Updated gender markers decimate their ability to restrict the trans community. That’s why they’re coming for that next.

Attacks against identity documents go far beyond simple cruelty, but they also reveal a key weakness in transphobic legislation.

In recent years, attacks on trans people have made it to the realm of government documents. So far, Oklahoma, Kansas, Florida, Texas, Indiana, and Iowa have permanently banned trans people from changing the sex marker on their birth certificates since 2021, with Tennessee never having allowed changes at all, a policy going back almost 50 years. And when Trump entered office, the Department of State stopped allowing gender marker changes for passports.

These attacks aren’t frivolous. I don’t even think that the main intention of these policies is to demean us. Based on history and legal theory, I’m inclined to believe the overarching goal of banning birth certificate changes is to create a weapon, one far more difficult to counteract than any of their previous attempts.

An Instrument of Discrimination

Birth certificates are often used in a legal setting as the definitive way to determine an individual’s sex. After all, they’re the first document issued to a newborn, and for anti-trans laws especially, they’re incredibly crucial. In one of the first bathroom bans in the United States, North Carolina’s HB 2, this is put on full display. In the since-repealed law, “biological sex” is defined as “the physical condition of being male or female, which is stated on a person's birth certificate.”

Although other laws like Florida’s HB 1521 (a bathroom ban) attempt to circumvent this by defining the sex of a person as “belonging, at birth, to the biological sex which has the specific reproductive role of producing sperm/eggs,” that doesn’t actually hold up in court, as the state has no reasonable way to prove your sex outside of your birth certificate. The fact is, birth certificates will almost always have the final say in what sex an individual is in the eyes of the law.

In the past, this hasn’t just applied to sex. Up until the 1980s, birth certificates also kept track of race, and because of that, they were the backbone of the Southern United States’ Jim Crow laws. Like birth certificates do with sex now, they gave the government an easy and definitive way to categorise its citizens, but in the case of American apartheid, they were weaponised. That’s what Republicans are trying to do now.

A Double-Edged Sword

As I said earlier, 7 states no longer allow birth certificate changes. And that’s certainly cruel. As these attacks ramp up, trans people who were born in these states will have a much harder time navigating should they travel to other states with restrictions. But for everyone else, an updated birth certificate would actually serve as a defense against these bans, especially if you find yourself in a state different from the one you were born in.

One of the things that is fairly unique to the American system of birth records is that they are controlled by the states, not the federal government. Now, while that may sound like nothing more than a trivial fact, it’s crucial. That’s thanks to the Full Faith and Credit Clause of the Constitution, which states that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” To put it simply, this means that states do not have the power to question laws, documents, or legal rulings from other states. This clause applies to birth certificates, and as such, out-of-state updated birth certificates present a powerful loophole to any anti-trans laws Republicans may pass, a loophole they do not have the power to close.

So if Marcy Rheintgen, the trans woman who bravely defied Florida’s bathroom ban and is now facing a trespassing charge, had possessed an updated birth certificate from before Florida stopped allowing changes, it’s likely that no charges against her would’ve stuck. That's especially true if said birth certificate was from a state other than Florida. But because her driver’s license was reverted by the state of Florida and given that she was never able to update her birth certificate (as she told me in this Reddit AMA from earlier today), her only way out of a conviction is to challenge the law itself.

The future of these attacks is unclear. Not every anti-trans state has implemented these measures, and in some states like Montana, identity document change bans have been blocked in court. It’s also probable that a few red states will never reach this stage. But one thing is certain: this can change very quickly.

So as Republican-controlled states continue to clamp down on gender marker changes, I urge you to update your birth certificates as soon as you’re able, especially if you live in a red state like Idaho, Alaska, or West Virginia, which are controlled by Republicans and currently don’t require surgery. And as it looks increasingly likely that Trump’s executive order targeting passport changes will be blocked in court for at least a few months, it’s imperative that you get all your documents in order now. Your safety may depend on it.