Opposition Brief — Kevin Stitt, Governor of Oklahoma, et al., Petitioners v. Rowan Fowler, et al.

No. 24-801

IN THE

Supreme Court of the United States

________________

KEVIN STITT, in his official capacity as GOVERNOR OF

OKLAHOMA, et al.,

Petitioners,

v.

ROWAN FOWLER, et al.,

Respondents.

________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE TENTH

CIRCUIT

________________

BRIEF IN OPPOSITION

________________

Peter C. Renn

E. Joshua Rosenkranz

LAMBDA LEGAL DEFENSE

Counsel of Record

AND EDUCATION FUND,

Rachel G. Shalev

INC.

ORRICK, HERRINGTON &

SUTCLIFFE LLP

800 S. Figueroa Street

51 West 52nd Street

Suite 1260

New York, NY 10019

Los Angeles, CA 90017

jrosenkranz@orrick.com

Karen Keith Wilkins

Nicole Ries Fox

1515 S. Denver Ave.

Emily Minton Mattson

Tulsa, OK 74119

ORRICK, HERRINGTON &

SUTCLIFFE LLP

355 S. Grand Avenue

Suite 2700

Los Angeles, CA 90071

Counsel for Respondents Rowan Fowler, Allister Hall

and Carter Ray

Sasha Buchert

LAMBDA LEGAL DEFENSE

AND EDUCATION

FUND, INC.

1776 K Street NW,

Suite 722

Washington, DC 20006

Shelly L. Skeen

Nicholas Hite *

LAMBDA LEGAL DEFENSE

AND EDUCATION

FUND, INC.

3500 Oak Lawn Avenue,

Suite 500

Dallas, Texas 75219

Additional Counsel for Respondents Rowan

Fowler, Allister Hall and Carter Ray

* Practice currently limited to Louisiana only, as well as federal courts where admitted. Not currently licensed in Texas; supervised by Texas-admitted attorneys while awaiting admission

to the Texas Bar.

i

QUESTION PRESENTED

For at least 14 years, Oklahoma provided

transgender people amended birth certificates listing

sex designations consistent with their gender

identity. As with other amended birth certificates,

Oklahoma retained the original birth certificates. In

2021, Oklahoma’s Governor abruptly reversed course

and categorically banned transgender people from

changing the sex designation on their birth

certificates.

The question presented is:

Did the Tenth Circuit correctly hold that

Respondents plausibly alleged that Oklahoma’s

decision to stop providing transgender people

amended birth certificates stating their sex consistent

with their gender identity violated their equal

protection rights?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................ i

TABLE OF AUTHORITIES .................................... iii

INTRODUCTION ..................................................... 1

STATEMENT OF THE CASE .................................. 3

REASONS TO DENY CERTIORARI ..................... 10

I.

Any Split Is Shallow At Best And Would

Benefit From Further Percolation ................... 10

II. The Preliminary Posture Renders This

Case A Poor Vehicle For Plenary Review

Or A GVR. ......................................................... 13

III. The Decision Below Follows This Court’s

Precedents And Is Correct. .............................. 15

A. The Tenth Circuit was right that

Oklahoma’s policy discriminates

against transgender people. ....................... 16

B. The Tenth Circuit was right that

Oklahoma’s policy plausibly fails even

rational basis review ................................... 19

C. Petitioners and their amici greatly

exaggerate the implications of the

decision below.............................................. 24

CONCLUSION ........................................................ 26

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Bostock v. Clayton County,

590 U.S. 644 (2020)................................................9

Brotherhood of Locomotive Firemen v.

Bangor & Aroostock R.R. Co.,

389 U.S. 327 (1967)..............................................14

FCC v. Beach Commc’ns, Inc.,

508 U.S. 307 (1993).................................. 19, 20, 24

Gore v. Lee,

107 F.4th 548 (6th Cir. 2024) .................. 11, 12, 20

Hamilton-Brown Shoe Co. v. Wolf Bros.

& Co.,

240 U.S. 251 (1916)..............................................14

Maryland v. Baltimore Radio Show,

338 U.S. 912 (1950)..............................................11

Maslenjak v. United States,

582 U.S. 335 (2017)..............................................11

Mount Soledad Mem’l Ass’n v. Trunk,

567 U.S. 944 (2012)..............................................13

Nordlinger v. Hahn,

505 U.S. 1 (1992)..................................................20

Pers. Adm’r of Mass. v. Feeney,

442 U.S. 256 (1979)..............................................18

Plyler v. Doe,

457 U.S. 202 (1982)..............................................24

iv

Tuan Anh Nguyen v. INS,

533 U.S. 53 (2001)................................................25

Vill. of Arlington Heights v. Metro.

