A Wisconsin law dating back to 1985 requires transgender and intersex people to undergo an undefined “surgical sex-change procedure” before a circuit court judge will change the sex designation on their birth certificate, and this week that requirement landed at the center of a new lawsuit in Dane County. The plaintiff at the heart of the case is Jaida Birch McGuire, a U.S. Coast Guard veteran born in Oshkosh, whose gender-affirming surgeries were reportedly canceled after her military health coverage ended under a federal policy change.
The ACLU of Wisconsin filed the lawsuit in Dane County Circuit Court, arguing that the statute's vague surgical mandate and its resulting restrictions violate the equal-protection provisions of the Wisconsin Constitution, according to Urban Milwaukee. The organization brought the case on behalf of both McGuire and the advocacy group Trans Law Help Wisconsin, and it did so with pro bono legal support from international law firm Willkie Farr & Gallagher LLP. The case has been assigned to Judge Stephen Ehlke, who presides over Dane County Circuit Court.
McGuire started transitioning to female in 2021 and received a gender dysphoria diagnosis through the military's health care plan, which allowed her to receive gender-affirming care and begin hormone replacement therapy, the lawsuit states. The Coast Guard had given her permission to wear female uniforms. But per the lawsuit, she was just one week away from receiving a surgery date for facial feminization procedures when President Donald Trump signed an executive order in 2025 prohibiting transgender and other gender-nonconforming people from serving openly in the military. The Trump administration subsequently stopped covering gender-affirming surgical procedures for military members, and McGuire's surgeries were canceled as her coverage ended. She was forced to retire from the Coast Guard in 2025.
A Statute With No Clear Definition
The core problem, according to attorney Jade Hall, who helped bring the case through the ACLU of Wisconsin, is that the law never says what counts as a qualifying surgery. Hall said some judges believe only top or bottom surgery qualifies, while others accept procedures that fall somewhere between surgery and hormone replacement therapy, and still others accept hormone replacement therapy on its own. That leaves the outcome dependent on which judge a petitioner happens to draw.
Hall also noted that the surgical procedures that could satisfy some judges are extremely invasive and may be contraindicated for specific people, meaning the law can effectively bar some transgender people from ever updating their records regardless of their medical history. “People should be believed when they say who they are,” Hall said, adding that matching all of a person's paperwork is necessary for transgender people to live the same life as cisgender people. Not all transgender people undergo surgical interventions in the first place, a point the lawsuit raises directly.
The ACLU of Wisconsin also argues that the statute discriminates against intersex people, who may be born with ambiguous genitalia or may have chromosomal or hormonal differences that do not neatly fit binary definitions of male or female. Wisconsin birth certificates offer no nonbinary or “X” marker option, restricting vital records strictly to male or female designations, according to the Movement Advancement Project.
Consequences of Mismatched Documents
When a person's official sex designation does not match their appearance, the lawsuit contends they can face being outed or subjected to discrimination. Mismatched paperwork can also create problems applying for government jobs, creating a will, or crossing borders, according to the filing. National data underscore the stakes: the 2022 U.S. Transgender Survey found that 22% of respondents who presented identification not matching their gender presentation experienced verbal harassment, assault, or denial of services, per Good Authority. The same survey found that 59% of transgender respondents said none of their official identity documents listed their preferred gender, according to Advocates for Trans Equality.
The inconsistency is not just national — it exists within Wisconsin's own bureaucracy. The Wisconsin Department of Transportation requires only a certified statement from a licensed physician or a court order to update a gender marker on a driver's license or state ID, with no surgical requirement at all, per Advocates for Trans Equality. That means transgender residents can already align their state IDs without surgery while remaining blocked from updating their birth records under the vital records statute administered separately by the state.
Wisconsin's Place Among Seven States
As of this month, Wisconsin is one of seven U.S. states that still require both a court order and proof of surgery to change a birth certificate's gender marker, according to the Movement Advancement Project. Legal challenges elsewhere have gone the plaintiffs' way before: an Ohio federal court decision in 2020 invalidated that state's birth certificate surgical mandate as unconstitutional under equal protection guarantees, and Ohio officials chose not to appeal, instead setting up administrative update procedures.
Wisconsin lawmakers, meanwhile, have moved in the opposite direction. During the 2025–2026 legislative session, Senate Bill 312 proposed eliminating the ability to change birth certificate sex designations altogether, though the bill failed to pass. Governor Tony Evers's office declined to comment on the pending litigation. The governor's administration and Department of Health Services Secretary Kirsten Johnson are named as defendants in the suit because they are charged with administering the statute, even though Evers has repeatedly vetoed Republican-backed restrictions on transgender rights — including five bills he blocked in April targeting gender-affirming care for minors, school pronoun policies, and transgender sports participation.
