IN RE: the Application of “MARY” (a Fictitious Name). (2022)

By Petition sworn on February 18, 2022, Petitioner seeks an order changing Petitioner's name and sex designation.¹ As part of Petitioner's request for a sex designation change, Petitioner seeks a sex designation change on Petitioner's birth certificate and social security card. Petitioner was born in Vermont and is currently a New York State resident.

Effective December 21, 2021, New York's Civil Rights Law (“CRL”) was amended to add Article 6-a, titled “Change of Sex Designation.” CRL § 67(2) states, in pertinent part:

When an individual petitions the court to recognize their gender identity or to amend the sex designation on an identity document, the court shall issue such an order upon receipt of an affidavit from such individual attesting to their gender identity or reason for the change. No additional medical evidence shall be required to grant such request. [emphasis added].

Thus, under New York State law, the Court has no discretion, and the petition must be granted on presentation of the prescribed affidavit. One of the primary purposes for the promulgation of CRL Article 6-a was to provide a procedure to obtain a court order changing the sex designation on vital records for New York residents who were born in states that require a court order to change sex designations on identity documents.

Under current Vermont law, 18 Vt. Stat. Ann. (“V.S.A”) § 5112(a), an individual must utilize a Vermont administrative process to seek a sex designation change on their birth certificate.² In essence, the administrative process requires application to the State Registrar supported by “sufficient evidence to determine that an individual's sexual reassignment has been completed.” 18 V.S.A. § 5112(a)(1). An administrative denial of the application for a new birth certificate is reviewable by the Probate Division of the Vermont Superior Court. 18 V.S.A. § 5112(b)(2). The administrative denial of an application is a prerequisite to court involvement. See 18 V.S.A. § 5112(b)(2). Petitioner herein does not claim that Petitioner went through the Vermont administrative process.

The obvious problem presented to the Court is that New York State law requires a New York State court to issue a directive with respect to a Vermont identity document, maintained by a Vermont executive agency (the Vermont Department of Health, State Registrar), which is not authorized by Vermont law.

In light of this clear conflict, the Court holds that Civil Rights Law § 67(2), as applied to Petitioner's request to modify a Vermont birth certificate, is unconstitutional.³ Under the federal system created by the United States Constitution, the principle that each of the fifty states are sovereign entities within their own geographic borders (subject to certain limitations) is so foundational and well-established that the Court need not speak at length on the subject. For purposes of this decision, the following description of the limits of a state's powers or sovereignty suffices:

A state is generally prohibited from asserting legislative power over parties and activities wholly beyond its borders, and the principle that state statutes generally have no extra-territorial effect remains a foundation of the respect for individual sovereignty the states must share with one another. A state may validly regulate activities, persons, and property within its jurisdiction․ However, a state's sovereignty over persons, property, and activities extends only within the state's geographical borders, and therefore, its laws have no operation in another state except as allowed by the other state or by the principle of comity.

16 Am Jur 2d, Constitutional Law § 221 [internal citations omitted]. Hence, it has been held that the Constitution does not “permit one state to project its regulatory regime into the jurisdiction of another state.” Senne v. Kansas City Royals Baseball Corp., 934 F.3d 918, 930 [9th Cir. 2019] [internal citations omitted]. Similarly, among its other frequent statements confirming that the fifty states are coequal sovereigns, the United States Supreme Court has held that states may not “regulate and control activities wholly beyond [their] boundaries․” Rocky Mtn. Farmers Union v. Corey, 913 F.3d 940, 954 [9th Cir. 2019], quoting Watson v. Empl. Liab. Assur. Corp., 348 U.S. 66, 70, 75 S.Ct. 166, 99 L.Ed. 74 [1954] (holding states are without power to exercise extraterritorial jurisdiction.)

The Full Faith and Credit Clause of the United States Constitution (US Const, art IV, § 1) operates to ensure that “[f]ull Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” In analyzing the clause, the Supreme Court has stated:

[T]he very nature of the federal union of states ․ precludes resort to the full faith and credit clause as the means for compelling a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.

Pacific Empl. Ins. Co. v. Indus. Acc. Commn. of the State of California, 306 U.S. 493, 501, 59 S.Ct. 629, 83 L.Ed. 940 [1939].

In Matter of Arnold v. Department of Health, 174 A.D.2d 409, 409-410, 571 N.Y.S.2d 14 [1st Dept. 1991], the First Department held that a Maryland court, in authorizing name changes for children before it, could not direct the New York City Department of Health to issue new birth certificates reflecting the name change. While the name changes effected may have been valid and entitled to full faith and credit, that aspect of the court's directive which required an out-of-state executive agency to issue new birth certificates was not entitled to full faith and credit. Id. The First Department's reasoning was simple; the Maryland court did not have jurisdiction over the respondent agency and was therefore without power to direct the out-of-state agency to act. Id. at 410, 571 N.Y.S.2d 14; see also People ex rel. Halvey v. Halvey, 330 U.S. 610, 614, 67 S.Ct. 903, 91 L.Ed. 1133 [1947] (noting that for a judgment to be entitled to full faith and credit, the issuing court must possess both subject matter and personal jurisdiction).