Hous. Dev. Corp.,

429 U.S. 252 (1977)................................ 8, 9, 16, 17

Virginia Military Inst. v. United States,

508 U.S. 946 (1993)..............................................14

Washington v. Davis,

426 U.S. 229 (1976)..............................................16

Williams v. Illinois,

399 U.S. 235 (1970)..............................................23

Statutes

Okla. Stat. tit. 63, § 1-316.....................................4, 21

Okla. Stat. tit. 63, § 1-321.........................................21

Okla. Stat. tit. 63, § 1-321(C) ......................................4

Okla. Stat. tit. 63, § 1-321(H) .....................................6

Okla. Stat. tit. 63, § 1-323(A) ....................................21

Okla. Stat. tit. 63, § 1-323(B) ....................................21

Okla. Stat. tit. 63, § 1-323(C) ....................................21

Okla. Stat. tit. 63, § 1-323(C)(1) ...............................22

Okla. Stat. tit. 63, § 1-323(C)(4) ...............................22

Okla. Stat. tit. 70, § 1-125(A)(1) ...............................23

Okla. Stat. tit. 70, § 27-106(D) .................................23

Other Authorities

Class Action Complaint, Orr v. Trump,

No. 1:25-cv-10313 (D. Mass Feb. 7,

2025) .....................................................................11

v

Jaclyn Diaz, Trump’s Passport Policy

Leaves Trans, InterSex Americans in

the Lurch, NPR (Feb. 21, 2025),

https://tinyurl.com/n8y4x2b7 ..............................11

Equality Maps: Identity Document

Laws and Policies, Movement Advancement Project, https://tinyurl.com/2ew2x3ub (last visited

Apr. 9, 2025) .........................................................11

H.B. 3219, 59th Leg., Reg. Sess. (Okla.

2024) .......................................................................6

Transcript of Oral Argument, United

States v. Skrmetti, No. 23-477 (U.S.

Dec. 4, 2024) .........................................................15

United States v. Skrmetti,

No. 23-477 (U.S.) ....................................................1

INTRODUCTION

The Petition for a Writ of Certiorari in this case

should be denied for the simple reason that it is premature. And even if the issue were ripe for this Court’s

review, review is unwarranted because the decision

below faithfully applies this Court’s precedents and

takes proper account of the specific circumstances underlying the equal protection claim in this case.

To the extent there is a division of authority over

the constitutionality of laws banning transgender

people from amending their birth certificates, it is

shallow and recent: Only two courts of appeals have

weighed in, and both just in the last year. As the

Tenth Circuit’s decision below shows, the answer may

depend on the circumstances on the ground. Additional courts, assessing different fact patterns, could

illuminate important aspects of the constitutional

question in a way that would aid this Court in any

future review.

This Court’s imminent decision in United States

v. Skrmetti, No. 23-477, further weighs against review

at this juncture. Although the level of scrutiny that

applies to discrimination against transgender people

was not decisive in this case, lower courts should have

a chance to apply Skrmetti to other fact patterns before this Court decides the next case about the rights

of transgender people.

Moreover, the case comes to the Court in an interlocutory posture, at the pleading stage. The Tenth

Circuit reversed the grant of Petitioners’ motion to

dismiss, sending this case back to the district court for

2

further proceedings, including fact development. Any

subsequent judgment can be challenged in this Court,

on a full record, with proper fact development and application of the most recent relevant law. There is

therefore no need to hold or grant this Petition, vacate

the judgment below, and remand to the Tenth Circuit

in light of Skrmetti. What is more, the Tenth Circuit’s

decision ultimately relied on a rational basis analysis;

it did not rest on the heightened scrutiny this Court

is considering in Skrmetti. Because the Tenth Circuit’s decision stands on grounds independent of

Skrmetti, there is no reason to remand in light of

Skrmetti.

The Tenth Circuit’s conclusion that Respondents

plausibly alleged an equal protection claim under rational basis review was well founded. In arguing to

the contrary, Petitioners attack an imaginary opinion. They rail against a decision that supposedly renders any government reference to sex irrational. The

decision below does no such thing. Rather, it faithfully

applies this Court’s precedents to recognize the plausibility of a challenge to a policy that targets

transgender people and strips them—and them

alone—of their ability to rely upon a foundational

identity document.

The Petition should be denied.

3

STATEMENT OF THE CASE

Gender identity is a person’s core internal sense

of their own gender. 1 For most people, their sex assigned at birth accords with their gender identity.

Pet. App. 5a. For transgender people, however, their

sex assigned at birth conflicts with their gender identity, and that conflict can cause gender dysphoria. Id.

Treatment for gender dysphoria includes living in a

manner consistent with gender identity, or “transition[ing].” Id. An essential part of transitioning is

amending the name and sex designation on identity

documents, like drivers’ licenses, passports, and birth

certificates. Pet. App. 6a.

Birth certificates are not just historical records.

They are current identity documents, used for a variety of purposes, like enrolling in school, applying for

jobs, obtaining professional licenses, and securing

other documents, like voter identifications, tribal

membership cards, and social security cards. Pet.

App. 6a.

Depriving transgender individuals of identity documents that match their gender identity imperils

their ability to participate fully, equally, and safely in

public life. When the sex listed on an identity document does not align with a person’s gender presentation, the mismatch reveals an individual’s

transgender status. That is information individuals

1 Because this case comes up on a motion to dismiss, we rely

on the allegations in the complaint and the Tenth Circuit’s factual recitation, which likewise takes as true the complaint’s wellpleaded allegations. Pet. App. 4a.

4

may wish to keep private, especially when applying

for jobs or interacting with the government, or even

just going about their daily lives.

Transgender people have good reason to be cautious: One national survey revealed that nearly one

third of respondents who had shown an identity document with a name or gender that did not match their

gender presentation were verbally harassed, denied

benefits or services, or assaulted. Pet. App. 140a (complaint); Pet. App. 13a.

For 14 Years, Transgender Oklahomans Could

Obtain Amended Birth Certificates Consistent

With Their Gender Identity

Oklahoma has long permitted people to amend

their birth certificates for a variety of reasons—including to change information that was correct at the

time of birth. For instance, if a person changes their

name, that person can amend their birth certificate to

reflect their new name. Okla. Stat. tit. 63, § 1-321(C).

