Full Opinion

OSCN Found Document:FOWLER et. al v. STITT et. al FOWLER et. al v. STITT et. al 2026 OK 68 Case Number: 124023 Decided: 09/29/2026 THE SUPREME COURT OF THE STATE OF OKLAHOMA Cite as: 2026 OK 68 , __ P.3d __ NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. ROWAN FOWLER; ALLISTER HALL; CARTER RAY, Plaintiffs/Appellants, v. J. KEVIN STITT, in his official capacity as Governor of the State of Oklahoma; KEITH REED, in his official capacity as Commissioner of Health for the Oklahoma State Department of Health; KELLY BAKER, in her official capacity as State Registrar of Vital Records, Defendants/Appellees, AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF OKLAHOMA; GLBTQ LEGAL ADVOCATES & DEFENDERS; STATE OF KANSAS; STATE OF ARKANSAS; STATE OF IOWA; STATE OF INDIANA; STATE OF GEORGIA; STATE OF LOUISIANA; STATE OF MISSISSIPPI; STATE OF MISSOURI; STATE OF MONTANA; STATE OF NEBRASKA; STATE OF NORTH DAKOTA; STATE OF SOUTH CAROLINA; STATE OF TENNESSEE; STATE OF TEXAS; STATE OF UTAH; STATE OF WEST VIRGINIA; UNITED STATES OF AMERICA, Amici Curiae. CERTIFIED QUESTIONS FROM THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ¶ 0 The United States Court of Appeals for the Tenth Circuit certified three questions of state law to this Court pursuant to the Revised Uniform Certification of Questions of Law Act, 20 O.S. §§ 1601-1611. We answer Certified Question One in the affirmative. We answer Certified Question Two in the negative and Certified Question Three in the negative. CERTIFIED QUESTIONS ANSWERED Sasha Buchert, Lambda Legal Defense and Education Fund, Inc., Washington, D.C., for Plaintiffs/Appellants Rowan Fowler, Allister Hall, and Carter Ray. Nicholas J. Hite, Lambda Legal Defense and Education Fund, Inc., Dallas, Texas, for Plaintiffs/Appellants Rowan Fowler, Allister Hall, and Carter Ray. Peter C. Renn, Lambda Legal Defense and Education Fund, Inc., Los Angeles, California, for Plaintiffs/Appellants Rowan Fowler, Allister Hall, and Carter Ray. Karen Keith Wilkins, Tulsa, Oklahoma, for Plaintiffs/Appellants Rowan Fowler, Allister Hall, and Carter Ray. Garry M. Gaskins, II, Zach West, and Cullen D. Sweeney, Office of Attorney General, Oklahoma City, Oklahoma, for Defendants/Appellees J. Kevin Stitt, Governor of the State of Oklahoma, Keith Reed, Commissioner of Health for the Oklahoma State Department of Health, and Kelly Baker, Registrar of Vital Records. ROWE, C.J.: ¶1 The United States Court of Appeals for the Tenth Circuit certified three questions of law to this Court under the Revised Uniform Certification of Questions of Law Act, 20 O.S. §§ 1601-1611. The questions certified are: 1. Whether Okla. Stat. tit. 63, § 1-321 , as amended by Okla. Stat. tit. 63, § 1-321 (H), prohibits changes to the sex designation on an Oklahoma birth certificate. 2. Whether Okla. Stat. tit. 63, § 1-321 has ever permitted changes to the sex designation on an Oklahoma birth certificate. 3. Whether Okla. Stat. tit. 63, § 1-321 does now or has ever permitted changes to the sex designation on an Oklahoma birth certificate based on gender identity. CERTIFIED FACTS AND PROCEDURAL HISTORY ¶2 Rowan Fowler, Allister Hall, and Carter Ray ("Plaintiffs") are three transgender individuals who sought to amend the sex designations on their Oklahoma birth certificates to match their gender identities. Plaintiffs obtained state court orders directing that their sex designations be amended. When Plaintiffs presented these court orders to the Oklahoma State Department of Health ("OSDH"), OSDH denied the applications, citing Executive Order 2021-24, which directed OSDH to stop amending sex designations on birth certificates. The Executive Order reads, in pertinent part: It has come to my attention that the Oklahoma State Department of Health (OSDH) has entered into a settlement agreement which was not reviewed or approved by my Administration. 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. 63 O.S. § 1-321 Therefore, I, J. Kevin Stitt, Governor of the State of Oklahoma, pursuant to the power vested in me by Article VI of the Oklahoma Constitution, hereby order that OSDH immediately: 1. Cease amending birth certificates that is in any way inconsistent with 63 O.S. § 1-321 2. Remove from its website any reference to amending birth certificates that is inconsistent with its authority under 63 O.S. § 1-321 3. Inform the Governor's office of any pending litigation that is related to amending birth certificates in Oklahoma. 