Appeals panel: State records office on hook for attorney's fees from class action over transgender birth certificate policy

The state office responsible for maintaining Illinois’ official records of births, deaths, marriages and other vital records could be on the hook for $135,000 in attorney’s fees, payable to those representing three transgender Illinois residents who sued the state over its former practice of refusing to change the gender designation listed on birth certificates for people unless they had undergone surgical procedures to change their genitalia.

A three-justice panel of the Illinois First District Appellate Court ruled on May 22 in favor of plaintiffs Lauren Grey, Victor Williams and Nicholas Guarino, who had brought a class action suit against the Illinois Department of Public Health. The justices upheld the decision of former Cook County Circuit Court Judge Michael B. Hyman, who had found the Illinois Civil Rights Act does not allow the state to claim sovereign immunity to avoid paying plaintiffs’ attorneys fees when successfully suing the state over an alleged civil rights violation.

Hyman now serves as a justice assigned to the First District Appellate Court’s Third Division.

The appellate opinion was authored by Justice Shelvin Louise Marie Hall, with justices Thomas E. Hoffman and Bertina E. Lampkin, each of the court’s Sixth Division, concurring.

The decision arises in the aftermath of a settlement reached in 2012 between IDPH and the plaintiffs, who were represented by the firm of Jenner & Block, of Chicago.

The plaintiffs had sued in 2011, asserting the state had violated their rights under the state’s Vital Records Act and the state constitution when the IDPH, in 2005, changed its official policy regarding gender changes on Illinois birth certificates.

Prior to 2005, the litigation had alleged the state had routinely agreed to change the gender mark on the certificates “to accurately reflect the gender identity for persons who had undergone a form of gender confirmation surgery that did not include genital surgery.”

However, in 2005, the state had changed that policy, refusing to change the gender designation on the certificates unless those requesting the official change had also undergone sugery to change their genitals to match their desired new gender designation.

About a year later, the two sides reached the settlement agreement. The plaintiffs did not seek any financial damage awards. The consent decree instead offered injunctive relief, requiring the IDPH to no longer require the gender reconstruction surgeries to secure a change in gender designation on the certificates.

However, the IDPH disputed the plaintiffs’ claims for $135,000 in attorneys’ fees and costs, asserting exemption under sovereign immunity.

Hyman ruled against the IDPH at trial, and the appellate panel agreed.

“The defendant (director of the IDPH) exceeded his authority under the Vital Records Act and violated the plaintiffs' and the class members' rights under the Vital Records Act and their rights to privacy and due process under the Illinois Constitution,” the justices wrote. “The injunctive and declaratory relief that was granted did not directly or adversely affect the state.

"The fact that the plaintiffs sought attorney fees and costs did not transform the plaintiffs' lawsuit into one against the state.”