Similarly, Oklahoma issues revised birth certificates

to reflect the names of adoptive parents, even though

the original birth certificates correctly listed the

child’s biological parents. Id. § 1-316.

By 2007 (if not earlier), the Oklahoma State Department of Health (OSDH) also allowed transgender

people to amend the sex designation on their birth

certificates. Pet. App. 6a-7a. As in the case of other

amendments, OSDH retained copies of the original

birth certificates. Pet. App. 45a.

5

For at least 14 years, transgender Oklahomans

sought and received amended birth certificates without issue. Pet. App. 142a (complaint). Nationally during this period, 47 states, the District of Columbia,

and Puerto Rico likewise allowed transgender people

to amend the sex designation on their birth certificates, while the federal government permitted the

same change on passports. Pet. App. 9a.

Oklahoma’s Abruptly Changes Its Policy On

Amending Birth Certificates

In 2021, Oklahoma’s Governor Stitt abruptly

changed course—but not because of any problems

that had emerged from its longstanding practice, as

there had been none. Rather, he did so after learning

that OSDH had agreed, as part of a settlement, to issue an amended birth certificate to a plaintiff, whose

gender identity did not match their sex assigned at

birth, with a gender-neutral designation. Pet. App.

7a-8a. Governor Stitt released a statement explaining

his reasoning. He said, “I believe that people are created by God to be male or female. Period.” Pet. App.

7a. “There is no such thing as non-binary sex,” he continued, “and I wholeheartedly condemn the OSDH

court settlement that was entered into by rogue activists who acted without receiving proper approval or

oversight.” And he vowed: “I will be taking whatever

action necessary to protect Oklahoma values.” Pet.

App. 70a.

The very next day, the commissioner of OSDH resigned. Pet. App. 70a. Soon after, Governor Stitt issued an executive order prohibiting OSDH from

6

amending birth certificates to “in any way alter a person’s sex or gender on a birth certificate,” such as

changing a male designation to a female designation

for a transgender woman. Pet. App. 8a. 2

Oklahoma continues to permit other amendments

to birth certificates that reflect post-birth changes, for

instance, to legal name and related to adoption. Pet.

App. 68a.

Respondents Challenge The Birth Certificate

Policy

Respondents are transgender people born in Oklahoma who want the same thing every other Oklahoman is afforded: birth certificates they can use for

identification. Pet. App. 6a. For Respondents, that requires amending the sex designation on their birth

certificates so that it is consistent with their gender

identity, and they can thus be accurately identified as

A law passed several months later provides that sex

designations on birth certificates “shall be either male or female

and shall not be nonbinary or any symbol representing a

nonbinary designation including but not limited to the letter ‘X.’”

Okla. Stat. tit. 63, § 1-321(H). Because designating a

transgender man as “male” and a transgender woman as

“female”—which is what Respondents want their certificates to

say—does not involve any “nonbinary” designation, it is the

Governor’s directive, and not the law, that bars the amendment

Respondents seek and is the subject of this suit. See Pet. App.

149a, 154a, 158a (OSDH denied Respondents’ requests based on

executive order); contra Pet. 27. Legislation that would have

expanded that law’s prohibition to include the male and female

designations at issue here was proposed but failed to pass. H.B.

3219, 59th Leg., Reg. Sess. (Okla. 2024).

2

7

the holders of the certificates. Each Respondent received state court orders permitting the amendment,

Pet. App. 9a-13a, but now cannot obtain the amendment.

Respondents have all personally experienced hassle, harassment, and humiliation when presenting

identity documents discordant with their gender identity. See Pet. App. 9a-13a. When Ms. Fowler, for instance, presented identification in the past outing her

as a transgender woman, she was openly denied service by a business on one occasion and attacked with

a derogatory slur on another, causing her to fear for

her safety whenever leaving her home for months afterward. Pet. App. 151a-152a. When Mr. Hall and Mr.

Ray were unable to present identity documents consistent with their gender identity, they encountered

problems in interacting with financial institutions

and updating other forms of identification. Strangers

also interrogated their identity. Pet. App. 155a-160a.

Each of these experiences chipped away at Respondents’ dignity, privacy, security, and, indeed, their

basic sense of belonging in the community.

Respondents sued under 42 U.S.C § 1983. As relevant here, they claimed that Oklahoma’s policy prohibiting transgender Oklahomans from amending

their birth certificates violates the Equal Protection

Clause. Respondents did not challenge Oklahoma’s

practice of recording sex assigned at birth on original

birth certificates and retaining those original certificates after amendment. Pet. App. 28a, 45a.

8

At Petitioners’ request, the district court stayed

all discovery and granted Petitioners’ motion to dismiss. Pet. App. 76a, 126a. At the threshold, the court

held that government discrimination against

transgender people triggers only rational basis review, reasoning that such discrimination is not sexbased and that classifications based on transgender

status are not suspect or quasi-suspect. Pet. App.

116a-117a, 120a. And the court found Respondents

could not state a plausible claim under rational basis

review because the policy furthers the government’s

asserted interests in promoting the accuracy of its records and “protecting” cisgender women from, for instance, transgender women participating in sports.

Pet. App. 122a-124a.

The Tenth Circuit Reverses The Dismissal Of

Respondents’ Equal Protection Claim

Like the district court, the Tenth Circuit ultimately applied rational basis review. But the Tenth

Circuit disagreed with the district court’s conclusion

that Respondents failed to plausibly allege an equal

protection violation and reversed the dismissal of Respondents’ equal protection claim.

