According to the lawsuit, the policy has meant that gender markers and legal names are not being changed for transgender individuals in West Virginia.

CHARLESTON, W.Va. (AP) — Policies that allow West Virginia officials to refuse to change a transgender person’s gender on their birth certificates should be declared unconstitutional, according to a new federal lawsuit.

The American Civil Liberties Union and the Harvard Law School LGBTQ+ Advocacy Clinic on Thursday sued the Department of Health and Human Resources on behalf of two transgender men born in West Virginia, The Exponent Telegram reported.

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The suit stems from a ruling by the West Virginia Supreme Court last year that said circuit judges could no longer issue court orders telling health officials to change birth certificate gender markers. The lawsuit says the ruling led to health officials refusing to change gender markers and prior legal names on birth certificates of transgender individuals.

The Department of Health and Human Resources has the authority under state law to make requested changes without a court order, according to ACLU of West Virginia Legal Director Loree Stark. Denying such requests violates transgender individuals’ constitutional rights to free speech, due process and equal protection, Stark said.

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West Virginia is “one of the last remaining states in the nation” where the gender marker on birth certificates can’t be changed, Harvard Law School LGBTQ+ Advocacy Clinic Director Alexander Chen said.

The Department of Health and Human Resources said it is unable to comment on pending litigation.

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