For years, trans people born in Arizona heard the same thing from some courts: come back when you’ve had surgery. On October 6, a federal appeals court said that was never what the law required.

In Roe v. Johnston, the U.S. Court of Appeals for the Ninth Circuit ruled that Arizona’s birth certificate statute already gives every trans person a way to change their sex marker without surgery: a court order. And once a judge signs one, the state health department has to follow it.

“Simply put, all transgender people can amend the sex marker on their birth certificates under the statute by obtaining a court order,” Judge Roopali Desai wrote for the court (read the opinion).

It’s a real practical win. It also comes with a catch. Here’s both.

Two doors, one of them locked

Arizona’s statute, A.R.S. § 36-337, has two routes that matter here, as The Advocate explains:

  • The paperwork route. Send the registrar a written request plus a physician’s statement that you had a “sex change operation.” That’s section (A)(3).
  • The court route. Section (A)(4) says the registrar must amend a birth certificate when a court orders it.

The problem was how the second door worked in practice. The Arizona Department of Health Services took the position about a decade ago that it would not make the change without evidence of surgery, KJZZ reports. Some state judges then refused to even hear trans people’s petitions, on the theory that the department wouldn’t honor the order anyway.

That’s exactly what happened to two of the three plaintiffs, trans kids whose mothers testified that Arizona trial courts denied their requests for that reason.

What the court decided

The Ninth Circuit read the statute’s plain text and found that the court-order provision is a broad catch-all. Its key points:

  • No surgery needed for a court order. Requiring proof of surgery under (A)(4) “simply because it is required by section (A)(3)” is improper, the opinion says.
  • Judges can’t guess. For a court to decline an order because it predicts the department “wouldn’t honor it” is “doubly improper.”
  • The agency has no say. “The statute leaves no discretion to the agency; it shall amend a birth certificate if a court order directs it to do so.” Notably, the health department itself, a party to the case, “correctly takes no such position” in court.

Arizona Senate President Warren Petersen and House Speaker Steve Montenegro had stepped into the case to argue the opposite: that surgery is the only way, under either route. Their attorney, Justin Smith, argued that a new sex marker can only be objectively verified through a medical examination, the Arizona Capitol Times reports. The court rejected that reading, pointing to an earlier Arizona Court of Appeals case in which two mothers won the right to both be listed as “parent” on their child’s birth certificate through the same court-order provision.

Petersen is also the Republican nominee for Arizona attorney general, The Advocate notes. The legislative leaders had no immediate response to the ruling, according to KJZZ.

The catch

This was not a clean sweep for the plaintiffs, and it’s worth being clear about that.

The case was filed in 2020 by the National Center for LGBTQ Rights (NCLR) as a class action for all trans people born in Arizona who haven’t had surgery. U.S. District Judge James Soto had ruled the surgery requirement unconstitutional and struck the word “operation” from the statute and its regulation.

The Ninth Circuit reversed that. Because the court-order route is open to everyone, it found the statute doesn’t classify people by transgender status, applied the most lenient level of review, and held that it “does not violate the equal protection clause.” On due process, Desai wrote: “We find no constitutional violation” (Courthouse News). The injunction was vacated and the case sent back to the district court.

In the opinion’s own opening, the plaintiffs “do not need an injunction from this court to grant them relief.” In other words: the relief is already in the statute. Go use it.

The decision came from a two-judge quorum, Desai and Andrew Hurwitz, after Judge Susan Graber recused.

Why it still matters

Rachel Berg, the NCLR senior staff attorney who argued the appeal, said the ruling “removes outdated, burdensome barriers that made it nearly impossible for many transgender Arizonans, particularly young people, to obtain an accurate birth certificate” (The Advocate).

Accurate ID isn’t a small thing. A birth certificate that doesn’t match who you are can out you at school, at work, at a bank, every time you have to show it.

And it lands in a hostile stretch. In 2025, the Arizona legislature passed House Bill 2438, which would have removed the language letting trans people change their birth certificate even after surgery. Gov. Katie Hobbs vetoed it, along with two other anti-trans bills, The Advocate reports. Elsewhere, states have been closing gender marker changes entirely.

What happens next

  • The case goes back to the district court for further proceedings.
  • None of the coverage we read reported whether the legislative leaders will seek further review.
  • For now, the Ninth Circuit’s reading stands: an Arizona court order is enough, and the health department must honor it.

A court order isn’t free or instant, TransVitae points out: it can still mean legal costs and admin. But the door is open, and a federal court has written down that it’s open.

Sources: Ninth Circuit opinion, Roe v. Johnston; Courthouse News; Arizona Capitol Times; KJZZ; The Advocate; TransVitae. Photo: Mike Newbry / Unsplash.