Over Petitioners’ protestations of neutrality, the

Tenth Circuit first held that the birth certificate policy purposefully discriminates against transgender

people under the “totality of the relevant facts” test of

Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252, 267 (1977). Pet.

App. 26a. Key to the court’s conclusion were the

“events leading up to the Policy’s adoption,” Pet. App.

9

28a, including the State’s history of allowing amendments, Governor Stitt’s public explanation of the

change, and his directive to bar amendments. See Arlington Heights, 429 U.S. at 267 (holding that departures from normal processes can indicate “improper

purposes are playing a role” including when a practice

“suddenly was changed”). This, together with the policy’s obvious impact on transgender people, satisfied

the Tenth Circuit that the policy intentionally discriminates against transgender people. Pet. App. 29a.

The Tenth Circuit next concluded that the birth

certificate policy triggers heightened scrutiny because

discrimination against transgender people is sex discrimination per Bostock v. Clayton County, 590 U.S.

644 (2020). Pet. App. 32a-33a. The Tenth Circuit “decline[d] to decide” if the policy separately triggers

heightened scrutiny because discrimination against

transgender people constitutes a quasi-suspect classification. Pet. App. 43a.

Ultimately, however, the Tenth Circuit held that

it is plausible that the birth certificate policy fails

even rational basis review. Pet. App. 43a. The court

assumed the legitimacy of the proffered and possible

state interests—“protecting the integrity and accuracy of vital records,” “protecting ‘the interests of

women’” in athletics, “preventing fraud,” and “conserving resources,” Pet. App. 44a, 47a. But the court

found that Respondents had plausibly alleged that

the policy does not rationally further those interests.

The ill-fit was best illustrated by the fact that Oklahoma retains original birth certificates. Just as it had

the ability to do for the 14 years preceding the policy

(if not longer), Oklahoma can serve its interests by

10

referencing the original certificates. And providing

Respondents with copies of amended certificates that

they can use in no way impedes those interests.

Petitioners’ petition for rehearing en banc was denied without a vote or noted dissent.

The case is now proceeding in the trial court,

where Respondents are attempting to take discovery.

REASONS TO DENY CERTIORARI

This Court should deny certiorari for at least

three reasons: (1) the shallow nature of the split over

this issue, which Skrmetti could affect in other, future

cases, calls for further percolation; (2) the preliminary

posture renders this case a poor vehicle for either plenary review or a hold and GVR in light of Skrmetti;

and (3) the decision below is correct.

I.

Any Split Is Shallow At Best And Would

Benefit From Further Percolation.

A. Petitioners and their amici urge the Court to

grant review to resolve a division in authority. But the

circuit conflict Petitioners assert is shallow and recent: By Petitioners’ own count, only two courts of appeals have weighed in on the constitutionality of

birth-certificate amendment bans, and both did so

just in the past year. Pet. 14-15.

The Court should wait for more courts to weigh

in. And they will: Multiple jurisdictions have recently

banned amendments to sex designations on identity

documents. Compare Pet. App. 9a (observing that

only three States bar changes to sex designations on

11

birth certificates), with Gore v. Lee, 107 F.4th 548, 553

(6th Cir. 2024) (observing more recently that six

States bar such amendments). 3 That includes the federal government, which has recently rescinded its policy permitting transgender people to change the sex

listed on their passports. 4 That policy is currently being challenged, including on First Amendment and

substantive due process grounds that are not raised

in the Petition here. See Class Action Complaint, Orr

v. Trump, No. 1:25-cv-10313 (D. Mass Feb. 7, 2025).

That, and other challenges, will provide the Court

with the “guidance” from “[o]ther circuits” and the

“adversarial testing on which [it] usually depend[s].”

Maslenjak v. United States, 582 U.S. 335, 354 (2017)

(Gorsuch, J., concurring in part).

B. Further ventilation of the issue will surface the

full range of considerations—both factual and legal—

that bear on this constitutional question. It is generally “desirable to have different aspects of an issue

further illumin[ated] by the lower courts,” Maryland

v. Baltimore Radio Show, 338 U.S. 912, 918 (1950),

and that is particularly true here.

Just compare the Tenth and Sixth Circuit decisions. The Tenth Circuit relied in part on circumstances not present in the Sixth Circuit case,

3 For up-to-date information, see Equality Maps: Identity

Document Laws and Policies, Movement Advancement Project,

https://tinyurl.com/2ew2x3ub (last visited Apr. 9, 2025) (listing

eight States with bans).

4 Jaclyn Diaz, Trump’s Passport Policy Leaves Trans, InterSex Americans in the Lurch, NPR (Feb. 21, 2025), https://tinyurl.com/n8y4x2b7.

12

including Oklahoma’s abrupt change to its longstanding amendment-permissive policy, statements by the

Governor targeting transgender individuals, and the

fact that transgender people could obtain drivers’ licenses with sex designations consistent with their

gender identity. Compare Pet. App. 28a-30a, 45a-46a,

with Gore, 107 F.4th at 560; id. at 568 n.2 (White, J.,

dissenting). And unique features of Oklahoma law

further attenuate the rational connection Oklahoma

seeks to draw to its interests. Infra 21-24 (discussing,

e.g., access to original records in Oklahoma; Oklahoma’s treatment of drivers’ licenses). Different fact

patterns and additional analysis might illuminate important aspects of the constitutional question that

would aid this Court in any future review.

