Commentary

Forty-five years ago, two red states said “yes” on transgender rights

Asheville, NC - April 2, 2016: An activist holds a sign at a HB2 protest rally.
Asheville, NC - April 2, 2016: An activist holds a sign at a HB2 protest rally.Photo: Shutterstock

On March 12, 1975, the Utah Senate gave its approval to a trans birth certificate bill.  That approval came only four days after the state house had approved the same bill.

Not one legislator in either chamber voted against it.  Yes, there were some in the “absent/not voting” column for each vote, but 71 House members said yes and 25 Senators did.

Related: 20 years ago, this legal case set the stage for the Supreme Court’s upcoming ruling on trans rights

That’s kind of a big deal.

And it still is – in part because of a case still sitting in front of Utah’s Supreme Court two years after arguments were heard.  “Some biological facts are not subject to voluntary modification,” Weber County District Judge Noel Hyde told a trans man seeking a birth certificate correction.

That ruling clearly disregarded the fact that, even if one philosophically adheres to the non-neutral “biological facts” rubric, his state’s legislature came to a different conclusion during the Ford administration.

And there was nothing stealth about it. “Providing for Amended Birth Certificates for Persons with Name or Sex Changes” appears plainly in the bill title.

As for the Supreme Court’s lack of willingness to issue a decision?  Perhaps it got tired or perhaps it just got lazy.

Or perhaps the court has been spending time crafting a transphobic decision so subtle that they can point to it and cheekily ask, “Where’s the transphobia?” The oral arguments leave one with the queasy feeling that the court is searching for a way to do away with the law on technical grounds.

If that comes to pass, it wouldn’t be the first time a trans birth certificate statute enacted in 1975 was put to deceptive use to take away trans rights.

North Carolina’s General Assembly passed an even-more-specific positive trans birth certificate bill in 1975 and did so even quicker than Utah.

At the behest of Duke University’s gender identity program, the state’s Vital Records Branch drafted legislation to aid North Carolina-born program participants who were having difficulty conforming their birth certificates to reflect post-transition reality.

“I personally think this is an appropriate and enlightened step to take,” Duke’s Chief of Urology Dr. James F. Glenn wrote to state Sen. Kenneth Royall, Jr. (D) on May 9th.

Royall formally introduced S.B. 873 two weeks later.  Two weeks after that it was law.  Forty of the 50 senators voted yes; none voted no.  The state house approved the bill on a voice vote.

Moderate Republican James Holshouser held the governorship, but North Carolina’s governors then had no say the legislative process.  Consequently, S.B. 873 had become law when both Democratic-controlled chambers approved it.

And that bill’s title?

An Act to Amend G.S. 130-60 to Authorize Issuance of a New Birth Certificate After Sex Reassignment Surgery.”

No deception.

That would come 41 years later.

For it was about this time four years ago that a special session of the General Assembly with a very different composition brought forth H.B. 2 fully formed on a single day.  The existence of the 1975 law was held up by the Republican super-majority as “proof” that no one who was involved with H.B. 2 had any animosity toward trans people.  (Of course, do recall that H.B. 2 wasn’t merely anti-trans; it carpet-bombed the right of North Carolina’s citizens to decide for themselves at the local level whether to truly protect workers on a number of fronts.)

More deception came with a purported repeal of H.B. 2 which ultimately solved nothing.

Yet through all of that – as well as the years when anti-marriage legislation and amendments were the conservative cause célèbre – neither the North Carolina nor the Utah trans birth certificate statute ever fell victim to repeal.

Every form of legislative refuge has its price, though.  Neither has ever been modernized either.  It’s a safe bet that North Carolina’s never will be.  What eventually happens in Utah may depend on the outcome of the ongoing court case – as might how other states who like to pretend they have no trans-positive legislation thereafter handle the trans birth certificate statutes they actually do have.

That could prove to be as big of a deal as the U.S. Supreme Court’s Title VII decisions – but it might take more than a few days to find out.

 

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