Fowler v. Stitt, 104 F.4th 770

Background

Oklahoma State Department of Health (OSDH) permitted sex-designation amendments to birth certificates since at least 2007 but ceased doing so after Governor Stitt issued Executive Order 2021-24 following a settlement that produced a gender‑neutral amendment. The Governor later supported statutory limits (Okla. Stat. tit. 63, § 1-321(H)).
Three transgender Oklahomans (Fowler, Hall, Ray) obtained court orders directing amendment of their birth‑certificate sex designations, applied to OSDH, paid fees, and were denied pursuant to the Governor’s Executive Order and the Birth Certificate Policy.
Plaintiffs sued Governor Stitt, the OSDH Commissioner, and the State Registrar in their official capacities under 42 U.S.C. § 1983, alleging violations of the Fourteenth Amendment’s Equal Protection and Substantive Due Process Clauses; they seek declaratory and prospective injunctive relief (no damages).
The district court dismissed both claims under Rule 12(b)(6); the plaintiffs appealed. The Tenth Circuit reversed dismissal of the equal protection claim and affirmed dismissal of the substantive due process claim.
The panel held (1) Ex parte Young applies so Eleventh Amendment immunity does not bar the suit against the state officials; (2) plaintiffs plausibly alleged purposeful discrimination against transgender people and, under Bostock reasoning, discrimination based on sex; (3) the Birth Certificate Policy fails rational basis review (and therefore intermediate scrutiny would also fail); (4) plaintiffs failed to allege state action sufficient to sustain their substantive due process (privacy) claim.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Eleventh Amendment / Ex parte Young — can plaintiffs sue state officials for prospective relief?	Plaintiffs seek prospective injunctive relief for ongoing violations; defendants are officials who enforce the Policy.	State defendants argued Eleventh Amendment bars suit.	Ex parte Young applies: officials have enforcement connection; Eleventh Amendment immunity does not bar prospective relief.
Equal Protection — does the Policy purposefully discriminate against transgender people?	Policy denies only transgender people birth certificates matching their gender identity; sequence of events and Governor’s statements show discriminatory intent.	Defendants contend Policy is facially neutral and aims to preserve vital‑records accuracy.	Plaintiffs plausibly alleged purposeful discrimination against transgender people.
Equal Protection — is the Policy sex‑based discrimination (Bostock) and what scrutiny applies?	Applying Bostock, discrimination against transgender people is necessarily discrimination in part because of sex; intermediate scrutiny applies.	Defendants argued Bostock is limited to Title VII/employment and the Policy is equally applied to all sexes.	Court applied Bostock reasoning: Policy discriminates in part because of sex; intermediate scrutiny applies but was unnecessary to reach because Policy fails even rational basis.
Substantive Due Process — does denying amendments violate a privacy right because third parties will learn plaintiffs’ transgender status?	Plaintiffs say forced disclosures of birth certificates cause involuntary disclosure of highly sensitive status and invade privacy.	Defendants argue disclosures by private third parties are private conduct; §1983 requires state action causing the alleged privacy injury.	Dismissed: plaintiffs failed to plead that third‑party disclosures are fairly attributable to the state (no coercion or significant encouragement).

Key Cases Cited

Ex parte Young, 209 U.S. 123 (1908) (suits for prospective injunctive relief against state officers allowed despite Eleventh Amendment)
City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) (equal protection tiers of scrutiny framework)
Bostock v. Clayton County, 590 U.S. 644 (2020) (discrimination against transgender persons necessarily involves discrimination because of sex)
Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977) (factors for inferring discriminatory intent)
Washington v. Davis, 426 U.S. 229 (1976) (disparate impact alone does not prove discriminatory intent)
Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256 (1979) (intent to discriminate requires showing decision was made at least in part because of differential effect)
Romer v. Evans, 517 U.S. 620 (1996) (when a law lacks a rational relation to legitimate interests, it may evince animus)
F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) (rational‑basis review requires only some conceivable legitimate purpose)
Loving v. Virginia, 388 U.S. 1 (1967) (equal application does not eliminate invidious classifications)
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (Equal Protection protects persons; discussion of scrutiny tiers)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard for plausible claims)
VDARE Found. v. City of Colo. Springs, 11 F.4th 1151 (10th Cir. 2021) (illustrative nexus test application for state‑action analysis)
SECSYS, LLC v. Vigil, 666 F.3d 678 (10th Cir. 2012) (Gorsuch) (framework for proving discriminatory intent against generally applicable laws)