What is more, the briefs in this Court show that

States and their supporters are still working out their

justifications for restrictive amendment policies.

Compare Pet. 16-19 (offering five rationales), with

Pet. App. 44a (observing that Petitioners offered only

two rationales); see Alliance Defending Freedom

(ADF) Br. 18-26 (raising rationales related to medicine, military, and education not raised below). 5

C. It is especially imprudent to grant review at

this time because the Court’s forthcoming decision in

Skrmetti may affect how other courts evaluate restrictions on amending identity documents, including

birth certificates. Skrmetti is poised to address

whether and when policies that discriminate against

transgender people trigger heightened scrutiny. The

5 This, and other citations to the views of amici, refer to the

briefs filed in support of the Petition.

13

Tenth Circuit did not find that the level of scrutiny

was decisive under the specific circumstances present

here: It held that Respondents made out a claim even

under rational basis review. Skrmetti is thus unlikely

to have any effect on the Tenth Circuit’s rational basis

holding here. But in other jurisdictions evaluating

similar questions on different sets of facts, the level of

scrutiny might matter.

There is no good reason to preempt this percolation. Petitioners have not identified any injury they

would suffer from denying review at this time. There

is, for instance, no injunction in place requiring Petitioners to issue amended birth certificates. See Mount

Soledad Mem’l Ass’n v. Trunk, 567 U.S. 944, 945

(2012) (Alito, J., concurring) (respecting the denial of

certiorari where “no final judgment has been rendered and it remains unclear precisely what action

the Federal Government will be required to take”).

Nor do the two diverging decisions create any confusion for those subject to the law. The decisions apply

to the policies of distinct jurisdictions, with one allowed to stand and the other still under review.

II. The Preliminary Posture Renders This Case

A Poor Vehicle For Plenary Review Or A

GVR.

The Petition should be denied for the additional

reason that the judgment below is only preliminary.

That makes it a poor candidate for both plenary review and a hold and GVR.

As to plenary review, the interlocutory posture

“alone furnishe[s] sufficient ground for the denial” of

14

a petition for a writ of certiorari. Hamilton-Brown

Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 258 (1916);

see Brotherhood of Locomotive Firemen v. Bangor &

Aroostock R.R. Co., 389 U.S. 327, 328 (1967) (“because

the Court of Appeals remanded the case, it is not yet

ripe for review by this Court”); Virginia Military Inst.

v. United States, 508 U.S. 946, 946 (1993) (Scalia, J.,

respecting the denial of the petition for a writ of certiorari). The Tenth Circuit reversed the grant of Petitioners’ motion to dismiss and remanded the case “for

further proceedings consistent with [its] decision.”

Pet. App. 55a. Those further proceedings will include

fact development. Supra 10. If this Court is inclined

to weigh in, it should wait for a final decision with a

complete record.

The case’s preliminary posture also obviates the

need to hold this case and ultimately grant, vacate,

and remand in light of Skrmetti. As mentioned, the

Tenth Circuit did not enter final judgment for Respondents or bar Petitioners from enforcing the policy, not even on a preliminary basis. Rather, the

Tenth Circuit remanded for further proceedings,

which are ongoing. The lower courts, then, will have

the opportunity to determine what effect, if any, this

Court’s decision in Skrmetti has on Respondents’

equal protection claim, this time on a complete record.

And later, this Court will have the chance to consider

reviewing that (or any other) determination, again, on

a complete factual record.

It would be especially ill-advised to grant and vacate the Tenth Circuit’s current judgment because it

does not turn on the principal question in Skrmetti—

what level of scrutiny applies to Tennessee’s ban on

15

gender affirming care for minors. The Skrmetti parties are divided as to whether the ban in that case

triggers heightened scrutiny, and on what basis—because it facially classifies on the basis of sex, because

discrimination against transgender individuals is sex

discrimination per Bostock, or because transgender

status is a quasi-suspect classification. Although the

Tenth Circuit agreed that the policy in this case warrants heightened scrutiny for the second of these reasons, the outcome did not turn on that conclusion.

Rather, the court held that, on the record and arguments before it, the policy plausibly fails even rational

basis review, and rightly so. See infra III.

What is more, on the antecedent question—

whether the birth certificate policy discriminates

against transgender individuals in the first place—

the Tenth Circuit relied on a legal framework, Arlington Heights, that was not litigated in Skrmetti. See

Transcript of Oral Argument at 138, Skrmetti, No. 23477 (U.S. Dec. 4, 2024); see infra III.A (discussing the

Arlington Heights holding).

In short, while it makes good sense to let the issue

of the constitutionality of birth certificate amendment

bans percolate in light of Skrmetti, there is no reason

to hold and GVR this case in light of Skrmetti.

III. The Decision Below Follows This Court’s

Precedents And Is Correct.

Apart from all the above, the Court should deny

the Petition because the Tenth Circuit’s decision is

correct. In arguing to the contrary, Petitioners attack

16

the integrity and competence of the Tenth Circuit, accusing the court of being “incapable of thinking rationally on this topic” and unwilling to “[]ever let

stand a rational and non-discriminatory birth certificate policy like Oklahoma’s.” Pet. 24-25. In truth, the

Tenth Circuit’s decision faithfully follows this Court’s

precedents and is limited in its impact.

A. The Tenth Circuit was right that

Oklahoma’s policy discriminates against

transgender people.

