Birth Certificates!

Who issues birth certificates?

Last Tuesday, I wrote about the federal investigation involving Smith College, and it left me thinking more broadly about how identity is defined in law. In the United States, birth certificates are issued by the states, not the federal government. That raises a constitutional question worth unpacking: where in the Constitution is the federal government given authority to define sex or gender for legal purposes?

The Trump administration has said that passports will reflect sex assigned at birth only. But that raises several questions. First, in states like Connecticut, birth records are maintained by the state and are not typically accessible as a simple personal document in the same way a driver’s license is. So how would federal agencies determine “birth sex” in practice? For many people, the passport itself may already be the primary federal identity document.

Second, the Constitution does not explicitly grant the federal government a general power to define a person’s sex or gender across all legal contexts. Historically, federal agencies have relied on state-issued birth certificates and other identity documents when administering programs, including passport issuance through the United States Department of State.

Third, executive actions, such as orders addressing how federal agencies recognize sex categories and raise an important legal question. Even if the federal government sets internal definitions for its own programs, does that override or displace state-issued identity records? In my view, this raises a broader federalism issue: states traditionally control vital records, while the federal government operates within enumerated powers.

When federal agencies adopt definitions that differ from state-issued birth certificates, the question becomes whether that authority comes from a valid constitutional or statutory source, or whether it exceeds the federal government’s enumerated powers. I believe that the authority to define and record vital identity information should remain primarily with the states. The federal government can only allow M&F and not an X on forms, etc. but they have to go by state determination of gender

When arguments turn to biology, chromosomes, or other medical criteria to define sex for legal purposes, it raises further questions about where that authority is grounded in the Constitution. The federal government is not granted a general police power over identity classification.

So to sum it up:

• States control vital records (like birth certificates).
• The federal government has only enumerated powers under the United States Constitution.
• The federal government generally does not have a general police power over identity definitions.
• Under the Tenth Amendment to the United States Constitution, powers not delegated to the federal government are reserved to the states or the people.