Judge Richard Federico, nominated by President Biden to the Tenth Circuit court of appeals, cast the deciding vote to overturn a district court and allow transgender individuals to proceed with a lawsuit challenging an Oklahoma state policy forbidding them from obtaining an amended birth certificate to reflect changes in their gender identity. Judge Federico joined a decision written by Judge Carolyn McHugh, who was nominated by President Obama, and to which Judge Harris Hartz, who was nominated by President George W Bush, dissented. The June 2024 decision was in Fowler v Stitt..
What is the background of this case?
Rowan Fowler is a transgender woman who “began living openly as a female in 2021, when she was forty-six.” She has been diagnosed with gender dysphoria, and her treatment includes “social transition to living openly as female.” She received a court order changing her first and middle names and stating that she “shall be designated as female on official documents generated, issued or maintained” by Oklahoma. Despite this court order, the Department of Health denied her request to change her birth certificate based on an executive order by Governor Kevin Stitt. As a result, for example, Fowler has not been able to “update her gender-related information with credit-related entities,” which have “insisted that they need a corrected birth certificate.”
Along with two other transgender individuals, Fowler filed suit to challenge Stitt’s policy in federal court as unconstitutional, in violation of the Equal Protection Clause and the Due Process Clause. A district court, however, dismissed the case as a matter of law without discovery. Fowler and the other plaintiffs appealed to the Tenth Circuit.
How did Judge Federico and the Tenth Circuit Rule and Why is it Important?
All three judges on the panel agreed with the lower court on the due process issue. But Judge Federico joined an opinion by Judge McHugh that overturned the lower court dismissal of the equal protection claim and sent the case back for the district court to go forward on that issue. Based on a careful review of the record and relevant case law, Judge McHugh explained that the state’s actions clearly “purposefully” discriminated on the basis of transgender status and, based on the Supreme Court’s decision in the Bostock case, on the basis of sex. Despite arguments by the dissent and the state, the court majority determined to “join the courts that have applied Bostock’s reasoning to equal protection claims.” Accordingly, she went on, the state is required by the constitution to justify the discrimination as being justified as “substantially related to a sufficiently important government interest.” At minimum she noted, it must be “rationally related to a legitimate governmental interest.”
Judge McHugh concluded that Fowler and the other plaintiffs clearly had a case and should have an opportunity to prove that the policy forbidding gender modifications on birth certificates did not meet the equal protection test. Indeed, she went on, the record suggests that the rule “cannot pass” even “rational basis review.” For example, Judge McHugh pointed out that the state’s claim that the policy is important to preserve “the accuracy of vital records” appeared insufficient because “even if transgender people amend the sex listed on their birth certificates” for their use, “Oklahoma retains and has access to original birth certificates.”
The majority opinion made possible by Judge Federico’s deciding vote is obviously important to Rowan Fowler and all other transgender individuals who want to change their Oklahoma birth certificates. Particularly in the Tenth Circuit, which includes Oklahoma, Colorado, Kansas, New Mexico, Utah, and Wyoming, it sets significant precedent concerning discrimination against transgender people. In addition, it serves as yet another reminder of the importance of promptly confirming more fair-minded judges to our federal courts.