1. Petitioners’ first misguided attack accuses the

Tenth Circuit of finding discrimination where there is

purportedly none. According to Petitioners, Oklahoma’s policy affects “everyone”— “everyone has a

sex” that is “recorded,” after all—and so the policy

does not discriminate against “anyone.” Pet. 25-26;

see ADF Br. 13 (similar).

The Tenth Circuit correctly applied well-settled

precedent in rejecting Petitioners’ protestation of neutrality. As the Tenth Circuit recognized, even if the

policy could be viewed as “facially neutral,” it can still

constitute “purposeful discrimination.” Pet. App. 22a

(citing Washington v. Davis, 426 U.S. 229, 242

(1976)); contra Pet. 25 (arguing that “[t]he inquiry

should have ended” with the Tenth Circuit’s admission that the policy “appears facially neutral”). “Determining whether invidious discriminatory purpose

was a motivating factor demands a sensitive inquiry

into such circumstantial and direct evidence of intent

as may be available.” Arlington Heights, 429 U.S. at

266. That “sensitive inquiry” is just what the Tenth

Circuit performed when it assessed disparate impact,

17

the “historical background” of the policy, and the “sequence of events leading up to” it. Pet. App. 26a (quoting Arlington Heights, 429 U.S. at 267).

Petitioners have no grounds to attack the Tenth

Circuit’s fact-bound analysis on this front.

Petitioners insist, for example, that the policy

does not “disparately impact” transgender individuals. Pet. 26. But not even the Sixth Circuit in Gore

went that far. After all, who else does the policy injure? Indeed, the policy deprives only transgender

people, not cisgender people, of a birth certificate consistent with their gender identity that they can use to

navigate through life. Pet. App. 26a.

Petitioners and their amici also misunderstand

the Tenth Circuit’s review of the sequence of events

leading to the anti-amendment policy. Petitioners accuse the court of “antipathy for religion,” Pet. 28, because it cited Governor Stitt’s public explanation for

reversing course and refusing to allow transgender

people to amend their birth certificates, which included his belief that “people are created by God to be

male or female. Period,” Pet. App. 28a-29a. But the

Tenth Circuit did not need to find—and did not find—

that Governor Stitt’s statements themselves proved

the existence of “bigotry” or “animus.” Contra DeSantis Br. 8-9. The “intent to discriminate” required for

an equal protection claim is merely the “intent to treat

differently”—not “animus, hatred, or bigotry.” Pet.

App. 23a (internal quotations omitted). Nor did it

matter that the statements had anything to do with

religion—a point the Tenth Circuit emphasized. Pet.

18

App. 29a (stressing that Respondents “are not challenging the Governor’s right to express his [religious]

beliefs”); contra DeSantis Br. 5-8; Pet. 28. Rather, the

statements were one factor, along with the other Arlington Heights factors, that illustrate “that the Policy

was implemented ‘at least in part because of’ the effect it would have on transgender people.” Pet. App.

29a (quoting Pers. Adm’r of Mass. v. Feeney, 442 U.S.

256, 279 (1979)). That is, the statements simply “show

the intent of the Policy is to target transgender people.” Id. The Tenth Circuit only needed to make that

otherwise obvious point clear because Petitioners denied it. 6

What is more, the Tenth Circuit’s conclusion that

the policy discriminates can stand on the alternative

ground—briefed below, but not decided by the Tenth

Circuit—that the policy facially discriminates on the

basis of transgender status and sex. Pet. App. 23a26a, 31a n.12.

2. After failing to refute the existence of discrimination against transgender people, Petitioners move

on to arguing that such discrimination does not trigger heightened scrutiny. First, Petitioners challenge

the Tenth Circuit’s alternative holding that the policy

6 Petitioners oddly insist that the Governor’s statements do

not evince disfavor with transgender people changing their sex

designations, only with non-binary people changing to a genderneutral designation. Pet. 27-28. But even Petitioners’ amici recognize that Governor Stitt expressed a view that sex is “immutable,” which “[o]bviously” “‘demonstrates disfavor with people

amending their birth certificates to change the sex designation.’”

DeSantis Br. 2, 5 (quoting Pet. App. 29a).

19

is subject to heightened scrutiny because discrimination against transgender individuals is discrimination on the basis of sex. Pet. 32-38. Petitioners also

dispute the point—not passed on by the Tenth Circuit

below—that transgender status is a quasi-suspect

classification. Pet. 29-31. Petitioners are wrong about

both, but there is no need to belabor the points, for

they are not outcome determinative in this case and

were ably briefed by the Petitioners in Skrmetti,

which already presents a vehicle for resolving these

questions. See also Respondents’ Tenth Cir. Opening

Br. 17-30.

B. The Tenth Circuit was right that

Oklahoma’s policy plausibly fails even

rational basis review.

In finding that Respondents plausibly alleged in

their complaint that Oklahoma’s policy fails rational

basis review, the Tenth Circuit correctly articulated

and applied the law in accordance with this Court’s

precedents.

1. As to the legal standard, the Tenth Circuit adhered to the “bedrock rational basis principles” that

Petitioners accuse the court of “blatantly contraven[ing].” Pet. 20.

For starters, the court recognized that, as the

challengers to the policy, Respondents “have the burden to negative every conceivable basis which might

support it.” Pet. App. 43a (quoting FCC v. Beach

Commc’ns, Inc., 508 U.S. 307, 315 (1993)); contra Pet.

19 (claiming the Tenth Circuit did not mention that

laws are presumed valid under rational basis review).

