Puerto Rico Has Rational Basis for Allowing Only Two Genders for Birth Certificate Gender Changes

From Tuesday’s decision by Judge Lara Montecalvo, joined by Chief Judge David Barron and Judge Sandra Lynch, in Díaz v. Colón:

In its summary judgment order, the district court held that Plaintiffs were entitled to relief under the Equal Protection Clause of the Fourteenth Amendment. {[T]he district court only reached Plaintiffs’ claim under the Equal Protection Clause; it did not reach Plaintiffs’ claims under the Due Process Clause or the First Amendment of the U.S. Constitution and Puerto Rico Constitution.}

Explaining that the Application for Gender Change gives “an option for binary applicants to choose a gender marker which aligns with their true gender, but does not provide [such] an option” for “nonbinary individuals,” the district court concluded that Puerto Rico’s “Birth Certificate Policy” creates a classification on its face between “people with a binary gender identity” and “nonbinary people.” The district court also concluded that it did not need to decide which level of scrutiny applied to Puerto Rico’s Birth Certificate Policy because it held that the Policy did not survive the lowest level of scrutiny—rational scrutiny….

Under [the]”forgiving” standard [set forth by past cases], we conclude that Puerto Rico’s Birth Certificate Policy is supported by a rational basis….

Plaintiffs’ argument is founded on current Puerto Rico law, which permits transgender binary people to update the gender on their birth certificates. But Puerto Rico law allows this update because it responded to the Arroyo González v. Nevares (D.P.R. 2018) holding that the policy in effect at the time violated transgender binary individuals’ privacy rights.

Unlike the transgender binary plaintiffs in Arroyo González, … Plaintiffs conceded that the Birth Certificate Policy does not violate the informational privacy right that Arroyo González contemplated, recognizing that a nonbinary gender marker inherently discloses a person’s nonbinary status. Plaintiffs also fail to develop a separate argument that Puerto Rico’s interest in protecting privacy rights is not furthered by the Birth Certificate Policy and its challenged classification between transgender binary people and transgender nonbinary people.

Puerto Rico has a legitimate interest in protecting the privacy rights of people born in Puerto Rico, and as Plaintiffs have neither argued nor demonstrated that the Birth Certificate Policy infringes on their privacy rights or that privacy rights are not furthered by the Policy, there is a rational relationship between the challenged classification and this legitimate interest. It is thus conceivably rational for Puerto Rico to not update transgender nonbinary people’s birth certificates while updating transgender binary people’s birth certificates.

For the foregoing reasons, we vacate the district court’s order and remand to the district court for further proceedings consistent with this opinion.

Here’s more from the opinion about just how forgiving the rational basis test is:

Under the rational basis standard, government conduct “is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” The Supreme Court has recently, in U.S. v. Skrmetti (2025), established the binding standards for rational basis review in an equal protection challenge:

We have reconciled the principle of equal protection with the reality of legislative classification by holding that, “if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.” We generally afford such laws “wide latitude” under this rational basis review, acknowledging that “the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes.”

It went on to hold:

The rational basis inquiry “employs a relatively relaxed standard reflecting the Court’s awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one.” Under this standard, we will uphold a statutory classification so long as there is “any reasonably conceivable state of facts that could provide a rational basis for the classification.” Where there exist “plausible reasons” for the relevant government action, “our inquiry is at an end.”

And it explained that:

“[T]he fact the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration.”

As we have explained, “[t]he question is not what went on in the mind of the [government] actor but whether anyone, including the judge, can conceive of a rational reason for such a classification.” …

Puerto Rico Solicitor General Omar Andino-Figueroa and Deputy Solicitor General Frank A. Rosado Méndez represent Puerto Rico.