Key Points:

• The 9th U.S. Circuit Court of Appeals ruled that transgender individuals do not need sex-reassignment surgery to change the gender on their birth certificate

• State law allows the Department of Health Services to make the birth certificate change if there is a court order

• Some state Republicans have been trying to further restrict who can make such a change on their birth certificates

PHOENIX — Transgender Arizonans can get amended birth certificates showing their gender identity without first undergoing surgery, a federal appeals court ruled Tuesday.

The 9th U.S. Circuit Court of Appeals said Arizona law provides two ways to change the gender marker on a birth certificate: documentation of sex-reassignment surgery or a court order directing the Arizona Department of Health Services to make the change.

The ruling is a victory for transgender Arizonans who do not want or are not ready for surgery and have been unable to obtain amended birth certificates. The court said state judges must consider such requests and that the health department must honor them.

Judge Roopali Desai, writing for the 9th Circuit, rejected arguments by Senate President Warren Petersen and House Speaker Steve Montenegro that surgery is the only way to obtain an amended birth certificate.

Desai said a separate Arizona statute directs the health department to amend a birth certificate when a court orders it.

The ruling stems from a 2020 lawsuit filed by transgender individuals. Rachel Berg, an attorney for the National Center for LGBT Rights who represented two of the plaintiffs, said changing a birth certificate can be an important part of the process of aligning a person’s life with their gender identity.

That process can include hormone therapy or surgery, she said, but also can begin with changing a person’s name, using different pronouns, and adopting clothing and grooming habits associated with their gender identity.

Without an amended birth certificate, Berg said, transgender people can effectively be forced to disclose their status whenever they are required to present the document.

U.S. District Court Judge James Soto sided with Berg in an earlier ruling.

He said the health department had previously interpreted the law to deny amended birth certificates except in cases where a doctor attested that the person had undergone surgery. So he issued an order deleting the word “operation” from the statute and related regulations.

Montenegro and Petersen appealed, arguing that there are legitimate reasons to limit who can get an altered birth certificate, including “preventing fraud and preserving the stability of the vital-records system.”

Their attorney, Justin Smith, said there are other reasons to preserve the surgery requirement.

“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.

An ‘unnecessary’ ruling

In her ruling Tuesday, Desai said Soto and the lawmakers are wrong.

She said it was unnecessary for the trial judge to order the removal of the word “operation” from state law because transgender individuals can get a court order directing the health department to issue an amended certificate.

Desai acknowledged that some Arizona judges have previously refused to order the Department of Health Services to issue amended birth certificates without proof of surgery.

“Indeed, two of the named plaintiffs were apparently denied a court order for that reason,” she wrote. 

And Desai said there was some testimony that the judges ruled that way because they didn’t think the health department would honor their orders absent the evidence of a sex-change operation.

But Desai said such a move by trial judges “is improper based on the plain text of the statute.”

“And for a court to decline to issue an order because it predicts that the Arizona Department of Health Services ‘wouldn’t honor it,’ is doubly improper,” she wrote, pointing out that, at least at present, the department is not taking such a position.

“The statute leaves no discretion to the agency,” Desai said. 

Conversely, she said, the fact that there is that other option — the one that does not require surgery — undermines the arguments by Montenegro and Petersen that it is only on receipt of medical certification of a sex-change operation that the health department can issue a new birth certificate.

There was no immediate response from the Republican legislative leaders.

GOP attempts to tighten the rules

Arizona Republicans sought to go further in 2025.

State Rep. Rachel Keshel, R-Tucson, introduced legislation that would have eliminated all options for changing the gender marker on a birth certificate, even after sex-reassignment surgery. She said the proposal would protect “the integrity of government-issued documents with true biological facts.”

She had the backing of a number of Republican lawmakers. 

“I was born on a certain day,” said Rep. Alexander Kolodin of Scottsdale. “I don’t have a constitutional right to have a different birth date on my birth certificate.”

State Rep. Khyl Powell of Gilbert called it a matter of “natural law.”

“When we are born under the natural law of procreation, we are given either one or the other of the biological sex,” he said, something he said is reflected in a birth certificate and should not be subject to alteration.

Gov. Katie Hobbs vetoed the measure. 

She did not address the underlying question of whether the state should allow amended birth certificates. Instead, she chided lawmakers for even sending her the proposal.

“This bill will not lower costs, will not increase opportunity, and will not enhance security or freedom for Arizonans,” the governor wrote. “I encourage the Legislature to focus on real issues that matter and impact people’s everyday lives.”