20

And it reiterated that “conceived reason” need not be

“the actual motivation” behind the state action. Pet.

App. 44a (citing Beach Commc’ns, 508 U.S. at 315).

The court likewise acknowledged its limited role: “the

proposed justification [for the state action] ‘is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or

empirical data.’” Pet. App. 43a (quoting Beach

Commc’ns, 508 U.S. at 315).

If anyone “misunderstands rational basis review,”

it is Petitioners. Pet. 15 (quoting Gore, 107 F.4th at

561). Relying on Gore, they fault the Tenth Circuit

here for supposedly failing to recognize that rational

basis review “requires only that ‘some plausible reason’ supports the classification, no matter how imprudent or ineffective.” Gore, 107 F.4th at 561 (citation

omitted); see Pet. 22 (quoting this language). But the

Sixth Circuit forgets that the government must not

only have a “plausible policy reason for the classification”; the classification must also “rationally further[]” that interest. Nordlinger v. Hahn, 505 U.S. 1,

11 (1992). When a policy is utterly ineffective, “the relationship [between] the classification [and] its goal is

… so attenuated as to render the distinction arbitrary

or irrational.” Id.

2. As to the application of that law to the facts

here, the Tenth Circuit again made no error. The

Tenth Circuit did not hold that the asserted state interests are irrational or illegitimate. Contra States’

Br. 1, 9. To the contrary, the Tenth Circuit expressly

assumed all the state interests are “legitimate” ones.

Pet. App. 45a-46a. The problem is that Oklahoma’s

policy does not rationally further its interests. See

21

Pet. App. 45a-48a; see also Pet. App. 30a (“[T]he Policy

is wholly disconnected from Defendants’ proffered justifications.”). Here, too, the Tenth Circuit was correct.

Start with Petitioners’ interest in accurately recording facts reported at birth. That is not “rationally

related to the Policy” for at least one simple reason:

Oklahoma “retains and has access to the original

birth certificate[] … regardless of whether the Policy

exists.” Pet. App. 45a. Contrary to Petitioners’ and

amici’s contention, government officials and others

can access the originals for a variety of purposes; indeed, even the public can verify a person’s sex assigned at birth. See Okla. Stat. tit. 63, § 1-323(A)-(C). 7

And Petitioners’ insistence that Oklahoma’s policy

furthers accuracy flies in the face of its own acknowledgment that Oklahoma allows amendments to other

facts accurately recorded at birth, like name and biological parents. Pet. 23.

Tellingly, Oklahoma’s Petition does not claim that

its policy rationally furthers an interest in accurate

identification. Nor could it: Requiring a transgender

woman like Ms. Fowler to present an identity document marked “male” does not rationally further her

7 Petitioners incorrectly assert that amended birth certificates cannot be “‘subject to inspection except upon order of a

court of competent jurisdiction or as otherwise specifically provided by law.’” Pet. 20-21. That language comes from a provision

that concerns “new” birth certificates issued, for instance, in connection with adoptions. Okla. Stat. tit. 63, § 1-316. A separate

provision addresses “[a]mend[ed]” birth certificates, which are at

issue here. Id. § 1-321.

22

ability to be accurately identified as the individual reflected on that document.

Petitioners respond by saying it does not matter

if Oklahoma was actually motivated by an interest in

accuracy, yet also insisting that it was. Pet. 20. That

is a non-sequitur—the question is the fit, not the

origin of the interest. And the existence of the originals shows the fit fails.

Petitioners’ contention (at Pet. 21) that even

amended certificates are government speech is likewise no defense. Government cannot shield its conduct—whether denying the amendment here or

denying a benefit somewhere else—simply on the

ground that the government claims to be advancing a

message by engaging in that conduct. Were it otherwise, government could discriminate with impunity.

As to fraud prevention (Pet. 18), the Tenth Circuit

rightly observed (Pet. App. 47a) that Petitioners

failed to provide any explanation of how the policy

even conceivably addresses fraud—a defect they

make no effort to cure even now. Nor can they, for retention of, and access to, original certificates proves

that the policy does not rationally further the State’s

interest in preventing fraud or errors in eligibility for

benefits. See Pet. App. 47a; Okla. Stat. tit. 63, § 1323(C)(4) (permitting electronic verification of birth

certificates “for fraud protection”); id. § 1-323(C)(1)

(same, for “[a] government agency in [the] conduct of

its official business”).

Likewise, the Tenth Circuit correctly recognized

that Petitioners’ interest in protecting women has no

23

connection to the policy. As to sex-separate athletics

in public schools, “[b]irth certificates … are irrelevant

to ensuring only students assigned female at birth

compete on athletic teams designated for women or

girls.” Pet. App. 47a. After all, Petitioners concede

that, by statute, Oklahoma relies on affidavits—not

birth certificates—for this purpose. Pet. 23; Pet. App.

46a-47a; Okla. Stat. tit. 70, § 27-106(D). And even if

Oklahoma wanted to use birth certificates, it could—

regardless of the policy—because, again, it maintains

the original birth certificates. Pet. App. 47a; Pet. 23.

This, too, dooms Petitioners’ “bodily privacy” and

school restrooms argument. Pet. 17. Oklahoma law

specifically looks to the sex “identified on the individual’s original birth certificate”—not an amended certificate—for access to sex-separated facilities in

public schools. Okla. Stat. tit. 70, § 1-125(A)(1) (emphasis added).

