amending birth certificates
Oklahoma Gov. Kevin Stitt issued an executive order regarding birth certificate amendments and the Oklahoma State Department of Health on Monday, Nov. 8, 2021. (Screenshot)

Gov. Kevin Stitt issued an executive order Monday directing the Oklahoma State Department of Health to adhere to existing state statute when it comes to amending birth certificates. The order comes in response to a settlement agreement in a federal lawsuit, which authorized the agency to amend birth certificates to reflect nonbinary sex designation in response to a court order.

“It has come to my attention that the Oklahoma State Department of Health has entered into a settlement agreement which was not reviewed or approved by my administration,” Stitt stated in his order. “This settlement requires OSDH to amend birth certificates in a manner not permitted under Oklahoma law. This order ensures that this unauthorized action will be corrected.”

The order calls for OSDH to:

  • Cease amending birth certificates in any way that is not consistent with Title 63, Section 1-321 of state statute;
  • Remove from its website any reference to amending birth certificates;
  • Inform the governor’s office of any pending litigation that is related to amending birth certificates in Oklahoma;
  • Provide the governor’s office with any other information that OSDH feels is responsive to this executive order.

Stitt also encouraged legislators to pass legislation clarifying that changes to gender on birth certificates or a designation of nonbinary is contrary to Oklahoma law, a request that implies existing law does not expressly prohibit the issuance of amended birth certificates reflecting nonbinary sex designation.

“The Oklahoma State Department of Health stands committed to serving the citizens of Oklahoma in maintaining the integrity of vital records,” OSDH spokesperson Rachel Klein said in a statement. “Pursuant to Gov. Stitt’s executive order, OSDH will continue to amend birth certificates as allowed by law. These amendments will include legal change of name or corrections of errors. OSDH will work with the governor and attorney general on any orders for amendments which may fall outside the scope of 63 O.S. 1-321. OSDH will continue to uphold its mandate in the area of vital statistics within the authority granted by the Oklahoma Legislature.”

Executive order comes as a response to lawsuit settlement

The legal settlement that authorized the issuance of nonbinary birth certificates went into effect in early October. It resolved a lawsuit filed in federal court by Oklahoma native and Oregon resident Kit Lorelied in August 2020.

Stitt denounced the agreement, saying he would take “whatever action necessary to protect Oklahoma values and our way of life.”

“I believe that people are created by God to be male or female. Period,” Stitt said a press release. “There is no such thing as non-binary sex and I wholeheartedly condemn the purported OSDH court settlement that was entered into by rogue activists who acted without receiving proper approval or oversight.”

The next day, Dr. Lance Frye stepped down as Oklahoma commissioner of health.

House Speaker Charles McCall (R-Atoka) and Senate President Pro Tempore Greg Treat (R-OKC) also released statements condemning the settlement. They argued the change violated Oklahoma statute and called on Stitt to issue an executive order reversing the Health Department decision.

“This executive branch agency acted outside its scope of authority, and now the governor, as the leader of that branch of government, must correct it immediately through executive order,” McCall said in a press release on Oct. 21.

He pointed to Title 74, Section 20f of Oklahoma law, which requires that a “settlement involving injunctive relief which substantially impacts the operation or programs of a state agency (…) shall be reviewed prior to its finalization by the president pro tempore of the Senate or his designee, the speaker of the House or his designee, and the governor or his designee.”

Treat’s statement echoed McCall’s, saying, “The authority to institute policy changes of this magnitude rightly belongs within the legislative branch, the branch of government closest to the people. Executive branch agencies should not attempt to legislate or make substantive policy changes like this through rulemaking or court settlement.”

House Minority Leader Emily Virgin (D-Norman) criticized Stitt’s statement.

“The governor used his pulpit to attack Oklahomans. Period,” Virgin said. “The governor’s suggestion that nonbinary people don’t qualify as Oklahomans is abhorrent and completely unbecoming of a governor. Moreover, it is dangerous. We are elected to help people not make their lives harder.”

The Trevor Project found more than half of transgender and nonbinary youth “seriously considered attempting suicide” in a 2021 report.

“I would ask that [lawmakers] consider not how they fight processes that help folks but instead listen to transgender and gender diverse people in Oklahoma to better meet their needs,” Freedom Oklahoma executive director Nicole McAfee told NonDoc at the time.