Ray v. McCloud, Case No. 2:18-cv-272

• Decision Date: 16 December 2020
• Docket Number: Case No. 2:18-cv-272
• Citation: 507 F.Supp.3d 925
• Parties: Stacie RAY, et al., Plaintiffs, v. Stephanie MCCLOUD, Director, Ohio Department Health, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

507 F.Supp.3d 925

Stacie RAY, et al., Plaintiffs,

v.Stephanie MCCLOUD, Director, Ohio Department Health, et al., Defendants.

Case No. 2:18-cv-272

United States District Court, S.D. Ohio, Eastern Division.

Filed December 16, 2020

Freda J. Levenson, Elizabeth Bonham, Aclu of Ohio, Jennifer S. Roach, Cleveland, OH, David J. Carey, Thompson Hine LLP, Columbus, OH, Gabriel Arkles, Pro Hac Vice, Malita Picasso, Pro Hac Vice, American Civil Liberties Union, New York, NY, John Knight, Pro Hac Vice, American Civil Liberties Union, Kara N. Ingelhart, Pro Hac Vice, Lambda Legal Defense and Education Fund, Inc., Chicago, IL, Peter C. Renn, Pro Hac Vice, Lambda Legal Defense and Education Fund, Inc., Los Angeles, CA, Susan Jane Becker, Avon Lake, OH, for Plaintiffs.

Jason J. Blake, Albert J. Lucas, Calfee Halter & Griswold, Columbus, OH, for Defendants.

OPINION AND ORDER

MICHAEL H. WATSON, JUDGE

Ohio is one of only two states that does not allow a transgender person to change the sex marker on their birth certificate. Stacie Ray ("Ray"), Basil Argento ("Argento"), Jane Doe ("Doe"), and Ashley Breda ("Breda," collectively "Plaintiffs") sue Stephanie McCloud¹ ("McCloud"), in her capacity as Director of the Ohio Department of Health ("ODH"), Karen Sorrell ("Sorrell"), in her capacity as Chief of the Ohio Office of Vital Statistics, and Judith Nagy ("Nagy"), in her capacity as State Registrar of the Ohio Office of Vital Statistics (collectively "Defendants") and ask this Court to find such a prohibition unconstitutional. ECF No. 1. Plaintiffs and Defendants have both moved for summary judgment. ECF Nos. 69, 71.² For the following reasons, the Court GRANTS Plaintiffs’ motion for summary judgment and DENIES Defendants’ motion for summary judgment.

I. BACKGROUND³

Plaintiffs are four transgender individuals born in Ohio who have been denied the ability to change the sex marker on their birth certificates to reflect their gender identities.

The Ohio Revised Code permits a person to correct a birth record that, among other things, "has not been properly or accurately recorded." Ohio Rev. Code § 3705.15. No portion of the Ohio Revised Code prohibits using § 3705.15 to change the sex marker on a birth certificate. Other portions of Ohio's statutory scheme governing vital statistics permits changes to a birth certificate to reflect adoptions and legal name changes. See Ohio Rev. Code §§ 3705.12, 3705.13.

Indeed, prior to 2016, Defendants permitted transgender individuals born in Ohio to change the sex marker on their birth certificates, if the transgender individuals obtained a court order, paid a processing fee, and completed an ODH-provided form. See Nagy Dep. 138–39, 150–152, ECF No. 55. At least ten transgender people born in Ohio successfully obtained sex-corrected birth certificates prior to 2016. Id. at 138–39.

Sometime in 2015, after consultation with ODH in-house counsel and the Ohio Governor's office, ODH "re-reviewed" its birth certificate policy ("Policy")⁴ and decided to no longer permit changes to the sex marker on Ohio birth certificates when the basis for that change was that the person was transgender. Id. at 129–34. Ohio continues to permit other changes to birth certificates (such as for adoption and legal name) as well as alterations to the sex field if the basis for the request is a mistake or where the physician observed atypical genitalia and records the sex as "U" for "undetermined" at birth. Id. at 65–66, 73–74; see also Ohio Rev. Code §§ 3705.12, 3705.13.

Plaintiffs challenge Defendants’ Policy and contend that it violates their substantive due process rights to informational privacy under the Fourteenth Amendment, discriminates against them in violation of the equal protection clause of the Fourteenth Amendment, and compels their speech in violation of the First Amendment. Compl., ECF No. 1. Defendants contend that there are no constitutional violations or that the state's justifications outweigh any violations. Defendants’ justifications for prohibiting sex marker changes on the basis of being transgender are to maintain the historical accuracy of their birth records and prevent fraud.

