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In the U.S., state laws can require that someone present some document or information in order to do something. This can be the current version of the thing, or a past version, or, potentially, even the original version.

State laws can also act retroactively,1 making it so that a state of affairs created by the law has, from a legal perspective, existed ever since some date prior to when the law actually took effect.

What happens when one law requires someone to present a past version of something, but another (or even the same) law has retconned that past version out of existence?

As an example, let us imagine the following situation (and assume that all mentioned laws pass state-constitutional muster):2

  1. The U.S. state of Alephistan, governed by the Sodium Party, passes a law to allow trans Alephistanis to change the sex marker on their birth certificates. This law also specifies that sex-marker changes made under this law will be retroactive to the date and time of the person's birth; legally, therefore, an Alephistani who changes the sex marker on their birth certificate has always been the gender corresponding to the updated marker (i.e., a sex-marker change made under this law legally changes the person's AGAB3).
  2. Across the border, the U.S. state of Betaland, governed by the Chlorine Party, instead decides to make it so that trans Betalanders can never update the sex marker on their birth certificates, and also requires that the sex marker on Betaland state IDs correspond to the holder's AGAB. For the latter purpose, it requires Betalanders to present their original birth certificates, minus any later updates, when getting their first state IDs.
  3. Brenda was born and raised in Alephistan. When she popped out of her parent's vagina, the doctor assigned her as male, but, in her late teens, she realizes that she's actually a girl. She changes the sex marker on her Alephistani birth certificate from M to F, which, due to the retroactive nature of the law, makes it so that, legally, the sex marker on her birth certificate has always been F.
  4. Brenda later moves to Betaland and wants to get a Betaland state ID. Under Betaland law, this requires her to present her original Alephistani birth certificate, exactly as it was issued when she was born, before any later updates - and especially before the retroactive change of her birth certificate's sex marker from M to F. However, under Alephistani law, the retroactive nature of the sex-marker change means that the version with the updated sex marker is the original version, and her birth certificate's sex marker has always been F.
  5. Which sex marker will end up on Brenda's Betaland ID card?
  6. In another nearby U.S. state, Seetania, the legislature, split half-and-half, is somewhat indecisive in its course of action. When their law on birth certificates, state IDs, and sex markers is signed into law by the governor, it contains a clause requiring that the sex marker on Seetanian state IDs correspond to the holder's AGAB, as shown on the holder's original birth certificate prior to any later changes (courtesy of the ruling Chlorines), but also, in the same law, a clause making sex-marker changes on Seetanian birth certificates retroactive to the moment of birth (courtesy of an amendment inserted by the Sodium opposition).
  7. Daniel was born and raised in Seetania. When he popped out of his parent's vagina, the doctor assigned him as female, but, in his late teens, he realizes that he's actually a boy. He changes the sex marker on his Seetanian birth certificate from F to M, which, due to the retroactive nature of the law, makes it so that, legally, the sex marker on his birth certificate has always been M.
  8. In his early twenties, Daniel wants to get his first Seetanian state ID. Under Seetanian law, this requires him to present his original Seetanian birth certificate, exactly as it was issued when he was born, before any later updates - and especially before the retroactive change of his birth certificate's sex marker from F to M. However, the very same law also provides that the retroactive nature of the sex-marker change means that the version with the updated sex marker is the original version, and his birth certificate's sex marker has always been M.
  9. Which sex marker will end up on Daniel's Seetanian ID card?

1: Subject to the requirement that they not impose punishment for anything anyone did prior to the law taking effect, as doing so would run afoul of the U.S. Constitution's prohibition of ex post facto laws.

2: I've chosen this particular situation because this was the context in which I originally thought of this question, and also because it could, quite possibly, actually happen in the near future. Nevertheless, this question is of much-more-general applicability, and should not be regarded as limited to the specific situation described.

3: Assigned gender at birth.

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  • I don't think laws can actually change the past. They can specify that other laws treat it as if they had always been male, but it's still true that it was changed after the fact. And Betaland is probably entitled to that knowledge, since they don't have the same "as if" regulations.
    – Barmar
    Commented May 6 at 21:21
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    The examples are limited to changing birth certificates in transgender cases, and the question would be improved by limiting its scope to that. In general, common law countries like the United States rarely have legal questions that can be answered at broad levels of generality, where general rules simply do not exist. Common law countries tend to have rules that are bound to quite specific fact patterns.
    – ohwilleke
    Commented May 6 at 21:49
  • @Barmar: maybe make an answer out of that?
    – Vikki
    Commented May 8 at 3:36
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    @ohwilleke: There is, for once, one of those rare underlying broad general questions here, tho. "If state law A requires the original version, or a past version, of Thing 1, and state law B (or another portion of state law A) retcons said original/past version out of existence, is state law A satisfied by providing the retconned version, or the version that replaced the retconned version?"
    – Vikki
    Commented May 8 at 3:41
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    @Vikki There isn't an answer to a question posed so broadly.
    – ohwilleke
    Commented May 8 at 18:07

1 Answer 1

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Full Faith and Credit

The US Constitution requires that states accept “the public Acts, Records, and judicial Proceedings of every other State.”

So, if under Alephistan law, the original birth certificate can be amended, Betaland has to accept the amended certificate as original.

Statutory Interpretation

This will be an administrative decision by the licensing authority. It may be a matter of policy or it may allow discretion on a case by case basis. The administration is in a difficult position because it seems that whatever they do, they will be in breach of the law. Tough. Their job is to interpret and implement the law as best they can.

In Daniel is not happy with the administration’s decision, he can seek judicial review. The courts will have to determine what the law means and resolve the ambiguity. Is that easy? No. Tough. That’s their job.

Once a court weighs in, that will set a precedent that the administration will have to follow going forward. The precedent will be limited to the particulars of Daniel’s case. Other cases with different facts may or may not fall within the scope of the precedent. For example, does the ruling cover people who transition in the other direction? I don’t know, it’s a hypothetical judgement that doesn’t exist.

That said, the normal rules of tutors interpretation is that if a latter law directly contradicts an earlier law, the latter law wins because, obviously, by passing this law, the legislature meant to change the law.

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  • This is why, before same-sex marriage became the law of the land, but was legislated at the state level, such a marriage would not be nullified if the couple moved to a state that doesn't recognize it. Right?
    – Barmar
    Commented May 8 at 15:32

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