A somewhat similar outcome was reached by the Fifth Circuit Court of Appeals in Adar v. Smith, 639 F.3d 146 [5th Cir. 2011]. In Adar, an unmarried, same-sex couple who adopted a child in New York sought to have the Registrar of the Office of Vital Records of the State of Louisiana, where the child was born, issue an amended birth certificate which listed both adoptive parents on the certificate. Id. at 149-150. The Registrar refused since Louisiana law only permitted married couples to jointly adopt a child. Id. The adoptive parents sued alleging that the Registrar's refusal to recognize a New York State adoption decree violated the Full Faith and Credit Clause of the Constitution. Id. at 150. The Court found no violation of the Full Faith and Credit Clause where Louisiana circumscribed the kind of birth certificate available to unmarried parents since, quoting Pacific Empl. Ins. Co. v. Indus. Acc. Commn. of the State of California, 306 U.S. at 501, 59 S.Ct. 629, the Full Faith and Credit Clause does not compel one state to substitute a statute of a sister state in an area where the state is competent to legislate. Adar, 639 F.3d at 160; see also Franchise Tax Board of California v. Hyatt, 578 U.S. 171, 176, 136 S.Ct. 1277, 194 L.Ed.2d 431 [2016]. The Court went on to note that Louisiana could be described as the “sole mistress” of its identity documents and that a New York adoption decree could not compel within Louisiana “an official act within the exclusive province” of that state. Adar, 639 F.3d at 160, quoting Hood v. McGehee, 237 U.S. 611, 615, 35 S.Ct. 718, 59 L.Ed. 1144 [1915]; Baker v. General Motors Corp., 522 U.S. 222, 235, 118 S.Ct. 657, 139 L.Ed.2d 580 [1998].⁴ The Court also thinks it noteworthy that all the parties to Adar apparently agreed that “birth certificates are merely ‘identity documents that evidence ․ the existing parent-child relationships, but do not create them.’ ” Adar, 639 F.3d at 159. All parties recognized that the child was legally adopted in New York and nothing that Louisiana did or did not do could change that. Id.

This Court lacks jurisdiction to order a Vermont executive agency to take an action where the Vermont statute at issue does not explicitly permit action upon such a directive from a court. Were this Court to order Vermont's State Registrar to amend or issue a new birth certificate as mandated by New York's CRL § 67(2), the Court would run afoul of the Full Faith and Credit Clause. Stated differently, the New York statute demands that this Court act where it has no jurisdiction. Absent a grant of authority from the people of the State of Vermont, duly enacted through its legislature, this Court cannot, consistent with the United States Constitution, amend the Vermont birth certificate as required by CRL § 67(2).

However, the Court's power in terms of recognizing Petitioner's requested sex designation change and a corresponding change of Petitioner's social security records is not similarly constrained. As the Court in Adar recognized, a New York court is fully empowered to issue an adoption decree permitting the adoption of a child by a same-sex, unmarried couple pursuant to the laws of the State of New York, even though Louisiana is not required to issue new identity documents based upon the New York decree. The same is true here. While Vermont is not required to amend or issue a new birth certificate based upon the decree of a New York Court, the New York Court is empowered to recognize and decree that Petitioner is entitled to a change of sex designation from “female” to that of “male.” By its plain language, CRL § 67(2) states that “[w]hen an individual petitions the court to recognize their gender identity or to amend the sex designation on an identity document, the court shall issue such an order upon receipt of an affidavit from such individual attesting to their gender identity or reason for the change.” [Emphasis added]. Thus, the Court must take the step of recognizing Petitioner's sex designation change, without taking the added step of directing the Vermont State Registrar to amend or reissue Petitioner's birth certificate.

With respect to Petitioner's request to authorize a change of sex designation on Petitioner's social security records, federal law authorizes change of gender marker on social security records pursuant to a “Court order directing legal recognition of change of gender.” See Social Security Administration (SSA) Equity Action Plan in Agreement with EO 13985 at 17, February 10, 2022, https://www.ssa.gov/open/materials/SSA-EO-13985-Equity-Action-Plan.pdf, (last accessed May 2, 2022); Social Security Administration Program Operations Manual System (“POMS”), Records Maintenance (“RM”) 10212.200, § B(2).

ACCORDINGLY, IT IS HEREBY

ORDERED, pursuant to New York Civil Rights Law Article 67-a, the portion of Petitioner's application which seeks an order changing Petitioner's sex designation from “female” to “male” is GRANTED; and it is further

ORDERED, pursuant to New York Civil Rights Law Article 67-a, that portion of Petitioner's application that seeks a sex designation change from “female” to “male” in Petitioner's Social Security records is GRANTED; and it is further

ORDERED, the portion of Petitioner's application which seeks an order changing Petitioner's sex designation on a Vermont birth certificate is DENIED.

FOOTNOTES

1.   The Court's authority to authorize a change of Petitioner's name is not in question. By an “Order Granting Name Change” of even date, the Court grants that aspect of Petitioner's application.

2.   The State of Vermont has amended 18 V.S.A. § 5112. See 2022 Vermont Acts and Resolves No. 88 (H. 628). However, the amendment is not effective until July 1, 2022.

3.   Pursuant to CPLR 1012(b)(1), the Court informed the New York State Attorney General's Office that the constitutionality of CRL§ 67(2) was at issue in this matter. By letter dated April 15, 2022, the Attorney General advised that it would not participate in this proceeding at this time.

4.   As Adar illustrates, under the Full Faith and Credit Clause, there is a “stark distinction” between recognition of an out-of-state judgment and enforcement of an out-of-state judgment. While a state may be bound to recognize a valid out-of-state judgment, how that state enforces a judgment within its own geographic borders is another matter altogether. Adar v. Smith, 639 F.3d at 160-161.

Timothy J. Lawliss, J.