Health Care

‘Nonbinary’ settlement draws strong pushback from Stitt

October 21, 2021

Ray Carter

A reported court settlement agreed to by officials at the Oklahoma State Department of Health (OSDH), which created a process for designating an individual’s sex as “nonbinary” on Oklahoma birth certificates, has drawn swift condemnation from Gov. Kevin Stitt and other officials, along with promises to undo the agreement.

“I believe that people are created by God to be male or female. Period,” Stitt said. “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.

“I will be taking whatever action necessary to protect Oklahoma values and our way of life,” Stitt concluded.

The settlement agreement was first reported by NonDoc, an online news site. Oregon resident Kit Lorelied—who goes by the pronouns “they,” “them,” and “their”—sued Oklahoma in federal court. According to NonDoc, under a settlement agreement between OSDH and Lorelied, the state agreed to allow for nonbinary sex designation.

House Republican leaders said OSDH violated Oklahoma law when it settled the lawsuit. As a result, House Speaker Pro Tempore Terry O'Donnell, a Catoosa Republican and attorney, said the settlement “is not a valid agreement.”

Title 74, Section 20f of Oklahoma law 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.”

The law says the Senate president pro tempore, House speaker, and governor “shall be given a reasonable time in which to make recommendations regarding the proposed settlement” for the executive branch agency and attorney general to consider before finalizing a settlement agreement.

“My office was never approached about this matter,” said House Speaker Charles McCall, R-Atoka. “The agreement is invalid and unenforceable.”

“A settlement like this cannot be made solely by unelected executive branch agency employees because of the clearly substantial impact on the agency,” O'Donnell said.

McCall urged Stitt to issue an executive order addressing the issue.

Oklahoma Senate President Pro Tempore Greg Treat, R-Oklahoma City, expressed similar views.

“The authority to institute policy changes of this magnitude rightly belongs within the legislative branch, the branch of government closest to the people,” Treat said. “Executive branch agencies should not attempt to legislate or make substantive policy changes like this through rulemaking or court settlement. This is an egregious example of executive overreach that should be corrected as soon as possible.”

While legislative leaders voiced support for Stitt’s promise to address the OSDH’s action, the governor drew criticism from a Democratic leader.

“This morning, the governor used his pulpit to attack Oklahomans. Period,” said House Minority Leader Emily Virgin, D-Norman. “A national study estimated that 52 percent of transgender and non-binary young people in the United States seriously contemplated suicide last year. The governor’s suggestion that non-binary 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.”

Sen. Micheal Bergstrom, R-Adair, has already filed Senate Bill 1100, which would require male and female to be the only options on birth certificates to identify a child’s sex at birth.

“I was assured by the State Department of Health a couple months ago that they had no intention of adding another sex option to birth certificates, but they recently approved a non-binary option,” Bergstrom said. “We’re at an odd time in history where people are seemingly forgetting science and biology and casting common sense out the window. When babies are born, they are either born male or female based on their chromosomes and genitals. Allowing anything else to be listed on a birth certificate is ludicrous, and it’s time we clarify this in our statutes.”