appealed; the Ninth Circuit consolidated the appeals and stayed the judgment pending appeal.
The Court’s Holding
Judge Desai's opinion first resolved Arizona statutory interpretation. The panel held that A.R.S. § 36-337(A)(4), which requires the registrar to amend a birth certificate upon receiving a court order ordering an amendment, is an unambiguous catch-all allowing anyone—including transgender people who have not undergone surgery—to obtain a court-ordered amendment to the sex marker without proof of a sex change operation. Importing section (A)(3)'s surgical requirement into section (A)(4), the court reasoned, would disregard the plain text, render the catch-all superfluous, and conflict with Arizona authority recognizing courts' authority to order amendments when appropriate.
On equal protection, the panel held the statute draws no classification based on transgender status or any other suspect class because section (A)(4) is available to all people equally and section (A)(3) at most classifies based on whether a person has undergone a sex change operation. Applying rational basis review, the court upheld the scheme as rationally related to the state's interest in evidentiary support for amending critical identity documents. On due process, even assuming the asserted rights are fundamental, the court-order pathway means those rights are not burdened in all applications, so the facial challenge fails. The court reversed summary judgment, vacated the injunction, and remanded.
Key Takeaways
- Arizona's birth-certificate amendment statute survives a facial constitutional challenge because section (A)(4) operates as a catch-all allowing any person to obtain a court-ordered amendment to the sex marker without undergoing a sex change operation.
- Because the statute does not classify based on transgender status—expressly or by proxy—the Ninth Circuit applied rational basis review rather than heightened scrutiny and upheld the law as rationally related to the state's interest in evidentiary support for identity-document amendments.
- Facial substantive due process claims failed even assuming the asserted rights are fundamental, because the court-order pathway means the statute does not burden those rights in all applications.
- The panel rejected the legislative intervenors' narrower construction, holding that reading section (A)(3)'s surgical requirement into section (A)(4) would render the catch-all provision meaningless.
- The decision reversed summary judgment for the plaintiffs, vacated the permanent injunction that had struck the word 'operation' from the statute, and remanded for further proceedings.
Why It Matters
The decision shows how statutory interpretation can be outcome-determinative in constitutional litigation: by construing section (A)(4) as a broad catch-all, the panel removed the premise of the plaintiffs' facial challenge without deciding whether heightened scrutiny would otherwise apply to transgender-status classifications. It also illustrates the heavy burden on facial challenges, which require showing a law is unconstitutional in all its applications.
The ruling leaves Arizona's surgical-requirement provision intact while confirming that transgender Arizonans may seek court-ordered amendments, and it signals that states may channel certain identity-document changes through judicial factfinding without failing rational basis review. The case was decided by a two-judge quorum after Judge Graber's recusal under 28 U.S.C. § 46(d).