United States Court of Appeals
For the First Circuit
No. 25-1638
ÍNARU NADIA DE LA FUENTE DÍAZ; MARU ROSA HERNÁNDEZ; ANDRÉ RODIL;
YEIVY VÉLEZ BARTOLOMEI; GÉ CASTRO CRUZ; DENI JUSTE,
Plaintiffs, Appellees,
v.
JENNIFFER A. GONZÁLEZ COLÓN, in the official capacity as
Governor of the Commonwealth of Puerto Rico; DR. VÍCTOR RAMOS
OTERO, in the official capacity as Secretary of the Department
of Health of the Commonwealth; WANDA LLOVET DÍAZ, in the
official capacity as the Director of the Division of Demographic
Registry and Vital Statistics of the Commonwealth,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. María Antongiorgi-Jordán, U.S. District Judge]
Before
Barron, Chief Judge,
Lynch and Montecalvo, Circuit Judges.
Omar Andino-Figueroa, Solicitor General of Puerto Rico, with
whom Frank A. Rosado Méndez, Deputy Solicitor General, were on
brief, for appellants.
Raúl R. Labrador, Attorney General of Idaho, Alan M. Hurst,
Solicitor General of Idaho, Michael A. Zarian, Deputy Solicitor
General of Idaho, and Gader Wren, Assistant Solicitor General of
Idaho, on brief for nineteen states and the Arizona Legislature as amici curiae supporting appellants.
Mariola Abreu-Acevedo and MZLS LLC on brief for the Senate of
Puerto Rico as amicus curiae supporting appellants.
Omar Gonzalez-Pagan, with whom Whit Washington, Lambda Legal
Defense and Education Fund, Inc., and Johanna M. Emmanuelli Huertas were on brief, for appellees.
Kara N. Ingelhart and Northwestern Pritzker School of Law on
brief for Waves Ahead Corp., La Federación LGBTQ+ de Puerto Rico, and True Self Foundation as amici curiae supporting appellees.
Fermín L. Arraiza-Navas, Annette Martínez-Orabona, American
Civil Liberties Union Puerto Rico Chapter, Barbara Schwabauer, Jon Davidson, Chase Strangio, and American Civil Liberties Union
Foundation on brief for American Civil Liberties Union and American Civil Liberties Union of Puerto Rico as amici curiae supporting
appellees.
Seran Gee and Advocates for Trans Equality Education Fund on
brief for Advocates for Trans Equality Education Fund, Family
Diversity Projects, Maine Transgender Network Inc., Massachusetts Transgender Political Coalition, and 603 Equality as amici curiae supporting appellees.
Jessica Méndez-Colberg and Consultoras de Estrategias Legales
y Financieras Integrales LLC on brief for Amnesty International
Puerto Rico Section, Inc. as amicus curiae supporting appellees.
September 1, 2026
MONTECALVO, Circuit Judge.1 Ínaru Nadia de la Fuente
Díaz and five other nonbinary persons (collectively, "Plaintiffs")
sued Puerto Rico officials (collectively, "Puerto Rico")2 in the
U.S. District Court for the District of Puerto Rico, alleging that
Puerto Rico's birth certificate format infringed upon their rights
under the Equal Protection and Due Process Clauses of the U.S.
Constitution's Fourteenth Amendment and the First Amendment of the
U.S. Constitution and Puerto Rico Constitution. The parties filed
cross-motions for summary judgment. The district court granted
Plaintiffs' motion for summary judgment, concluding that Puerto
Rico's birth certificate format violated Plaintiffs' rights under
the Equal Protection Clause, and denied Puerto Rico's motion for
summary judgment. For the reasons stated below, we vacate the
district court's order and remand for further proceedings.
1 We thank all amici to this appeal -- nineteen states and
the Arizona Legislature, the Senate of Puerto Rico, Waves Ahead
Corp., La Federación LGBTQ+ de Puerto Rico, True Self Foundation, American Civil Liberties Union, American Civil Liberties Union of Puerto Rico, Advocates for Trans Equality Education Fund, Family
Diversity Projects, Maine Transgender Network Inc., Massachusetts Transgender Political Coalition, 603 Equality, and Amnesty
International Puerto Rico Section, Inc. -- for their briefs.
2 The Complaint named the Governor of Puerto Rico, the
Secretary of the Department of Health of Puerto Rico, and the
Director of the Division of Demographic Registry and Vital
Statistics of Puerto Rico (the "Demographic Registry") in their
official capacities as Defendants. For simplicity, we will refer
to Defendants-Appellants collectively as "Puerto Rico."
- 3 -I.
A.
