Nessel: Sex-reassignment policy for birth certificate change unconstitutional

Lansing — Michigan Attorney General Dana Nessel declared Wednesday that a state law requiring sex-reassignment surgery to change the sex designation on a person's birth certificate is unconstitutional.

Nessel issued her formal opinion in response to a request from Elizabeth Hertel, director of the state Department of Health and Human Services in the Democratic administration of Gov. Gretchen Whitmer. The Democratic attorney general said the policy violates residents' rights to due process and equal protection.

"It is not clear why Michigan’s law for changing the sex designation on birth certificates, when used for identification purposes, would require a transgender person to undergo invasive, often irreversible and expensive surgery," Nessel wrote.

Nessel, who was elected in 2018, said the requirement imposes "a unique burden on a transgender person." The surgery could result in a person's sterilization, she wrote.

"No state interest supports such an unnecessary burden, as the laws of many other states confirm," she said.

Connecticut, the District of Columbia, Hawaii, Illinois, Iowa, Maryland and Massachusetts allow for a sex-designation change on a birth certificate if a person reports a lesser form of clinical intervention, including surgical, hormonal or other treatment clinically appropriate for a gender transition, according to the attorney general's opinion.

The U.S. Department of State requires an individual receive "appropriate clinical treatment for transition" in order to change the sex marker on their individual passport and gives physicians the ability to determine what treatment is “appropriate," the opinion added.

"The law violates Michiganders’ most basic and fundamental protections under the Constitution," Nessel said in a statement. "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."

cmauger@detroitnews.com