The Court previously issued an Opinion and Order addressing Plaintiffs’ substantive due process rights and denying Defendants’ motion to dismiss. Op. and Order, ECF No. 47.

II. STANDARD OF REVIEW

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The movant has the burden of establishing that there are no genuine issues of material fact, which may be accomplished by demonstrating that the nonmoving party lacks evidence to support an essential element of its case. Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Barnhart v. Pickrel, Schaeffer & Ebeling Co. , 12 F.3d 1382, 1388–89 (6th Cir. 1993). To avoid summary judgment, the nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; accord Moore v. Philip Morris Cos. , 8 F.3d 335, 340 (6th Cir. 1993). "[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In evaluating a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co. , 398 U.S. 144, 158–59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) ; see Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (stating that the court must draw all reasonable inferences in favor of the nonmoving party and must refrain from making credibility determinations or weighing evidence). Furthermore, the existence of a mere scintilla of evidence in support of the nonmoving party's position will not be sufficient; there must be evidence on which the jury reasonably could find for the nonmoving party. Anderson , 477 U.S. at 251, 106 S.Ct. 2505 ; see Copeland v. Machulis , 57 F.3d 476, 479 (6th Cir. 1995) ; see also Matsushita , 475 U.S. at 587–88, 106 S.Ct. 1348 (finding reliance upon mere allegations, conjecture, or implausible inferences to be insufficient to survive summary judgment).

Here, the parties have filed cross-motions for summary judgment. Each party, as a movant for summary judgment, bears the burden of establishing that no genuine issue of material fact exists and that he or she is entitled to judgment as a matter of law. The fact that one party fails to satisfy that burden does not automatically indicate that the opposing party or parties has satisfied the burden and should be granted summary judgment on the other motion. In reviewing cross-motions for summary judgment, courts should "evaluate each motion on its own merits and view all facts and inferences in the light most favorable to the non-moving party." Wiley v. United States , 20 F.3d 222, 224 (6th Cir. 1994). "The filing of cross-motions for summary judgment does not necessarily mean that the parties consent to resolution of the case on the existing record or that the district court is free to treat the case as if it was submitted for final resolution on a stipulated record." Taft Broad. Co. v. United States , 929 F.2d 240, 248 (6th Cir. 1991) (quoting John v. State of La. (Bd. of Trs. for State Colls. & Univs.) , 757 F.2d 698, 705 (5th Cir. 1985) ). The standard of review for cross-motions for summary judgment does not differ from the standard applied when a motion is filed by one party to the litigation. Taft Broad. , 929 F.2d at 248.

III. ANALYSIS

Plaintiffs move for summary judgment and argue that Defendants’ Policy violates their constitutional rights under 42 U.S.C. § 1983. Mot., ECF No. 69. Defendants likewise move for summary judgment contending that Ohio's statutory scheme is constitutional. Mot., ECF No. 71. The Court will analyze Plaintiffs’ substantive due process right-to-privacy claim and equal protection claim before deciding the level of scrutiny to apply.

A. As-Applied vs. Facial Challenge

As an initial matter, the Court must whether Plaintiffs’ lawsuit is best classified as an as-applied or facial challenge. See Op. and Order 9–13, ECF No. 47.

Defendants characterize Plaintiffs’ challenge as a facial challenge to Ohio's statutory scheme governing vital statistics. See Ohio Rev. Code § 3705.01 et seq. Plaintiffs, in turn, argue that they bring both as-applied and facial challenges. In other words, because the statute itself is silent as to whether a transgender person can change the sex marker on their birth certificate, Plaintiffs contend they challenge the statute only as it is applied to them, but because Defendants’ Policy explicitly denies changing the sex marker for transgender persons, they challenge the Policy itself (i.e. , Defendants’ interpretation of the silent statute as it relates to all transgender people) as facially unconstitutional.

Facial challenges, at their core, contend that every use and application of a statute is unconstitutional as it is written. See Reno v. Flores , 507 U.S. 292, 301, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) ("To prevail in such a facial challenge, [plaintiffs] must establish that no set of circumstances exists under which the [statute] would be valid." (internal citations, quotation marks, and alterations omitted)). Because Plaintiffs do not challenge each and every application of Ohio's vital statistics statutory scheme, but do challenge each and every application of Defendants’ Policy, the Court agrees that Plaintiffs bring either an as-applied challenge to the statute or a facial challenge to Defendants’ Policy. Cf. Winston v. City of Syracuse , ...