Governor's order throws transgender Oklahomans into legal limbo
TULSA — On the second Wednesday of every month, attorney Josh Payton can be found behind a gray table downtown at the Dennis R. Neill Equality Center.
Clients say Payton’s clinic and services provide them with pathways to proper medical care and detours around housing and workplace discrimination.
Since starting the clinic in October 2020, Payton has helped more than 40 transgender Oklahomans get court orders to amend their name and gender on birth certificates. He has 30 waiting to file.
“They want a piece of paper that validates them from the beginning. I think that’s why it’s so important to them,” Payton said. “They are who they are, they’re recognized for who they are, and they’re not really ashamed in any way.”
The hope his services give clients has faded some since late last year, when the governor’s executive order disrupted the process.
Historically, Oklahomans could change their gender between male and female on their birth certificate by presenting a court order to the state health department. Oklahoma State Department of Health established a process for a third gender option last year — non-binary, an umbrella term for genders other than male and female, which would be represented by the letter “X.”
On Oct. 7, the first non-binary birth certificate was issued in Oklahoma.
On the morning of Oct. 20, a NonDoc story broke the news. Within hours, Gov. Kevin Stitt announced he would take action against the state health department.
“I believe that people are created by God to be male or female. Period,” Gov. Kevin Stitt said in a statement. “There is no such thing as non-binary sex and I wholeheartedly condemn the purported OSDH court settlement that was entered into by rogue activists who acted without receiving proper approval or oversight.”
On Nov. 8, Stitt signed an executive order demanding the state health department stop issuing birth certificates with non-binary gender markers.
As a result of the executive order, the state health department is no longer authorized to accept court orders for male and female changes, Oklahoma State Department of Health’s legal team said in an email. State law will only permit gender marker changes if an error was made by the scrivener.
Oklahoma, Tennessee and Ohio are the only states that do not allow any kind of gender marker changes, though a recent lawsuit cleared the way for transgender Ohioans to amend their birth certificates. Residents in 12 states and the District of Columbia have a third gender option when it comes to amending their birth certificates. Among neighboring states, only Colorado allows residents to do so.
Only 103 Oklahomans have changed their gender marker on their birth certificate since 2018, according to health department records.
Oklahoma’s health department’s short-lived process for getting a non-binary gender marker resulted from the settlement of a lawsuit filed by an Oregon resident. Kit Loreleid, who was born in Oklahoma, sought to change their birth certificate gender marker to “X” to reflect they are non-binary.
Though Oregon has a third gender option on state identification, birth certificates and passports are among the primary documents required for the change. Using a passport would not have been an option because the first non-binary U.S. passport wasn’t issued until October last year. Loreleid sued after Oklahoma’s state health department denied their requested change in 2020.
A settlement allowed Lorelied to amend their birth certificate, an option no longer available to Oklahomans due to Stitt’s executive order.
After the health department announced getting a non-binary gender marker was an option, Sen. Micheal Bergstrom, R-Adair, filed State Bill 1100, which would restrict gender markers to male and female.
Payton, the Tulsa-based attorney, said although the executive order bans non-binary changes, some Oklahoma judges are still willing to grant court orders for male and female changes.
“The main conflict is that judges, and now the governor, are interpreting the law in a way that’s wrong to disenfranchise people from something that if they were in Kansas or Missouri could do easily,” Payton said. “For judges to say they don’t have authority is just not in good faith. The constitution says they have unlimited jurisdiction, but they choose to require statutes or other authority. Quite a bit of what a judge does in trial is based on discretion.”
The judiciary’s responsibility is to interpret the law, not to make or enforce it, said Don Andrews, the presiding judge for Oklahoma County District Court.
Although he can’t speak for those seeking a non-binary designation since he has never had a case for one, for people seeking male or female changes, he said there’s a “track record.”
“Based on that, I’d have to rely on precedents until there’s been a change in the law,” Andrews said. “That’s how we approach every issue. This is a sensitive subject obviously, but that’s the court’s role.”
The executive order encourages the Legislature to amend the existing statute authorizing the issuance of birth certificates by the state health department. Until the court is told they are prohibited from granting court orders for male-to-female and female-to-male gender marker changes, Andrews said judges will continue to review them on a case-by-case basis.
Prior to the executive order, Payton said he succeeded in gaining court orders for clients seeking birth certificate gender marker changes in 37 of 39 applications. Since the order, he’s succeeded in 7 of 9 attempts. Yet, those with court orders now are left in limbo due to the health department rejecting the requests.
Grey Mitchell drove from Oklahoma City late last year for Payton’s monthly clinic. Mitchell, who is non-binary and uses they/them pronouns, sought a change to a male designation in light of Stitt’s executive order.
“I wasn’t sure how I wanted to proceed before I started (hormone replacement therapy), but now that I am presenting more male, it just makes sense for me to make that change,” Mitchell said. “I’m out in my workplace and people already knew that I’m trans, but if I were to get pulled over I don’t know who that would be. You just never know who you’re going to run into in Oklahoma. So just for safety, I would want someone to be able to look at my ID and have my face match what they see there — at least what their idea of gender is.”
Nicole McAfee, the executive director of Freedom Oklahoma, a statewide LGBTQ+ advocacy organization, said because judges facing an election year are even less inclined to grant court orders in fear of political blowback.
“While you don’t have to have a birth certificate to do things like apply for housing or open a bank account, get a job, all of the identification that you do use is based off that birth certificate,” McAfee said.
Shelly Skeen, senior attorney for Lambda Legal, a national nonprofit that advocates for the full recognition of civil rights for LGBTQ+ people and people living with HIV, said the Legislature does not “have the authority to pass a law that has already been found to be unconstitutional in every state but Tennessee.”
“When you target one set of people for some reason, and there’s a law that excludes them from access to what everyone else has, then the government has to have a compelling governmental interest that is narrowly tailored,” Skeen said. “Meaning that when the law is implemented, it only harms the people that the law says are going to be harmed for that compelling governmental reason. So you’ve got two pieces there. One, (the) government has to show that reason, whatever that is. And then number two, they’ve got to show that the law doesn’t include too many people.”
For Mitchell, the fight for the acknowledgment of non-binary people in Oklahoma is just beginning.
“I think it’s important we keep advocating for this. For anyone who is trans, but particularly for non-binary people, who’ve kinda been in the shadows the longest,” Mitchell said.
Payton left his home state of Missouri in 2013 to work in his family business that helps bring Broadway shows to Tulsa. He had stopped practicing law but took and passed the Oklahoma bar exam in 2020, inspired by his youngest sibling coming out as transgender and a desire to help others seeking name and gender marker changes.
While Payton and many of his clients are expecting to see further pushback and anti-trans legislation passed when the legislative session begins in February, he plans to continue helping non-binary and transgender Oklahomans.
“I have not yet met a person who hasn’t said ‘I’ll take this all the way. I want to appeal, I want to fight, I want to do anything I can to help this cause,” Payton said. “I can’t have hope, but I have faith.”
The Trans Lifeline Hotline offers a peer support phone service operated by transgender and non-binary people. For help, call 877-565-8860 or click here.
Oklahoma Watch, at oklahomawatch.org, is a nonprofit, nonpartisan news organization that covers public-policy issues facing the state.