Plecker would, I suspect, not be surprised to learn that in 2018, the birth certificate is being used as a weapon against transgender people. To him, the birth certificate always was a weapon; he deployed it in a nearly 40-year campaign of racial terrorism against Virginia’s black residents—and a disturbingly successful attempt at what Coleman calls “pencil genocide” against the state’s Native American population. It was particularly powerful in his hands because he was one of the architects of Virginia’s notorious Racial Integrity Act, passed in 1924 to prevent racially mixed marriages. Enforcing the Act required the state to maintain comprehensive records of its residents’ race. The race had to be recorded on the birth certificate, and Plecker policed that record-keeping ruthlessly. The birth certificate, he believed, was a key part of preserving the purity of the white race. Under the law, there were two and only two answers: “white” or “colored.” The notation was important: It would determine whom the individual could marry, where he or she could seek medical care, and even where he or she could be buried.
To Plecker, white supremacy was a matter of science. “Barely a month after the law passed, Plecker informed a new white mother that her child’s father was ‘negro,’” writes historian Gregory Michael Dorr in Segregation’s Science: Eugenics and Society in Virginia. “Plecker threatened the midwife in the same case,” he writes, “writing her that certifying a ‘colored’ child as white was a ‘penitentiary offense.’” Plecker refused to record the birth of any new members of the state’s Native American tribes. “[T]here are no descendants of Virginia Indians,” he explained, “who are unmixed with negro blood.”
As late as 1946, he asked whether “the integrity of the master race” was about to disappear “‘by the mongrelisations [sic] route?’” His legal legacy was not erased until 1967, when the U.S. Supreme Court held, in Loving v. Virginia, that the act’s restrictions on interracial marriage were “measures designed to maintain White Supremacy” and thus violated the Fourteenth Amendment’s equal-protection and due-process clauses. But his mode of thinking lives on.
As LGBT and transgender Americans have stepped out of the shadows, the birth certificate, and the rage for government-mandated identity, have surfaced again. The Supreme Court, in 2015, held that same-sex couples are entitled to marry “on the same terms and conditions as opposite-sex couples”; in 2017, the Court, in an unsigned opinion, announced those terms must extend to equality in the birth-certificate realm. When a woman married to a man gave birth in Arkansas, the man was automatically listed as the father, without regard to the biological fact of paternity—including where the child was conceived by artificial insemination. When two women married and a child was born under the same circumstances, the spouse was not so listed. The state argued its law was about “biological parentage”—but it was not; husbands were listed as fathers even when the child was conceived by sperm donation. Birth certificates, the Court said, are “more than a mere marker of biological relationships”—they are “a form of legal recognition” and thus must treat all couples equally. (Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch dissented.)