4. Provide the Governor's office with any other information that OSDH feels is responsive to this Executive Order. I also encourage our lawmakers, upon reconvening for the 2 nd Regular Session of the 58 th Legislature this coming February to: 1. Immediately pass legislation that will clarify, to the extent necessary, that changes in sex or gender on a birth certificate or a designation of non-binary is contrary to Oklahoma Law. 2. Include in the legislation a provision that requires the Commissioner of Health to promulgate any administrative rules necessary to effectuate the purposes of this statute. Executive Order 2021-2024. ¶3 Plaintiffs brought suit on equal protection and due process grounds against Governor Stitt, OSDH's Commissioner of Health Keith Reed, and Kelly Baker, State Registrar of Vital Records (collectively hereinafter, "Defendants"), in the United States District Court for the Northern District of Oklahoma. Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), ¶4 While certiorari was pending, the Supreme Court decided United States v. Skrmetti , 605 U.S. 495 (2025), holding that a Tennessee law banning certain medical care for transgender minors did not violate the Equal Protection Clause of the Fourteenth Amendment. Id. at 498-99 . The Supreme Court then issued a Grant, Vacate, Remand Order ("GVR") directing the Tenth Circuit to undertake a review of its earlier decision in the present case considering the intervening precedent in Skrmetti . In light of Skrmetti , the Tenth Circuit ordered supplemental briefing from the parties. ¶5 In their supplemental briefing, Defendants argued that, irrespective of Executive Order 2021-24, no Oklahoma statute or regulation has ever permitted amendments to a sex designation on a birth certificate. 63 O.S. § 1-321 63 O.S. § 1-321 63 O.S. § 1-321 63 O.S.Supp.2022, § 1-321 ¶6 We have never addressed whether changes to the sex designation on Oklahoma birth certificates are, or ever were, permitted under Oklahoma law. Although Plaintiffs challenged the constitutionality of Executive Order 2021-24, they did not challenge the constitutionality of 63 O.S. § 1-321 63 O.S. § 1-321 63 O.S. § 1-321 See W. Watersheds Project v. Interior Bd. of Land Appeals , 62 F.4th 1293, 1296 (10th Cir. 2023)( "[T]o establish standing, a plaintiff must show...(iii) that the injury would likely be redressed by judicial relief.")(quoting TransUnion LLC v. Ramirez , 594 U.S. 413, 423 (2023)). ¶7 Since the Tenth Circuit certified the above-stated questions of law to this Court, 63 O.S. § 1-321 63 O.S.Supp.2022, § 1-321 63 O.S.Supp.2026, § 1-321 ¶8 In their additional briefing, Plaintiffs maintain that 63 O.S.2026, 1-321(H) allows "cisgender" th Legislature, in amending § 1-321(H) in 2026 with the passage of H.B. 1225, improperly declared the intent of the 58 th Legislature, th Legislature added subsection (H) REQUIREMENTS FOR ANSWERING CERTIFIED QUESTIONS ¶9 This Court is vested with discretionary authority to review questions of law certified to it by a court of the United States, so long as (1) the answer would be determinative of an issue in pending litigation in the certifying court; and (2) there is no established and controlling law on the subject matter. 20 O.S. § 1602 Odom v. Penske Truck Leasing Co. , 2018 OK 23 415 P.3d 521 Gov't. Emps. Ins. Co. v. Quine , 2011 OK 88 264 P.3d 1245 ¶10 Answering all three certified questions would be dispositive of the issues pending, and there is presently no controlling law on the subject matter of all three certified questions. DISCUSSION ¶11 All three of the certified questions present issues of statutory interpretation. "The primary goal of statutory construction is to ascertain and follow the intention of the Legislature." Brown v. Claims Mgmt. Res., Inc. , 2017 OK 13 391 P.3d 111 Wylie v. Chesser , 2007 OK 81 173 P.3d 64 City of Tulsa v. State ex rel. Pub. Emps. Rels. Bd. , 1998 OK 92 967 P.2d 1214 City of Bethany v. Pub. Emps. Relations Bd. , 1995 OK 99 904 P.2d 604 TRW/Reda Pump v. Brewington , 1992 OK 31 829 P.2d 15 Berry v. Pub. Emps. Ret. Sys. , 1989 OK 14 768 P.2d 898 Lekan v. P & L Fire Prot. Co. , 1980 OK 56 609 P.2d 1289 Brewington , ¶ 5 , 829 P.2d at 20 . CERTIFIED QUESTION ONE Whether Okla. Stat. tit. 63, § 1-321 , as amended by Okla. Stat. tit. 63, § 1-321 (H), prohibits changes to the sex designation on an Oklahoma birth certificate. ¶12 Section 1-321 is positioned under article 3 of Title 63, which concerns "Vital Statistics." Section 1-321 addresses amendments to a certificate or record. Subsection A of § 1-321 specifically states: "A certificate or record