Update, 2/18: Colorado changed these rules at a Board of Health meeting Wednesday.
Abigail McKinnon was 27 years old the first time she entered a hospital. She had just given birth to her daughter at home in Georgia and needed stitches.
McKinnon gave birth at home because she could not get health insurance to see an OB-GYN as her pregnancy progressed. She could not get a job to help her husband support their child. She could not even legally marry her husband.
McKinnon could not do any of this because, despite being born in the United States, she didn’t have a Social Security number. To get one of those, she would need a birth certificate. And in her case, she would need it from a state where she could not even remember living: Colorado.
When she was born, her parents believed registering their children for any form of government identification to be a form of slavery, a “mark of the beast,” as McKinnon recalled them saying.
She has been trying, unsuccessfully, to rectify her parents’ decision for half her life.
Now, McKinnon’s case may help change Colorado’s rules for obtaining a delayed birth certificate — rules that are currently among the most restrictive in the country.
Stateless
Despite the informal nature of her marriage, McKinnon has taken her husband’s last name. She maintains she was born Abigail Colon in Woodland Park on Dec. 8, 1994.
She has no official documentation of the birth or her early life. Her family moved to Tennessee when she was about two years old. She and her siblings were homeschooled to some degree. They did not go to doctors or dentists.
McKinnon did not begin to comprehend the magnitude of her situation until she applied for a driver’s license at 16. She hoped to start driving to high school for a more proper education, to eventually join the military and go into medicine. However, she didn’t have the needed identification to apply for a driver's license. As far as the government was concerned, there was no record of her existence at all.
“I didn’t have my paperwork. I tried applying for online courses and I was denied because I didn’t have any proof of identification,” McKinnon said. “That really hindered me from being completely independent.”
McKinnon is a stateless person; someone who is not recognized as a citizen of any nation.
Michigan-based immigration attorney Betsy Fisher has been researching and writing about statelessness for years, first in the Middle East before turning her attention to the United States.
In the U.S., her work often focuses on immigrants entering the country who have no record of their original citizenship. But, it has also involved Americans like McKinnon — people who came into the world here and who, through no fault of their own, did not have their birth or early life officially documented.
It is possible for these individuals to obtain a “delayed birth certificate” long after their birth, but the rules for doing so vary widely by state.
Fisher said Colorado’s rules are not unusually difficult — so long as an attempt is made within the first few years of a child’s life to get the documentation.
In order for someone to register for a birth certificate in Colorado after the child is greater than 1 year old, the applicant needs to submit a minimum of two independent documents proving the applicant’s date and location of birth, full name, as well as the names of the parents. These documents can come from census, hospital, military or school records. At least one of the official records must come from the child’s first 10 years of life.
A handful of other states have similar early life requirements, but provide opportunities for exceptions to those, according to McKinnon’s attorneys.
However, in the rare Colorado case that the applicant has no documentation during the first decade of their life, it’s not just burdensome to obtain a delayed birth certificate. It’s impossible.
“That is extremely unusual, and it's extremely harsh,” Fisher said. “If you just don't have that — and no one's responsible for generating their own documentation when they're 10 years old — then there is no pathway under Colorado law to get a birth certificate to be able to function normally.”
McKinnon is the only one of six siblings born in Colorado and is the only one who has not been able to obtain a delayed birth certificate.
“It would have been a lot easier if I was born in Tennessee,” she said.
The laws in that state were far more lenient for her younger siblings: They needed only sworn affidavits and two official documents from any time at least five years prior to the time of application, even if those documents date well after the first 10 years of life. With documents like baptism certificates from 2016 and their father’s affidavit, her siblings obtained official identification within months.
Litigation
McKinnon’s applications to CDPHE for a delayed Colorado birth certificate were denied multiple times over the course of years before the nonprofit Colorado Legal Services agreed to represent her in 2023. The firm specializes in delayed birth certificates and has helped 47 clients obtain them since 2020.