On July 5, 2023, Plaintiffs, who are nonbinary persons
born in Puerto Rico, wrote to the Executive Director of the
Demographic Registry to request an amendment to the Application
for Gender Change in Vital Event Certification ("Application for
Gender Change"). The Application for Gender Change permits an
applicant to request a new birth certificate in order to reflect
a change in gender. As written, it provides two "gender selection"
options, "[f]emale" or "[m]ale." Plaintiffs requested that the
Application for Gender Change be amended to include an option "X."
Plaintiffs' request followed, and built upon, an earlier
lawsuit that resulted in a new Demographic Registry protocol for
requesting a gender change on a person's birth certificate. In
2018, the U.S. District Court for the District of Puerto Rico, in
Arroyo González v. Rossello Nevares, ordered the Demographic
Registry to permit transgender binary individuals to amend the
gender on their birth certificate "by issuing a new birth
certificate with the applicant's true gender, without using a
strike-out line or otherwise including any information that would
disclose a person's transgender status." 305 F. Supp. 3d 327,
333-34 (D.P.R. 2018) (emphasis omitted). At the time of Arroyo
González, the Demographic Registry permitted transgender
individuals to change their name on their birth certificate while
- 4 -prohibiting them from changing their gender on their birth
certificate. Id. at 328, 333. The district court explained that
this policy forced plaintiffs "to disclose their transgender
status" in violation of their right to privacy. Id. at 333. The
district court determined that the forced disclosure of
plaintiffs' transgender status violated their constitutional right
to decisional and informational privacy. Id. As a result, Puerto
Rico issued a new application form, which is the Application for
Gender Change we discuss here.
Turning back to the present case, on September 8, 2023,
the Director of the Demographic Registry denied Plaintiffs'
request to amend the Application for Gender Change to include an
"X" option. Shortly afterwards, on October 27, 2023, Plaintiffs
filed an initial complaint in this case alleging that Puerto Rico's
birth certificate format infringed upon their rights under the
Fourteenth Amendment of the U.S. Constitution's Equal Protection
and Due Process Clauses and the First Amendment of the U.S.
Constitution and Puerto Rico Constitution.3
Plaintiffs' Complaint alleges that "Puerto Rico's Birth
Certificate Policy facially and intentionally discriminates
Plaintiffs filed an amended complaint on October 30, 2023,
3
and Plaintiffs filed a second amended complaint on November 15,
2023. Like the district court, we refer to the second amended
complaint as the "Complaint."
- 5 -against . . . Plaintiffs" "based on sex-related considerations."4
The Complaint further alleges that Puerto Rico birth certificates
classify based on a person's sex, but that for transgender
nonbinary persons, including Plaintiffs, "this classification
reflects a sex contrary to their true sex, as determined by their
gender identity, causing harm as a result." Plaintiffs seek
declaratory and injunctive relief under 42 U.S.C. § 1983, and
request that the court order Puerto Rico "to permit transgender
nonbinary persons born in Puerto Rico to correct their birth
certificates to accurately reflect their true sex, consistent with
their gender identity," by including an "X" marker. Plaintiffs
also request that the court issue a writ of mandamus and that the
court order Defendants to issue Plaintiffs corrected birth
certificates. Like the district court, we only reach Plaintiffs'
Equal Protection claim, so we focus our discussion on that claim.
In early 2024, Puerto Rico moved to dismiss the
Complaint, and Plaintiffs opposed its motion.5 While the motion
to dismiss was pending, Plaintiffs moved for summary judgment,
which Puerto Rico opposed, and Puerto Rico cross-moved for summary
4 Plaintiffs use the term "Birth Certificate Policy" in their
Complaint, and we do the same. Plaintiffs use the term "Birth Certificate Policy" to describe Puerto Rico's policy of not
permitting transgender individuals to change the gender on their
birth certificates to "X."
5 Plaintiffs also filed a separate motion for a preliminary
injunction, which Puerto Rico opposed, and the district court
denied. Plaintiffs did not appeal that denial.
- 6 -judgment. On September 23, 2024, the district court denied Puerto
Rico's motion to dismiss, and on May 30, 2025, it granted
Plaintiffs' motion for summary judgment and denied Puerto Rico's
cross-motion. We turn now to the district court's summary judgment
order, as it is the subject of this appeal.
B.
In its summary judgment order, the district court held
that Plaintiffs were entitled to relief under the Equal Protection
Clause of the Fourteenth Amendment.6 Explaining that the
Application for Gender Change gives "an option for binary
applicants to choose a gender marker which aligns with their true
gender, but does not provide [such] an option" for "nonbinary
individuals," the district court concluded that Puerto Rico's
"Birth Certificate Policy" creates a classification on its face
between "people with a binary gender identity" and "nonbinary
people." The district court also concluded that it did not need
to decide which level of scrutiny applied to Puerto Rico's Birth
Certificate Policy because it held that the Policy did not survive
the lowest level of scrutiny -- rational scrutiny.