registered under this article may be amended only in accordance with this article and regulations thereunder adopted by the State Commissioner of Health to protect the integrity and accuracy of vital statistics records." (emphasis added). ¶13 This Court is guided by the canon expressio unius est exclusio alterius -- "the expression of one thing is the exclusion of another thing." See Morgan v. State Farm Mut. Auto. Ins. Co., 2021 OK 27 488 P.3d 743 2006 OK 29 139 P.3d 873 1999 OK 53 986 P.2d 1130 ¶14 The language of § 1-321(A) is clear: amendments to birth certificates are limited to those explicitly listed under article 3 or the regulations promulgated by the State Commissioner of Health in Title 310:105-3-3 of the Oklahoma Administrative Code. The Legislature's use of "only in accordance with" conveys exclusion and limitation. See Wykoff v. W. H. Wheeler & Co. , 1913 OK 550 135 P. 399 Sutherland Statutory Construction § 492, for the principle that when a statute prescribes the mode of doing a particular thing, other modes are excluded); Bd. of Comm'rs of Grady Cnty. v. Hammerly , 1921 OK 356 204 P. 445 63 O.S. § 1-321 ¶15 Section 1-321 exclusively provides three circumstances in which a birth certificate may be amended: when a name change is needed (§1-321(C)); to demonstrate paternity of a child born out of wedlock if paternity is not already shown on the birth certificate (§ 1-321(D)); and to change the surname of a child born out of wedlock (§ 1-321(E)). ¶16 In April of 2022, § 1-321 was amended to include subsection (H). The 2022 version of § 1-321(H) provided: "Beginning April 26, 2022, the biological sex designation on a certificate of birth amended under this section shall be either male or female and shall not be nonbinary or any symbol representing a nonbinary designation including but not limited to the letter 'X.'" ¶17 Prior to this 2022 amendment, § 1-321 made no mention of a sex designation. The plain text of 63 O.S.2022, § 1-321 ¶18 In May of 2026, § 1-321(H) was amended by H.B. 1225 to read: "Every certificate of birth amended under this section shall contain an accurate biological sex designation of either male or female, as identified at the time of birth. The biological sex designation shall not be amended to display gender identity, a nonbinary designation, or any symbol representing a nonbinary designation including, but not limited to, the letter 'X'." ¶19 Like the 2022 version, the 2026 version of § 1-321(H) expressly prohibits an amended birth certificate to include anything but a male or female sex designation, but adds 1) that the designation must be identified at the time of birth, and 2) the sex designation may not be amended "to display gender identity, a nonbinary designation, or any symbol representing a nonbinary designation including, but not limited to, the letter 'X'." ¶20 Title 310:105-3-3 of the Oklahoma Administrative Code provides three additional circumstances in which a birth certificate may be amended: (1) the registrant's name may be added to the birth certificate within 12 months of birth if it was left off the certificate; (2) the correction of a name entered erroneously; and (3) other changes may be made to correct "an error or misstatement of fact as to any non-medical information supplied to the State Registrar by the parent(s), facility or attendant." Okla. Admin. Code § 310:105-3-3 (b), (c), (e). We read no provision in Okla. Admin. Code § 310:105-3-3 to allow changing the sex designation on a birth certificate. ¶21 Because § 1-321(A) restricts the scope of permissible changes to those outlined in 63 O.S. § 1-321 63 O.S. §1-321 63 O.S. § 1-321 CERTIFIED QUESTION TWO Whether Okla. Stat. tit. 63, § 1-321 has ever permitted changes to the sex designation on an Oklahoma birth certificate. ¶22 Both parties agree that around 2007, some individuals began obtaining state court orders directing OSDH to amend their birth certificates to match their gender identity. ¶23 The Plaintiffs contend that because OSDH amended birth certificates "based on a multitude of orders issued by Oklahoma state courts" Shellem v. Gruneweld , 2023 OK 26 535 P.3d 1208 Keating v. Edmondson , 2001 OK 110 37 P.3d 882 Id . This principle applies squarely here. No longstanding agency practice can alter the statute's plain text or effectively rewrite what the Legislature enacted. Furthermore, "[w]hen an agency's 'powers are limited by the plain language of the statute,' then the agency's manner, or extent, of performance 'must remain within the bounds of the law,' and the