By Howard Fischer
Capitol Media Services
PHOENIX -- Top Republican lawmakers want to appeal a federal court ruling that voided a state law which says transgender individuals can get an amended birth certificate only if they first undergo surgery.
In new court filings, the lawyer for House Speaker Steve Montenegro and Senate President Warren Petersen contend that U.S. District Court Judge James Soto got it wrong in voiding the surgery requirement. Justin Smith called it "a dramatic departure'' from a law that has been on the books for five decades.
But it's not just that they're unhappy with the ruling. Smith said that Attorney General Kris Mayes who was defending the law, has not been as vigorous in doing that as the GOP lawmakers believe she should have been.
And now they're questioning whether she even intends to appeal.
What makes the question of appeal important -- and imminent -- is that Soto directed the health department to begin issuing amended birth certificates as early as January to those who do not identify with the sex assigned at birth.
More to the point, the judge's order, unless overturned, strips the the requirement in Arizona law that the person must first have to have "undergone a sex change operation.'' Instead, it would require only a physician's attestation that the person is transgender.
An aide to Mayes said her office is consulting with the Department of Health Services -- the entity that was sued because it issues birth certificates -- on any appeal. And an agency spokesman said it does not comment on pending litigation.
But an appeal is not guaranteed. In fact, Christian Slater, press aide to Gov. Katie Hobbs, who has ultimate decision-making authority for the health department, said no decision has been made.
All that, Smith is telling the judge, is reason to let Montenegro and Petersen, who were not part of the original case, file an appeal.
The lawsuit, filed in 2020, is on behalf of three transgender boys whose Arizona birth certificates list them as female and a transgender girl identified as male.
Rachel Berg, an attorney with the National Center for LGBTQ Rights, said some individuals have "gender dysphoria,'' a disconnect between the person's identity and the assigned sex.
She said one of the treatments is to align the person's life with his or her gender identity. And while that could include hormone-replacement therapy and surgery, she said it starts with "social transition,'' changing their names, using different pronouns, adopting clothing and grooming habits associated with their peers of the same gender identity.
Further complicating the issue is that then-Gov. Doug Ducey signed a law in 2022 which bars doctors from performing "irreversible gender reassignment surgery'' on minors -- the procedure that state law considers a legal prerequisite before the health department can change a child's birth certificate.
Attorneys for the state defended the law, saying it has nothing to do with discrimination and everything to do with accurate records.
The lawyers argued that all the birth certificate does is create a record of "the external genitalia of the person at the time of birth as observed by a medical professional present at the birth.'' And they said none of that restricts how people identify themselves.
Soto disagreed, saying that birth certificate is what individuals need to present as identification.
"Their outward physical appearance will not fit with the gender markers on their birth certificate,'' the judge said of the concerns of those affected. "Thus, if these documents are presented to others, they would, of course, be forced to involuntarily out themselves as transgender.''
It is that ruling that the health department and the governor's office is still deciding whether to appeal. And it is that lack of a decision that Smith said should entitle Montenegro and Petersen to appeal.
More immediately, however, Smith wants Soto to delay
his order. And the key is that January deadline for the health department to start issuing amended birth certificates.
He said once that procedure starts, it may be impossible to undo. And that, said Smith, would result in "irreparable harm'' to the state -- and the legislative leaders -- if an appellate court ultimately reverses Soto's decision.
"The legislative leaders are not aware of any procedure to revoke amended birth certificates issued pursuant to a reversed court order,'' he wrote. "Nor is it clear that the legislative leaders could pass legislation setting forth such a procedure after amended birth certificates have been issues.''
Put simply, once someone gets an amended birth certificate, there may be no way for the health department to rescind it.
Montenegro, in a separate statement, said Soto should allow him and Petersen to intervene in the case to try to reinstate the requirement that amended birth certificates should be issued only after sex-reassignment surgery.
"Arizona's laws are not optional,'' he said.
"The ruling now opens the door for anyone to change the sex marker on a birth certificate with just a doctor's not,'' Montenegro said. And that, he said, means "erasing decades of statute and undermining the integrity of vital records.''
But the new legal filings on behalf of Montenegro and Petersen are about more than whether there will be an appeal. Smith claims that one reason an appeal is needed is that Mayes has not adequately represented the interests of the GOP lawmakers in defending the surgery requirement.
In fact Smith, in his legal filing, suggested that the outcome of the case might have been different had Montenegro and Petersen been involved in the case from the beginning. Instead, the judge limited the two lawmakers to filing only "friend of the court'' briefs to make their points.
Smith argues there were legal points raised by the two lawmakers that the Attorney General's Office "never sought nor intended to raise,'' such as whether the remedy Soto was imposing -- eliminating the need for surgery -- was appropriate. Smith also said there were arguments, also never presented, about how judges in other similar cases across the nation did not reach the same conclusion as the judge here.
Montenegro said there is every reason that he and Petersen should be involved in the case -- and the appeal.
"When a federal court rewrites a statute, the Legislature has a duty to defend it,'' he said. "If the attorney general won't defend Arizona's laws, we will.''
Richie Taylor, press aide for Mayes, said Smith's legal filings amount of little more than "partisan political attacks'' against Mayes, a Democrat, by the two Republicans. That includes including Petersen who is running to unseat her in the 2026 election.
He said the court record shows that Mayes, who inherited the case from Mark Brnovich, her Republican predecessor, did defend the surgery requirement in the law. Taylor called the comments by Montenegro and Petersen "offensive to the attorneys who have worked on this case on behalf of their client.''
Soto has not set a date to consider the request by the two GOP lawmakers to intervene.
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