Could a Tennessee government record's sex designation be changed after sex-reassignment surgery, per the AG's 2014 reading?

Subject

Opinion No. 14-70, Changing Sex Designation on Certain Government Records, July 16, 2014

Plain-English summary

District Attorney General Jerry Woodall asked whether a person's sex designation on police booking sheets, warrants, and other court records could be changed as a result of sex-reassignment surgery. The AG concluded that a court would likely say no based on Tenn. Code Ann. § 68-3-203(d).

§ 68-3-203(d) provided that "[t]he sex of an individual shall not be changed on the original certificate of birth as a result of sex change surgery." The AG had previously read that provision in Op. 88-43 (Feb. 29, 1988) to mean a person's sex under Tennessee law is determined at birth and that surgery would not alter sex for marriage purposes. § 4-21-102(20), added by 2011 Tenn. Pub. Acts ch. 278, § 2, defined "sex" for purposes of the Tennessee Human Rights Act as "the designation of an individual person as male or female as indicated on the individual's birth certificate."

Reasoning from those two provisions, the AG concluded that where the sex designation on police booking sheets, warrants, and other court records had been entered in accordance with the person's birth certificate, those records likewise could not be altered as a result of sex-change surgery. The opinion's logic is that the records were correct when entered (per the birth certificate at the time), and the underlying statutory rule prevented altering the antecedent (the birth certificate itself).

This opinion reflects Tennessee policy as it stood in 2014, before subsequent constitutional and federal-law developments. The Tennessee Public Records Act exemption framework, the federal Equal Protection Clause analysis applied to transgender plaintiffs in subsequent litigation, federal court rulings on birth-certificate-change refusals, and statutory amendments in other states have all shifted the broader legal context since 2014. The AG opinion itself was the office's reading of Tennessee law at a particular point in time and does not by itself bind courts or future Tennessee policy.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What did § 68-3-203(d) say?

It provided that the sex of an individual could not be changed on the original certificate of birth as a result of sex-change surgery. The provision predates this opinion by many years.

What was the AG's logic for extending that to police booking sheets, warrants, and court records?

The AG read § 68-3-203(d) as embedding a more general policy: Tennessee government records that record sex by reference to the birth certificate would themselves not be subject to alteration based on surgery. If the underlying record (birth certificate) cannot change, derivative records that drew from it cannot change either.

Does this mean police could not update their records at all?

The opinion is narrow to changes "as a result of sex change surgery." It addresses the surgery-as-trigger scenario. Whether records can be administratively corrected for other reasons (clerical errors, identity changes via court order under different statutes, etc.) is a separate question not addressed.

Has Tennessee or federal law changed since 2014?

This opinion is now over a decade old. Verify current Tennessee statutory law and any controlling case law before relying on this opinion. Federal courts have addressed birth-certificate-change refusals in several states since 2014, with mixed outcomes. Tennessee law on this subject is subject to ongoing change.

Could a court order a change?

The opinion does not address whether a court (in a separate proceeding) could order alteration of a particular police or court record. The opinion describes what § 68-3-203(d) requires generally, not what a court might do under its inherent record-correction powers in a specific case.

How is "sex" defined for the Tennessee Human Rights Act?

§ 4-21-102(20) (as of 2011) defined sex by reference to the birth certificate designation. The opinion cites this as another marker of the birth-certificate-anchored framework.

Background and statutory framework

Tennessee's statutory framework as of 2014 tied sex-designation rules to the birth certificate and prohibited changes to the original certificate based on surgery. The AG's 2014 reading extended that rule to other government records that had been entered consistent with the birth certificate. The opinion is a window into Tennessee state policy at the time, anchored in two statutory provisions and a 1988 AG opinion.

Subsequent constitutional and statutory developments in the federal courts and in other states have substantially changed the landscape in this area. A current researcher should not treat this opinion as describing current Tennessee policy without independent verification.

Citations

• Tenn. Code Ann. § 68-3-203(d) (sex on original certificate of birth not changed as result of sex-change surgery)
• Tenn. Code Ann. § 4-21-102(20) (Tennessee Human Rights Act definition of "sex" by reference to birth certificate)
• 2011 Tenn. Pub. Acts, ch. 278, § 2 (added § 4-21-102(20))
• Tenn. Att'y Gen. Op. 88-43 (Feb. 29, 1988) (sex determined at birth for purposes of marriage)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-070.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
July 16, 2014
Opinion No. 14-70
Changing Sex Designation on Certain Government Records

QUESTION

May the designation of a person's sex on police booking sheets, warrants, and other court records be changed as a result of sex-change surgery?

OPINION

A court would likely conclude, based on Tenn. Code Ann. § 68-3-203(d), that where the designation of a person's sex has been made on police booking sheets, warrants, and other court records in accordance with the person's birth certificate, the police booking sheets, warrants, and other court records may not be altered as a result of sex-change surgery.

ANALYSIS

Under Tenn. Code Ann. § 68-3-203(d), "[t]he sex of an individual shall not be changed on the original certificate of birth as a result of sex change surgery." This Office has previously opined that a court could conclude, on the basis of § 68-3-203(d), that "a person's sex under Tennessee law is determined at birth" and that "sex reassignment surgery would not alter the sex of a person for purposes of marriage." Tenn. Att'y Gen. Op. 88-43 (Feb. 29, 1988). See also Tenn. Code Ann. § 4-21-102(20) (added by 2011 Tenn. Pub. Acts, ch. 278, § 2) (for purposes of Tennessee Human Rights Act, "'sex' means and refers only to the designation of an individual person as male or female as indicated on the individual's birth certificate").

Changing the designation of a person's sex on existing police booking sheets, warrants, and other court records would require the alteration of such records. A court would likely conclude, based on § 68-3-203(d), that where the designation of a person's sex has been made on police booking sheets, warrants, and other court records in accordance with the person's birth certificate, the police booking sheets, warrants, and other court records may not be altered as a result of sex-change surgery.

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

TROY A. MCPEAK
Assistant Attorney General

Requested by:
The Honorable James G. (Jerry) Woodall
District Attorney General
P.O. Box 2825
Jackson, Tennessee 38301