agency has no discretion to act outside the agency's statutory powers." State ex rel. Okla. State Dep't of Health v. Okla. Cnty. Crim. Just. Auth ., 2025 OK 36 571 P.3d 114 Winters v. Governor's Special Comm ., 1967 OK 249 441 P.2d 370 ¶24 At no point in the statute's history were amendments to sex designations permitted. The "only in accordance with" language of 63 O.S. § 1-321 63 O.S. § 1-321 supra . Reenacted portions of an amended statute are deemed to have been law since their original enactment. See World Pub. Co. v. White , 2001 OK 48 32 P.3d 835 CERTIFIED QUESTION THREE Whether Okla. Stat. tit. 63, § 1-321 does now or has ever permitted changes to the sex designation on an Oklahoma birth certificate based on gender identity. ¶25 As discussed in our answer to Certified Question One , 63 O.S. § 1-321 63 O.S. § 1-321 63 O.S. § 1-321 does not now permit changes to the sex designation on a birth certificate based on gender identity. ¶26 Nor has 63 O.S. § 1-321 ever permitted changes to the sex designation on a birth certificate based on gender identity. The 2022 and 2026 versions of 63 O.S. § 1-321 See Polymer Fabricating, 1998 OK 113 980 P.2d 109 CONCLUSION ¶27 In answer to the first question of law certified to this Court by the Tenth Circuit, we find that 63 O.S. § 1-321 63 O.S. § 1-321 63 O.S. § 1-321 CERTIFIED QUESTIONS ANSWERED Rowe, C.J., Kuehn, V.C.J., Edmondson, Darby, Kane, and Jett, JJ., concur. Winchester, Combs, J. (by separate writing), and Gurich, JJ., dissent. FOOTNOTES Fed. R. Civ. P. 12(b)(6), "Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: . . . (6) failure to state a claim upon which relief can be granted . . . .". Id . at 10. Id. at 6-10. See Wykoff v. W. H. Wheeler & Co. , 1913 OK 550 135 P. 399 infra (quoting 2 Lewis' Sutherland Statutory Construction § 492). 63 O.S.Supp.2026, § 1-321 Id. COMBS, J., with whom WINCHESTER, J., joins, dissenting: ¶1 I respectfully dissent. One year ago, in Black Emergency Response Team v. Drummond , 2025 OK 44 571 P.3d 135 Black Emergency Response Team , 2025 OK 44 571 P.3d 135 ¶2 The Court's authority to answer certified questions is discretionary, not obligatory. The Revised Uniform Certification of Questions of Law Act, 20 O.S. 2026 , §§ 1601--1611, provides that this Court " may answer a question of law certified to it by a court of the United States . . . if the answer may be determinative of an issue in pending litigation in the certifying court and there is no controlling decision" of this State. 20 O.S.2026, § 1602 may answer, but whether we should . In Black Emergency Response Team , applying the same Act, we held that we should not. Black Emergency Response Team , 2025 OK 44 ¶3 Certification of a question presupposes an ambiguity that a state answer could resolve, but the majority concludes there is none. The premise of certification is that "an interpretation of state statutory law can potentially eliminate the need to address a federal question," and "[i]nherent in this concept is the premise that there is some ambiguity in the state statute, which could lead a state court to interpret it in a way that avoids or modifies the ultimate constitutional issue." Id . ¶ 21, 571 P.3d at 141. Where the task "is one of reading and interpreting statutory language as written," and "is essentially unaided by state court decisions," the certifying federal court can and should perform it, for "[f]ederal courts bear a duty to decide questions of state law when necessary to render a judgment." Id . ¶ 23, 571 P.3d at 142. By its own account, the majority confronts no ambiguity at all. It finds that "[t]he language of § 1-321(A) is clear," Majority Op. ¶ 14, resolves question one through canons available to any court, and reasons that because the statute enumerates the permissible amendments and does not mention a sex-designation change, none is authorized. Majority Op. ¶¶ 14, 25. Whatever the merits of that reading, it is not one that required this Court's intervention. The Tenth Circuit is fully equipped to apply Oklahoma's ordinary tools of statutory construction, as it must when it interprets a state law "as the state's supreme court would, using that state's approach to statutory interpretation." Black Emergency Response Team v. Drummond , No. 24-6139, 2026 WL 2654160 , at *8 (10th Cir. Sept. 9, 2026). ¶4 The questions certified here can be answered by reading the statute the Legislature wrote. Faithful to the restraint this Court exercised in Black Emergency Response Team , 2025 OK 44 571 P.3d 135 20 O.S.2026, § 1602