West Virginia Advanced a Bill Banning Nonbinary, Intersex Markers on Birth Certificates

West Virginia’s House of Delegates has passed a bill banning nonbinary and intersex designations on state birth certificates, a Republican-sponsored measure that half the chamber’s Democrats also supported.

HB 4233, if it passes the Senate and is signed into law, would officially ban the term “nonbinary” from appearing on West Virginian birth certificates, and a child’s sex at birth would be restricted only to “male” or “female.” West Virginia already limits sex labels to a male-female binary, as noted by the Movement Advancement Project and as seen on official state application forms. But HB 4233 would codify that erasure as a ban, preventing nonbinary and intersex West Virginians from being legally recognized in the future.

Out of 11 House Democrats, five joined with Republicans to approve HB 4233 last week, as TruthOut first reported. Minority Whip Shawn Fluharty was among those who voted in favor, along with Dels. Joey Garcia, Ric Griffith, Sean Hornbuckle, and Kayla Young. The bill passed through the House 93-5, and heads now to the Senate Health and Human Resources committee.

Them reached out to all five delegates for comment, only receiving a reply from Del. Young in the form of a video posted to TikTok on Tuesday. In the video, Young expressed regret for her vote, saying she was distracted by another vote on the “Women’s Bill of Rights” that same day, and believed the bill would not meaningfully change state policy. “I should have stood up to it in that instance, and my vote was completely wrong,” Young said.

Morgantown City Council member Brian Butcher responded on his personal blog to the results of Friday’s vote. “By endorsing this bill you have just told every constituent who was born intersex or with intersex children that they simply do not exist in the eyes of the law,” Butcher wrote. “That or you cared so little about their existence that you thought voting yes on this bill was ‘no big deal’ [….] Those on the other side of the aisle are passing legislation written to bring about a cultural genocide and you are complicit in that movement when you endorse such legislation.”

During floor debate last Friday, Del. Mike Pushkin — who is also the chairman of the West Virginia Democratic Party, and voted against the bill — pointed out that the state does not currently issue nonbinary birth certificates, Coal Valley News reported. The bill, therefore, would only “prohibit something that’s not being done already,” Pushkin argued. Republican Del. Tom Fast replied that he did not know whether the state issued such certificates, but that the bill “definitely sets forth a standard.”

After many years of legislative control, West Virginia Democrats’ power has dwindled over the past several elections, leading to a Republican supermajority in both the House and Senate. GOP legislators have used their newfound clout in part to introduce a swath of anti-LGBTQ+ bills, including a “Women’s Bill of Rights” declaring that the word “equal” doesn’t mean “same” — a new distinction in discrimination law which Republicans themselves say is targeted at trans athletes. Republicans are also pushing through several bills that would classify trans people’s bodies as “obscene matter” and tacitly endorse conversion therapy.

If HB 4233 is approved and receives Republican Gov. Jim Justice’s signature, the bill could then be challenged in court. Courts have not always sided with West Virginia’s anti-LGBTQ+ laws in the recent past: last year, the Supreme Court struck down the state’s ban on trans student athletes in sports leagues that match their lived gender. In 2022, a federal judge also struck down exclusionary rules in the state’s Medicaid program, requiring state-sponsored plans to include coverage for gender-affirming medical care.

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