Next, Petitioners try and fail to defend their policy on the ground that it furthers the State’s interest

in “maintaining a consistent, historical, and biologically based definition of sex.” Pet. 17. For one thing,

Oklahoma has not consistently maintained a historical or “biologically based definition of sex”—it has previously allowed transgender people to amend the sex

on their birth certificates and has allowed Respondents to amend their drivers’ licenses. For another,

mere adherence to a historical practice cannot justify

a discriminatory law like this one. See Williams v. Illinois, 399 U.S. 235, 239 (1970) (“[N]either the antiquity of a practice nor the fact of steadfast legislative

and judicial adherence to it through the centuries insulates it from constitutional attack”). In other words,

24

the practice has to be rational in its own right—it cannot stand just because it is old, broadly used, or

simply preferred.

And Petitioners are still unable to offer any explanation—not even “rational speculation,” Pet. App. 48a

(quoting Beach Commc’ns, 508 U.S. at 315)—as to

how its policy conserves resources. They do not even

try, see Pet. 18-19, likely because that explanation

would flounder on the fact that Petitioners permit a

whole host of other amendments. Supra 4, 6. “[A] concern for the preservation of resources standing alone

can hardly justify the classification used in allocating

those resources.” Plyler v. Doe, 457 U.S. 202, 227

(1982). That is particularly true here where Respondents paid the requisite fee to amend their birth certificates just like other Oklahomans seeking to amend

their birth certificates. Pet. App. 10a-12a.

Finally, and tellingly, Petitioners and their amici

fail to grapple with the factual allegation that, for

over a decade, Oklahoma—like nearly every other

State—permitted transgender people to amend their

birth certificates without giving rise to any of the

problems the policy supposedly solves.

C. Petitioners and their amici greatly

exaggerate the implications of the

decision below.

Petitioners and their amici grossly overstate the

implications of the Tenth Circuit’s limited fact-bound

rational basis ruling. According to them, “the Tenth

Circuit makes … clear [that] every recognition of biological sex will eventually fall.” Pet. 37; see also Pet.

25

19 (“The Tenth Circuit’s [decision] … exposes a

broader view that any reference to biological sex is irrational.”); ADF Br. 13 (similar).

The Tenth Circuit, of course, did no such thing. In

fact, the court expressly reaffirmed that “such [biological] differences exist and that they may be relevant

to whether state action passes judicial scrutiny” in an

appropriate case. Pet. App. 41a. And the court cited a

case, Tuan Anh Nguyen v. INS, 533 U.S. 53, 60, 64

(2001), in which this Court upheld a sex classification

that was justified in part by biological differences related to sex. Pet. App. 41a; contra Pet. 19 (accusing

the Tenth Circuit of being “at odds” with Nguyen).

The Tenth Circuit’s reasoning confirms the limited nature of its ruling. The only question before the

court was whether Respondents plausibly alleged

that it is irrational for Oklahoma to bar transgender

individuals from amending the sex designation on

their birth certificates. No one—not Respondents and

certainly not the Tenth Circuit—argued that it is irrational to record on an original certificate the sex assigned at birth. See, e.g., Pet. App. 28a

(“[Respondents] acknowledge Oklahoma’s right to

maintain the original birth certificate accurately recording the sex designation made at birth”); Pet. App.

45a (similar); contra ADF Br. 18 (wrongly asserting

that “[t]he court declared that Oklahoma failed to provide any rational basis for designating sex on a person’s birth certificate”); Pet. 19 (claiming the panel

“left open the door” to invalidating “that practice”

(emphasis omitted)). Quite the opposite. The Tenth

Circuit reasoned that it is precisely because Oklahoma does (and may) make and retain such a record

26

that the government’s various interests are not

served by a policy barring amendment: If the government needs to confirm a person’s sex assigned at

birth, it can consult the original. See Pet. App. 45a47a.

The Tenth Circuit’s restraint in declining to hold

that the amendment policy facially discriminates on

the basis of sex, Pet. App. 31a n.12, is further proof

that its opinion lacks the grand ambition Petitioners

attribute to it.

CONCLUSION

The Court should deny the Petition for a Writ of

Certiorari.

Respectfully submitted,

Peter C. Renn

LAMBDA LEGAL DEFENSE

AND EDUCATION FUND,

INC.

800 S. Figueroa St.

Suite 1260

Los Angeles, CA 90017

Karen Keith Wilkins

1515 S. Denver Ave.

Tulsa, OK 74119

Sasha Buchert

LAMBDA LEGAL DEFENSE

AND EDUCATION FUND,

INC.

E. Joshua Rosenkranz

Counsel of Record

Rachel G. Shalev

ORRICK, HERRINGTON

& SUTCLIFFE LLP

51 West 52nd Street

New York, NY 10019

jrosenkranz@orrick.com

Nicole Ries Fox

Emily Minton Mattson

ORRICK, HERRINGTON

& SUTCLIFFE LLP

355 S. Grand Avenue

27

1776 K Street NW, Suite

722

Washington, DC 20006

Suite 2700

Los Angeles, CA 90071

Shelly L. Skeen

Nicholas Hite *

LAMBDA LEGAL

DEFENSE AND

EDUCATION FUND,

INC.

3500 Oak Lawn

Avenue, Suite 500

Dallas, Texas 75219

April 11, 2025

* Practice currently limited to Louisiana only, as well as federal courts where admitted. Not currently licensed in Texas; supervised by Texas-admitted attorneys while awaiting admission

to the Texas Bar.