Birth Certificate Gender Corrections: The Recurring Animus of Compulsory Sterilization Targeting Transgender Individuals

Author(s): Ostrowsky, Jon | Abstract: Nearly a century ago, the Supreme Court sanctioned compulsory sterilization in Buck v. Bell, echoing eugenicists and reasoning that “[i]t is better for all the world . . . [if] society can prevent those who are manifestly unfit from continuing their kind.” In addition to this eugenics-based rationale, compulsory sterilization in the early twentieth century also sought to punish and stigmatize LGBTQ persons, who were called “sexual deviants.” Today, at least fourteen states and one territory continue to—in effect—involuntarily sterilize transgender individuals. In these states, transgender individuals must undergo sex-reassignment surgery before they can correct the gender on their birth certificates. This Article argues that like many of America’s early sterilization laws targeting LGBTQ individuals, today’s surgical requirement laws seek to advance three forms of animus that are separate from eugenics. First, these laws seek to deny transgenderism. Second, these laws seek to punish or stigmatize perceived deviance. Third, the laws impose a view of heteronormative sexual ethics, which seeks to define what sexual conduct is tolerable in society. As transgender rights advocates mount a new wave of legal challenges, they should challenge laws requiring surgery to change one’s gender on a government-issued birth certificate. Such laws violate the fundamental right of bodily autonomy to choose and refuse medical treatment because they are not narrowly tailored to a compelling state interest. Instead, surgical requirement laws advance animus against transgender persons. These laws also echo the historical animus against LGBTQ individuals that motivated compulsory sterilization during the Buck era in the early twentieth century. Thus, litigation challenging surgical requirement laws presents an opportunity for the Court to definitively overturn Buck.