Advance Notice: Briefs

Nessel: DHHS surgery requirement for birth certificate change is unconstitutional, no longer required

By: - June 30, 2021 12:40 pm

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A 43-year-old state law requiring transgender residents to show proof of gender-affirming surgery before being able to change their birth certificate is unconstitutional, Attorney General Dana Nessel declared in a formal opinion Wednesday.

Her opinion on Michigan Compiled Law (MCL) 333.2831(c) had been requested by Department of Health and Human Services (DHHS) Director Elizabeth Hertel in February. Hertel had specifically asked whether the law violates Michiganders’ constitutional rights.

“The law violates Michiganders’ most basic and fundamental protections under the Constitution,” Nessel concluded in her opinion, noting that it creates a “discriminatory double standard.”

“As written, it is a tool of intolerance that treats one group of people different from the rest of us by requiring thousands of residents to undergo expensive and invasive medical procedures in order to amend their birth certificates to reflect their true identity,” Nessel said. “… If that aspect of the certificate can reflect who will love and care for the child, so should the listed sex be a true reflection of how the person identifies.”    

The law in question was last amended in 1996. It currently states that, if an individual wishes to establish a new Michigan birth certificate, they must present proof of “sex-reassignment surgery” or a DHHS offer will be forced to deny their request.

In Opinion #7313, Nessel determines that the law “violates an individual’s equal protection rights under the United States and Michigan Constitutions,” and “may also violate an individual’s due process rights under the United States and Michigan Constitutions.”

“Removing this undue burden on individuals seeking to change their sex designation assigned at birth to reflect their true gender identity on their birth certificates is the right thing to do,” Hertel said Wednesday. “Consistent with the opinion, applicants will no longer need to undergo sex reassignment surgery or to provide proof that surgery has been performed. MDHHS is already working on a process to assist individuals in making these changes.”

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Laina G. Stebbins
Laina G. Stebbins

Laina G. Stebbins covers the environment, Native issues and criminal justice for the Advance. A lifelong Michigander, she is a graduate of Michigan State University’s School of Journalism, where she served as Founding Editor of The Tab Michigan State and as a reporter for the Capital News Service. When Laina is not writing or spending time with her cats, she loves art and design, listening to music, playing piano, enjoying good food and being out in nature (especially Up North).