Legislative lawyers warn a bill barring transgender Utahns from legally changing their sex on birth certificates may be unconstitutional

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Legislative lawyers are warning a proposed bill to ban transgender Utahns from legally changing their gender on their birth certificate may be found unconstitutional if the law is challenged in court.

According to a confidential memo obtained by UtahPolicy.com, there is a “moderate possibility” that HB153, sponsored by Rep. Merrill Nelson, R-Granstville, would be found unconstitutional by a Utah court.

The legal memo outlines three possible arguments against the legislation.

The bill could potentially violate the Equal Protection Clause of the Fourteenth Amendment as it would mandate different treatment for transgender Utahns under state law.

Secondly, a person could argue that having information on their birth certificate that does not match up with their gender would require them to disclose details about their health, which would potentially violate their right to privacy. The memo says this argument would hinge on “whether a transgender individual has a reasonable expectation of privacy when it comes to their transgender status.”

There’s no clear legal precedent in the second example. A Michigan court found that requiring a person to carry an ID with a conflicting gender was a violation of their right to privacy, but a North Carolina federal court said there’s no constitutionally protected interest in an individual’s transgender status.

A court could also rule preventing a person from changing their gender on their birth certificate violates both the First Amendment free speech protection and a similar provision in the Utah Constitution. A federal district court in Puerto Rico ruled in 2018 that prohibiting a transgender person from changing their gender compelled speech in violation of the First Amendment. A similar argument could be used in Utah to violate the law.

Nelson’s bill defines gender at birth, and then prohibits a judge from granting a request allowing a transgender person to change their gender marker on official birth records.

UtahPolicy.com previously reported that Nelson’s bill is in response to an effort from the 2018 legislative session that would have done the opposite, allowing judges to grant the request to change the gender on a birth certificate.

The GOP majority on Capitol Hill did away with publicly available constitutional notes during last year’s general session but, as our Bob Bernick writes, there’s nothing to prevent individual legislators from requesting, then releasing to the public or media, a legal opinion from legislative legal counsel about the constitutionality of individual bills.