In applying rational basis review, the district court
stated that Puerto Rico, in its view, had proffered only two
6 Recall that the district court only reached Plaintiffs'
claim under the Equal Protection Clause; it did not reach
Plaintiffs' claims under the Due Process Clause or the First
Amendment of the U.S. Constitution and Puerto Rico Constitution.
- 7 -interests supporting its Policy. The district court concluded
that these reasons did not survive rational basis review.
According to the district court, Puerto Rico first argued that
"creating a new gender category, such as 'X,' without legislative
approval undermines the separation of powers." The district court
disagreed, reasoning that courts are responsible for determining
whether laws and policies are unconstitutional (and striking them
down if they are), and that Puerto Rico failed to explain why this
policy would be "uniquely immune to judicial review." Puerto Rico
challenges the district court's conclusion, as does amicus curiae
the Senate of Puerto Rico. Second, Puerto Rico argued that the
government "has an interest in maintaining the integrity of public
records." The district court reasoned that although this is a
legitimate interest, Puerto Rico already has a policy to retain an
individual's original birth certificate when it has been amended,
and Puerto Rico failed to explain why this legitimate interest "is
furthered by treating nonbinary individuals differently than
binary individuals." After considering these two arguments, the
district court made the inference that because it could not
"conceive of any rational basis for the Policy's . . . distinction
between binary and nonbinary individuals," the classification was
"born of animosity" toward nonbinary persons.7 (Quoting in the
Puerto Rico has also argued to us, among other things, that
7
it has "a legitimate interest in maintaining a consistent and
- 8 -second instance Romer v. Evans, 517 U.S. 620, 634 (1996)). Based
on these predicates, it held that the Birth Certificate Policy
failed rational basis review and violated the Equal Protection
Clause of the Fourteenth Amendment. The district court granted
summary judgment for Plaintiffs, denied summary judgment for
Puerto Rico, and ordered Puerto Rico to "promptly amend [its]
Application for Gender Change form to include an option to select
an 'X' as one's gender marker on their birth certificate." The
district court then denied Puerto Rico's motion for
reconsideration. On July 1, 2025, Puerto Rico timely appealed.
Puerto Rico then requested a stay pending appeal, which the court
denied. On July 30, 2025, this court granted Puerto Rico's request
for a stay pending appeal.
II.
We move now to our analysis of the district court's
summary judgment order, which we review de novo, "constru[ing] the
historical definition of sex on its birth certificates" and the
inclusion of Plaintiffs' requested sex marker "would transform
Puerto Rico's birth certificates from objective records of
biological sex into subjective declarations of personal identity." Puerto Rico then contends that this would lead to further claims
from other groups about the Policy. Relatedly, the district
court's opinion, Puerto Rico argues, "would give rise to
significant concerns regarding the workability and administrative ability of the Demographic Registry . . . -- often at substantial cost and in an impracticable manner -- to modify its internal
administrative procedures."
- 9 -evidence in the light most congenial to the nonmovant."8 Wadsworth
v. Nguyen, 129 F.4th 38, 50 (1st Cir. 2025) (citation modified).
We dive into the issues midstream, because, like the district
court, we assume without deciding that the Birth Certificate Policy
is subject to rational basis review. With that framework in mind,
we now consider whether the Birth Certificate Policy withstands
rational basis review.
A.
Under the rational basis standard, government conduct
"is presumed to be valid and will be sustained if the
classification drawn by the statute is rationally related to a
legitimate state interest." City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 440 (1985). The Supreme Court has recently,
in United States v. Skrmetti, 605 U.S. 495 (2025), established the
binding standards for rational basis review in an equal protection
challenge:
We have reconciled the principle of equal
protection with the reality of legislative
classification by holding that, "if a law
neither burdens a fundamental right nor
targets a suspect class, we will uphold the
legislative classification so long as it bears
a rational relation to some legitimate end."
We generally afford such laws "wide latitude"
under this rational basis review,
8"Cross[-]motions [for summary judgment] simply require us
to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed." Anvar v. Dwyer, 82 F.4th 1, 7 (1st Cir. 2023) (quoting Barnes v. Fleet Nat'l Bank,
N.A., 370 F.3d 164, 170 (1st Cir. 2004)).
- 10 -acknowledging that "the Constitution presumes
that even improvident decisions will
eventually be rectified by the democratic
processes."
Id. at 509-10 (first quoting Romer, 517 U.S. at 631; then quoting
Cleburne, 473 U.S. at 440). It went on to hold:
The rational basis inquiry "employs a
relatively relaxed standard reflecting the
Court’s awareness that the drawing of lines
that create distinctions is peculiarly a
legislative task and an unavoidable one."
