Oklahoma Supreme Court rules against birth certificate sex marker changes, even for clerical errors
The Oklahoma Supreme court has declared that legal changes to sex markers on birth certificates has never been allowed (Envato, Stock)
The Oklahoma Supreme Court has ruled that it was never legal under state law to change the sex marker on a birth certificate, a reading that also blocks corrections for clerical errors.
In a 6–3 decision in Fowler et al v Stitt, the court said Oklahoma’s statutes and administrative rules do not allow the state to update sex or gender markers on birth certificates. The decision is set out in the Oklahoma Supreme Court ruling (OSCN document).
The case was brought by three trans Oklahomans, Rowan Fowler, Allister Hall and Carter Ray, against Republican governor Kevin Stitt and state health officials including the Commissioner of Health and the State Registrar of Vital Records. The justices split 6–3 along lines which reflected whether they were appointed by Republican or Democratic governors.
After the ruling, Stitt said: “In 2021, I held the line and made it clear that Oklahoma birth certificates should reflect a person’s biological sex at birth,” and added: “This deserved a unanimous outcome by our Oklahoma Supreme Court.”
Why did the court say it was ‘never legal’?
The court focused on how Oklahoma law allows birth certificates to be amended. It pointed to statutory language stating: “A certificate or record registered under this article may be amended only in accordance with this article and regulations thereunder adopted by the State Commissioner of Health to protect the integrity and accuracy of vital statistics records.”
Because the statutes and regulations list specific amendments, the court said only those explicitly provided for are permitted. It added: “This Court is guided by the canon expressio unius est exclusio alterius,” meaning that listing one set of allowed changes implies others are excluded.
That interpretation has wider consequences than the trans-led challenge that prompted the case. It means cis people cannot correct an incorrectly entered sex marker even where it was a clerical error, and it can also affect intersex people who are not identified until after their first year of life.
What happens next in Fowler v Stitt?
Stitt signed an executive order directing the Oklahoma State Department of Health to no longer allow trans and nonbinary people to update birth certificate gender markers, as well as forbidding the use of an “X” marker in 2022. The plaintiffs filed their lawsuit later in 2022 with help from Lambda Legal, alleging that the policy violated due process and their First Amendment rights because it prevented them from identifying themselves accurately.
A federal district court dismissed the case. The Tenth Circuit upheld dismissal of the due process claim but revived the First Amendment claims, then asked Oklahoma’s Supreme Court to answer key questions of state law.
The state-court ruling does not end the lawsuit. The case now returns to the Tenth Circuit, which will decide whether the rules and Stitt’s executive order violate the plaintiffs’ First Amendment rights. In 2021, Stitt had already moved to block nonbinary birth certificates after reneging on a settlement agreement that had allowed amendments.
