LGBT advocates praise ruling on changing gender marker

A recent Indiana Court of Appeals ruling that determined individuals seeking to legally change the gender markers on their birth certificates don’t have to publish notice of their intent to do so has LGBT rights advocates celebrating what they see as greater legal protection for transgender people.

The decision in the consolidated appeal of In re the Name Change of A.L. and In re the Name Change of L.S., 79A02-1703-MI-473, handed down last month, came after two transgender men’s requests to legally change their gender markers were denied because they did not publish notice of their intent in a local newspaper. The Tippecanoe Circuit Court based its decision on the fact that individuals seeking to legally change their names are statutorily required to publish notice of their intent to do so in a newspaper in the county where the petition was filed. The trial court determined the same statutory procedures should apply to petitions for change of gender marker.

The trial court did find both A.L. and L.S. made their petitions in good faith and without an intent to defraud, a finding that ultimately led to reversal by the COA. The “in good faith” standard was first laid out in the case In re Petition for Change of Birth Certificate, 22 N.E.3d 707 (Ind. Ct. App. 2014), in which the appellate court determined the focus in petitions for gender marker change “should be on whether the petition is made in good faith and not for a fraudulent or unlawful purpose.”

Drawing on Birth Certificate, the judges in the instant case determined the “in good faith” standard is the only one that applies, so the statutory procedures for a name change petition are not applicable. Because both A.L. and L.S. met the “in good faith” standard, the court remanded the cases for their birth certificate gender markers to be changed.

“Unless and until the General Assembly crafts specific requirements regarding gender marker changes, this Court’s common sense standard in Birth Certificate is the bar that must be met,” Judge John Baker wrote in the appellate opinion.

Baird

Theo Ciccarelli Cornetta, the staff attorney with Indiana Legal Services Inc.’s Low-Income LGBT Project who represented A.L. and L.S., said Tippecanoe County was not the only county in the state trying to impose the requirements of a legal name change onto a gender marker change. However, Barbara Baird, an Indianapolis attorney who represents LGBT clients, said other counties chose not to apply the name change statutes to gender marker changes, so there was ambiguity in the rules governing the process.

Baird called the decision “a welcome clarification.”

The decision also provided guidance on the evidentiary standard that must be met for a gender marker change. The facts of the Birth Certificate case related to an individual who had already undergone gender reassignment surgery, but Baird said the decision in A.L. and L.S.’s appeal makes it clear that such measures aren’t required in order to be granted a change under the standard developed in Birth Certificate.

Stronger protections

Malone

Requiring publication of notice of intent to change a gender marker means transgender individuals ran the risk of being “outed” before they wanted to make their transgender status public knowledge, said Kit Malone, ACLU of Indiana transgender education and advocacy coordinator. And in today’s digital world, a notice posted in a newspaper will likely also be posted online, where their transgender status will remain public knowledge forever, Ciccarelli Cornetta said.

Being publicly “outed” can lead to serious repercussions for transgender individuals, including the threat of violence, the ILS attorney said. In fact, both A.L. and L.S. cited potential threats in their arguments against the publication requirement, with L.S. claiming one of his friends was beaten while trying to exit her car after her transgender status became known.

But there are other considerations that create concern among transgender individuals who are asked to publish notice of their intent to change their gender marker. For example, some employers might be inclined to reject a person for a job if they knew the applicant was transgender, a fact that would be much easier to discern if it was published in a newspaper or online, Malone said. L.S. also testified to his experience in that regard, saying he lost an internship opportunity because the gender marker on his Social Security documents did not match his physical appearance.

“That layer of privacy is valuable to us, as well, as just not wanting to live in a situation where our transition or gender identity is a matter of public record,” Malone said.

Broader implications

The court also broached the issue of privacy in another portion of its decision, which related to L.S.’s argument that he should not be required to publish notice of his intent to change his name. Doing so, he argued, would subject him to a higher threat of violence.

The appellate court agreed, citing an exception in Indiana Administrative Rule 9, which holds that documents may be excluded from public access if the requestor demonstrates “(a)ccess or dissemination of the Court Record will create a significant risk of substantial harm to the requestor… .”

Similar to the concerns about online newspaper publications, Baird said the trend toward digital court records puts transgender people at risk of having their status publicly searchable for years to come. The ruling in L.S.’s case provides helpful guidance on when those records can be sealed for the protection of transgender litigants, she said.

That ruling could also have implications outside of the transgender community, Ciccarelli Cornetta said, pointing to the example of domestic violence victims who want to change their names to escape abusers and don’t want knowledge of their name change to become public. Similarly, identity theft victims also may want to change their names in order to protect their finances.

The ruling also could come into play in cases involving juveniles whose parents are seeking to change their child’s birth certificate gender markers, Baird said. Privacy would be a high priority for the young litigants, so having guidance on when to seal records could help protect them, she said. However, Baird noted there is still some ambiguity as to the evidentiary standard that must be met for the Rule 9 exception to apply.

As the national conversation about transgender protections continues, Malone said similar rulings will likely be handed down in other states as more transgender individuals chose to fight against laws they view as discriminatory or unsafe, including the publication requirement — or, as Malone said it is known among the transgender community, the “target on your back” law.

Ciccarelli Cornetta agreed the Court of Appeals’ decision comes at an important time for the country and said the August ruling shows that the legal community in the Hoosier state is beginning to recognize the risks facing transgender people in their everyday lives.•