When Walter A. Plecker died in August 1947, his “death was considered a gift by many,” writes historian Arica L. Coleman in her searing history, That the Blood Stay Pure: African Americans, Native Americans, and the Predicament of Race and Identity in Virginia. “It marked the end of one of the most virulent, bureaucratic, and racist regimes in the history of [Virginia] and the nation.”
Six decades later, however, Plecker’s ghost still sometimes shows his face—most recently in litigation about the rights of transgender Americans.
Plecker was Virginia’s registrar of vital statistics from 1912 to 1946. He played a leading role in creating and enforcing the grotesque racial dictatorship called segregation, which ruled the South from the 1890s until 1964—and whose heritage still divides and degrades the region today.
When Plecker took office, the birth certificate was a relative novelty—a Progressive-era reform pushed in part as a eugenics measure to protect old-stock white America from nonwhites and immigrants. Plecker’s article, “A Standard Certificate of Birth,” published in 1914, was one of the first to advocate for nationwide registration of a baby’s birthdate, age, sex, “legitimacy,” and race. It urged that the forms be worded simply enough to be understood by midwives—to suit “the infantile intellects of our host of grannies, who hold in their dirt-laden hands the lives of thousands of mothers and infants.”
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.)
The infamous “bathroom bills”—passed and partially repealed in North Carolina, and proposed in more than a dozen other states—were also birth-certificate based; they would make binding for life the assignment of sex performed at birth. In Whitaker v. Kenosha Unified School District, decided last year by the U.S. Seventh Circuit Court of Appeals, Ash Whitaker, a transgender boy, was denied permission to use the boys’ bathroom despite two letters from his physician. At oral argument, the district argued instead that it would only accept “a birth certificate that designated his sex as male.” The appeals court, holding for Ash, noted the “arbitrary nature” of reliance on birth certificates.
Gavin Grimm v. Gloucester County School Board was decided last month by the Fourth Circuit; Grimm, a transgender boy, was blocked from use of the boys’ room after parent complaints. Even when a Virginia court granted him an amended birth certificate, the school board would not budge, saying that his “biological gender” was still female. “The board’s argument,” the appeals court wrote, “rings hollow.”
As of 2017, the Transgender Law Center lists four states—Idaho, Kansas, Ohio, and Tennessee—as barring transgender persons from changing their gender on a birth certificate. Since the list was compiled, federal judges in Puerto Rico and Idaho have struck down the no-gender-change policies. Lawsuits are pending in Kansas and Ohio. In some of the remaining states, the state’s vital-records division will make the change after receiving medical certification; in others, a transgender applicant must go to court. Sixteen of the states require transgender applicants to produce proof that they have undergone some form of gender-reassignment surgery.
Faulkner University law professor Adam J. MacLeod argues that these changes to birth certificates should not be made:
… the correspondence between a child’s identity and natural parentage is precisely why birth certificates list the child’s actual, biological parents. As embodied beings, our identity is constituted in large part in our biological reality. Each of us inherits (for better and worse) the biological basis for his identity from his father and mother. To record as parent someone who is not the child’s biological parent is to make a permanent misstatement about the child’s identity.
It seems clear, however, that what we call birth certificates are not scientific or medical documents. When a baby is born, hospitals fill out and file what is called a form attesting to a “live birth,” which contains information about parentage, weight, sex, and general health and is shared with public-health authorities. The birth certificate, issued later, is primarily used as a form of identification. It is frequently altered later in life—most commonly after adoption, when most states allow the adoptive parent or parents to be substituted for those recorded at birth. Transgender people seek the same opportunity to make their birth certificates match their present identity.
It’s easy to understand why laws about transgender people would be in flux; transgender people have only recently become fully visible to the larger society. Only in 2013 did the American Psychiatric Association’s authoritative Diagnostic and Statistical Manual relabel “gender identity disorder” as “gender dysphoria”—meaning that the persistent perception of gender identity different from the one assigned at birth can be assessed by medical professionals, but is not a mental illness. “Dysphoria” is a term denoting distress or unease. Many—but not all—transgender people experience high levels of distress about their gender identity—but much of it, psychiatrists now believe, arises less from the identity itself but from the fact that society refuses to accept the gender identity they express.
Controversies continue over diagnostic criteria and the proper treatment of children with dysphoria. But the mainstream of science and medicine now recognizes transgender status as genuine. Whatever its clinical name, it is not a pathology. States will amend birth certificates for adopted children and for children conceived by artificial insemination. Why not for those who can provide medical documentation of their proper gender identity? For that matter, if competent medical evidence shows the individual’s correct gender identity, why should the state take it on itself to demand that the individual prove it by going under the knife? Some transgender people do not have surgery—either because they can’t afford it or because they don’t choose it. That shouldn’t be used against them by the state.
The opposition to recognition of transgender status makes the claim, first and foremost, that they are sticking up for science. There are two and only two sexes, male and female, they argue, and one is born one or the other. “Biology isn’t bigotry,” Ryan Anderson, a senior researcher at the Heritage Foundation and the author of When Harry Became Sally: Responding to the Transgender Moment, told a panel at Heritage. The emerging contrary medical consensus, Anderson argues, has come about because “transgender activists … [have] co-opted many professional associations for their cause.”
Behind the dispute, as Anderson readily admits, lurks a complex of beliefs that does not qualify as scientific—individual matters of conscience. “At the heart of the transgender moment are radical claims about the human person—in particular that people are who they claim to be in spite of evidence.”
But in the birth-certificate context, at any rate, the “claim” is made with medical evidence to back it up, in the form of doctors’ letters. If the real argument is about the nature of the “human person,” what statute reposes the power to resolve it in the state division of vital records?
Here is our old friend Walter Plecker, enforcing binaries in the name of science. What is curious is that some people who claim skepticism of big government in other areas are eager for it in this one. We can trust government to determine who we really are, and to make us wear that label for life.
Last month a federal court in Puerto Rico held that the commonwealth’s government must amend its birth certificates for transgender people. In a case brought by four transgender residents of the commonwealth and a local advocacy group, Puerto Rico Para Tod@s, and staffed by pro-bono lawyers from Lambda Legal and biglaw powerhouse Ropes & Gray, District Judge Carmelo Consuelo Cerezo wrote:
The right to identify our own existence lies at the heart of one’s humanity. And so, we must heed their voices: “the woman that I am,” “the man that I am.” Plaintiffs know they are not fodder for memoranda legalese. They have stepped up for those whose voices, debilitated by raw discrimination, have been hushed into silence. They cannot wait for another generation, hoping for a lawmaker to act. They, like Linda Brown, took the steps to the courthouse to demand what is due: their right to exist, to live more and die less.
Walter Plecker died before I was born. But I remember the last days of the system Plecker helped cement in place—a system where the state assigned individuals an identity at birth and used it to order every part of their lives. As Arica L. Coleman, the historian, documents in That the Blood Stay Pure, we are still recovering from this experiment in state regimentation of identity.
Plecker’s work “split up communities,” Coleman told me in an interview, pitting white against black and black against Native American, as the individual’s state-assigned status became a matter of life and death. “The harm that he did cannot be overstated.”