ÃÛÌÒÓ°ÏñAV

House Speaker Steve Montenegro and Senate President Warren Petersen contend that U.S. District Court Judge James Soto erred in concluding that the law amounts to a requirement for transgender individuals to submit to surgery to get a birth certificate that reflects their identified gender.

They say there are legitimate reasons for limiting who can get an altered birth certificate, including "preventing fraud and preserving the stability of the vital-records system.'' And now they are asking the 9th Circuit Court of Appeals to overturn the 2024 ruling.

But time is running out.

Soto last week rejected a request by the pair to stay enforcement of his ruling while they appeal. And that means his decision becomes official -- and transgender individuals who have not undergone sex-change surgery can get amended Arizona birth certificates -- on April 30 unless the appellate court intervenes.

The lawsuit involves gender dysphoria, a condition where a person's gender identity does not match the sex assigned at birth — the one of an individual's birth certificate.

An attorney for two children who sued argued that one of the treatments is to align the person's life with his or her gender identity. And while that could include hormone-replacement therapy and surgery, Rachel Berg said it also starts with things like changing their names, using different pronouns, adopting clothing and grooming habits associated with their peers of the same gender identity.

Soto agreed.

"Not every transgender person needs surgery to complete a gender transition,'' he wrote. "Starting social transitioning and other recommended therapy may eliminate the need for any potential surgical intervention.''

That, the judge said, is what has been happening in the case of the children who sued.

But Soto said that, absent a birth certificate that reflects their gender — something the state has refused to issue absent surgery — transgender individuals cannot continue their social transition. And, acknowledging the arguments of the challengers, the judge said that presents problems when they are in situations where they are required to present a birth certificate.

"Their outward physical appearance will not fit with the gender marker on their birth certificate,'' the judge said of their concerns. "Thus, if these documents are presented to others, they would, of course, be forced to involuntarily out themselves as transgender.''

Soto ruled the health department can accept — and would have to recognize — statements by doctors that an individual is undergoing transition, whether or not that person chooses to go through or wants surgery.

It is that decision being appealed not only by the state health department but separately by Montenegro and Petersen, who were given permission by Soto to defend the law.

Attorney Justin Smith, who represents the pair, is telling the appellate court that the surgery requirement makes sense.

"The new sex listed on an amended birth certificate could be objectively verified,'' he said on their behalf. "The new sex generally could be verified through a physical examination by a medical professional.''

That, he said, is not possible if the person has not gone through a surgical sex change.

And there's something else.

Smith said if someone has undergone sex-change surgery and received a new birth certificate, as is currently allowed, it is "vanishingly unlikely'' that a second amendment would be necessary.

"The gender identity of at least some transgender individuals, however, can change over time,'' he told the appellate court, saying there is evidence that some individuals "detransition'' later in life. "In those cases, the state may need to amend an individual's birth certificate multiple times, creating confusion, cost, and administrative burdens.''

Smith acknowledged that there is another option, one that preserves the original birth certificate as a sealed record of the sex of a child at birth, but still provides transgender individuals with one that matches their identity. But he dismissed that as unworkable.

"This approach would invite errors, confusion, and administrative burdens,'' Smith said. Anyway, he told the appellate court, the cost-benefit analysis of doing that is totally within the purview of state lawmakers.

Ultimately, he said, Soto's decision apparently rests on the right to refuse unwanted medical treatment. But Smith said that is flawed.

"The statute does not prevent any person from refusing unwanted medical treatment,'' he told the appellate court. "Transgender individuals in Arizona remain free to decline sex change operations.''

But all this still runs up against Soto's reasoning about why people may want an amended birth certificate — a document needed for various purposes, including passports — yet may not want to undergo surgery.

"Their outward physical appearance will not fit with the gender marker on their birth certificate,'' the judge said of their concerns in his ruling. "Thus, if these documents are presented to others, they would, of course, be forced to involuntarily out themselves as transgender.''

And that, he said, results in unequal treatment.

"For non-transgender individuals — the vast majority of whom have an accurate birth certificate — they are not presented with the unlawful choice of being stripped of their bodily autonomy or face discrimination, harassment, and potential violence,'' Soto wrote.

And he said there are studies to support the contention of transgender challengers that those who have to present birth certificates that do not match their identity, such as in school registration, are subject to being harassed, discriminated against or assaulted.