Under this standard, we will uphold a
statutory classification so long as there is
"any reasonably conceivable state of facts
that could provide a rational basis for the
classification." Where there exist "plausible
reasons" for the relevant government action,
"our inquiry is at an end."
Id. at 522 (first quoting Mass. Bd. of Ret. v. Murgia, 427 U.S.
307, 314 (1976) (per curiam); then quoting FCC v. Beach Commc'ns,
Inc., 508 U.S. 307, 313-14 (1993)). And it explained that:
"[T]he fact the line might have been drawn
differently at some points is a matter for
legislative, rather than judicial,
consideration." R.R. Ret. Bd. v. Fritz, 449
U.S. 166, 179 (1980); see Dandridge v.
Williams, 397 U.S. 471, 485 (1970) ("In the
area of economics and social welfare, a State
does not violate the Equal Protection Clause
merely because the classifications made by its
laws are imperfect."); Lindsley v. Nat.
Carbonic Gas Co., 220 U.S. 61, 78 (1911) ("A
classification having some reasonable basis
does not offend against [the Equal Protection
Clause] merely because it is not made with
mathematical nicety or because in practice it
results in some inequality.").
Id. at 524 (alterations in original).
- 11 -As we have explained, "[t]he question is not what went
on in the mind of the [government] actor but whether anyone,
including the judge, can conceive of a rational reason for such a
classification." McKenna v. Me. Dep't of Health & Hum. Servs.,
152 F.4th 14, 22 (1st Cir. 2025) (first alteration in original)
(quoting Jeneski v. City of Worcester, 476 F.3d 14, 17 (1st Cir.
2007)).
B.
Under this "forgiving" standard, we conclude that Puerto
Rico's Birth Certificate Policy is supported by a rational basis.
See A.C. by Waithe v. McKee, 23 F.4th 37, 46 (1st Cir. 2022)
(quoting Donahue v. City of Boston, 371 F.3d 7, 15-16 (1st Cir.
2004)). Because our rational basis review is not limited to the
arguments Puerto Rico raised, Plaintiffs have failed to carry their
burden to demonstrate that there is not any "fairly conceivable
set of facts that could ground a rational relationship between the
challenged classification and the government's legitimate goals."
Doherty v. Merck & Co., 892 F.3d 493, 500 (1st Cir. 2018) (quoting
Eulitt ex rel. Eulitt v. Me. Dep't of Educ., 386 F.3d 344, 356
(1st Cir. 2004)). We need not reach all of Puerto Rico's arguments
that the policy is supported by many rationales because we conclude
- 12 -that it is supported by a different rationale and, therefore, the
district court erred as a matter of law.
Starting with the challenged classification, we assume
that the Birth Certificate Policy classifies on its face between
transgender people with a binary gender identity and transgender
people with a nonbinary gender identity. With this classification
in mind, we conclude that the Birth Certificate Policy is supported
by a rational basis, contrary to the district court's holding.
Indeed, Plaintiffs' framing of their argument demonstrates why
this is so. Plaintiffs' argument is founded on current Puerto
Rico law, which permits transgender binary people to update the
gender on their birth certificates. See P.R. Laws Ann., tit. 31,
§ 7655. But Puerto Rico law allows this update because it
responded to the Arroyo González holding that the policy in effect
at the time violated transgender binary individuals' privacy
rights. 305 F. Supp. 3d. at 333-34. Unlike the transgender binary
plaintiffs in Arroyo González, Plaintiffs here have not
demonstrated that the Birth Certificate Policy violates
transgender nonbinary Plaintiffs' privacy rights. Rather,
Plaintiffs waived any argument on this front. See Cornwell Ent.,
Inc. v. Anchin, Block & Ankin, LLP, 830 F.3d 18, 32 (1st Cir.
2016). Indeed, at oral argument, Plaintiffs conceded that the
Birth Certificate Policy does not violate the informational
privacy right that Arroyo González contemplated, recognizing that
- 13 -a nonbinary gender marker inherently discloses a person's
nonbinary status. Plaintiffs also fail to develop a separate
argument that Puerto Rico's interest in protecting privacy rights
is not furthered by the Birth Certificate Policy and its challenged
classification between transgender binary people and transgender
nonbinary people. Puerto Rico has a legitimate interest in
protecting the privacy rights of people born in Puerto Rico, and
as Plaintiffs have neither argued nor demonstrated that the Birth
Certificate Policy infringes on their privacy rights or that
privacy rights are not furthered by the Policy, there is a rational
relationship between the challenged classification and this
legitimate interest. It is thus conceivably rational for Puerto
Rico to not update transgender nonbinary people's birth
certificates while updating transgender binary people's birth
certificates.
III.
For the foregoing reasons, we vacate the district
court's order and remand to the district court for further
proceedings consistent with this opinion.
- 14 -