Casey Sherman is a CLS attorney representing McKinnon in a lawsuit against CDPHE. She argues not having a birth certificate prevents McKinnon from exercising fundamental rights guaranteed in the U.S. Constitution.
“Ms. Colon cannot enjoy her constitutional guarantees of life, liberty and property, to exercise her fundamental rights to vote, travel freely, marry, parent, and own firearms,” Sherman wrote in a Denver District Court filing from January 2024.
“She has even less recourse than an undocumented person,” the filing states. “An undocumented person may have a path to lawful status and even citizenship through the Department of Homeland Security (DHS), but if the Department’s denial stands, Ms. Colon has no other opportunity whatsoever to document the rights granted by her citizenship. She will be stateless for the rest of her life.”
Then, in January of this year — days before oral arguments were scheduled before the state court of appeals in McKinnon’s case — the parties filed a Joint Motion to Stay, pausing the case. CDPHE had proposed changes to the state’s delayed birth certificate rules in December.
CDPHE Chief Medical Officer Dr. Ned Calonge said crafting those rules is tricky. The state has to weigh the interest of recognizing people legally born against the state’s interest in preventing fraud. He said the state had been looking at adjusting the state’s rules before the lawsuit and that McKinnon’s case helped inform their proposal.
“This individual situation brought up additional concerns that made us think that this might be a good time to look at other ways of approaching it that would give us a good balance,” Calonge said.
The proposed alteration to the rules would remove the requirement of a person providing one document from their first 10 years of life and replace it with a requirement that they provide one document created at least 10 years prior to the date of application.
“Which is a requirement that Abigail can satisfy,” Sherman said. “If the rule as drafted is what's actually implemented, we're pretty confident that Abigail will finally be able to get a birth certificate.”
The Colorado Board of Health will vote on the proposed rule change during its Feb. 18 meeting.
What success looks like
Kelley Wright spent much of her life stateless as well. Born via midwife in 1987 in Loveland, her parents moved to Wheatland, Wyoming, days later, and registered her birth in that state.
Wright described her father as an abusive alcoholic who later burned her Wyoming birth certificate. When she and her mother pursued a replacement, she said her mother signed an affidavit admitting Wright was born in Colorado. That voided her registered Wyoming birth and touched off her struggle for citizenship.
She had managed to obtain driver’s licenses from South Dakota and Wyoming with a photocopy of that original birth certificate. But, living back in Colorado in 2019 with those licenses expired, she did not have the documentation to renew in Colorado. Wright began driving unlicensed to landscaping jobs where she worked unregistered.
“It started to become a big problem,” Wright said. “I’m not going to lie. I felt hopeless.”
While living at the Fort Collins Rescue Mission, she was told about Colorado Legal Services and their focus on delayed birth certificates. Working with the firm, the process took years. Through copies of school records and affidavits from family, she painstakingly fulfilled the requirements and was issued a delayed birth certificate by the state of Colorado in 2023.
“I cried,” Wright said. “The relief. The gratitude. The hope. I could finally see a light.”
The certificate enabled Wright to get a Colorado driver’s license. She went to cosmetology school. Today, she is a manager at a Dollar Tree.
“I could start really doing things with my life,” she said.
Fallen through the cracks
As McKinnon waits for the rule change and the resolution to her lawsuit, she has only ever been able to work unregistered jobs as a maid or in landscaping and construction. She has never been on an airplane. She has never paid taxes.
Sherman, McKinnon’s attorney, said the stay on her lawsuit against CDPHE lasts until May 31. If the board of health approves the proposed change to delayed birth certificate rules this month and McKinnon is able to progress toward having her own birth recognized, Sherman said they would file to dismiss the lawsuit against the state.
Sherman said while McKinnon’s case presents a rare combination of circumstances, she’s not the only one in her position. Sherman has five other clients in similar situations.
Sherman said she hopes resolution of McKinnon’s case will eventually help them, but that they will have to wait.
“Unfortunately, this rule change won't go far enough to help them,” she said.
Editor's note: This story has been corrected to reflect the correct number of documents required in Colorado to obtain a delayed birth certificate.
