Judicial or legislative? COA continues to face gender-marker cases, asks justices to step in

Can a Hoosier change his or her birth certificate to reflect his or her preferred gender marker? Depends on which Court of Appeals of Indiana judge you ask.

Over the past year and half, Indiana’s lower appellate court has grappled with the issue of whether Hoosiers can change their sex on their birth certificates for themselves and/or their children.

Debate has continued to build since the parents of two transgender Allen County children, as well as the parent of a minor from Decatur County, had their petitions denied by trial courts in 2021.

Now, not only are questions being raised about parental rights, but also about whether any transgender Hoosier can make the change to the legal document.

In a consolidated case that has now gone before the COA twice, appellant-petitioner as well as Indiana Attorney General Todd Rokita are calling on the Indiana Supreme Court to take up the issue.

As of IL deadline, the Supreme Court hadn’t yet ruled on the petition for transfer.

Judges ‘fractured in multiple directions’ on issue

In February 2021, the Court of Appeals, on an issue of first impression, ruled that parents have the authority to petition for a gender marker change on their children’s birth certificates, determining the standard to apply to such a petition is whether the proposed change is in the best interests of the child.

The panel was split in the consolidated case of In the Matter of the Change of Gender Identification of A.B.; In the Matter of the Change of Gender Identification of O.S.; In the Matter of the Change of Name and Gender Identification of C.V. (f/k/a V.V.), 20A-MI-1580, but the majority concluded the trial courts had to consider the requests under the best-interests standard.

In the majority opinion, Senior Judge Ezra Friedlander and Judge Nancy Vaidik agreed that the language of Indiana Code § 16-37-2-10(b), and the authority of parents to make decisions about their children’s lives, allowed the parents to file the petitions, reversing the trial courts. I.C. 16-37-2-10 states, “The state department may make additions to or corrections in a certificate of birth on receipt of adequate documentary evidence, including the results of a DNA test … or a paternity affidavit.”

Judge Rudolph Pyle dissented, writing that the majority “shoehorned” In re the Petition for Change of Birth Certificate, 22 N.E.3d 707 (Ind. Ct. App. 2014), and Matter of R.E., 142 N.E.3d 1045 (Ind. Ct. App. 2020), to create a remedy that doesn’t exist in Indiana code.

On remand, the Allen Superior Court again found it couldn’t allow the gender-marker change petitions to move forward because it couldn’t determine if the change was in the best interests of the child.

The case then went back to the Court of Appeals, where a split panel affirmed the denial but acknowledged conflicting precedent.

Judge Robert Altice asked the Indiana justices to take up the issue, writing he “cannot overlook the fact that this court made an improper lane change beginning in 2014, as highlighted by Judge Pyle’s dissent in this case’s first appeal.”

Also in the opinion, concurring in result, Judge L. Mark Bailey opined that the statutory framework to provide relief was absent. Still, he found “ample evidence … that a gender marker change is consistent with the family’s wishes and the child’s best interests as understood by the child’s medical providers.”

In a 17-page dissent, Judge Paul Mathias joined the majority in calling for the Indiana General Assembly to provide guidance but disagreed that Indiana’s judiciary is unable to act.

“Unless and until the General Assembly and Governor create a fair resolution structure, or clearly forbid any change of gender markers on birth certificates for any reason, equity jurisprudence provides the remedy to consider Mother’s request on Child’s behalf,” Mathias wrote.

A petition to transfer to the high court was filed July 14.

In the petition filed by the AG’s office as an intervenor, the state argued the COA has “fractured in multiple directions” over the issue.

Before the Indiana Supreme Court could ruled on the transfer petition filed in IN RE: THE CHANGE OF GENDER OF: O.J.G.S., A Minor, S.G.S., 21A-MI-2096, another COA panel ruled on the issue earlier this month.

On Dec. 6, in the case of In the Matter of: K.G., T.L.J., 22A-MI-502, Court of Appeals Chief Judge Cale Bradford wrote for the majority that gender marker changes for trans children are not covered under state statute.

Pyle and Bailey were both on the K.G. panel, and their opinions in the other cases were referenced in the opinion written by Bradford, which concluded I.C. 16-37-2-10 provides the courts with no authority to grant the requested relief.

For and against

In the state’s intervenor’s brief, the Attorney General’s Office argued only the Indiana Legislature can pass a law allowing such alterations to a birth certificate, and that I.C. 16-37-2-10 requires a person’s “sex” to be recorded, not “gender identity.”

Further, the brief argued, “No statute provides (1) a cause of action for changing the sex recorded on a birth certificate, (2) judicial authority to change the recorded sex in any circumstance, or (3) a standard for evaluating petitions to change that information. Indiana law otherwise provides a right to petition (the Indiana Department of Health) to make ‘additions to or corrections in a certificate of birth’ regarding a ‘paternity’ record, and it provides a cause of action to petition for name changes. But it provides no procedure or standard by which a court or IDOH may change the sex recorded on a birth certificate to reflect a different gender identity.”

In a reply brief, the appellant said Rokita’s office was wrong but that he was right in asking for a transfer.

“Indiana Code section 16-37-2-10 mentions paternity, but its application is not limited to paternity,” the appellant argued. “Section 10(b) opens by stating that ‘[t]he state department may make additions to or corrections in a certificate of birth on receipt of adequate documentary evidence.’ What follows are examples of ‘documentary evidence’ that, if supplied, could warrant an addition or correction: “including the results of a DNA test under subsection (c) or a paternity affidavit executed under section 2.1 of this chapter.’

“… Even if some ambiguity in the statute required resort to canons of construction, the most relevant one would be legislative acquiescence,” the reply brief continued. “Here, the General Assembly has left the Court of Appeals’ holding in Birth Certificate standing for nearly eight years. If it disagreed with that court’s construction, the legislature has had ample opportunity to say something. The State’s brief fails even to acknowledge the General Assembly’s silence.”

Among the amici curiae briefs submitted in favor of the appellant-petitioner are those by Indiana Youth Group, GenderNexus and a pair of doctors from Riley Children’s Hospital.

In the brief from those doctors, Dr. Dennis Fortenberry and Dr. Eric Meininger, they wrote, “Access to birth certificate gender marker changes is … an important aspect of gender dysphoria treatment.” Fortenberry founded the Gender Health Program at Riley, which Meininger now co-directs.

Bigger picture

Megan Stuart of Indiana Legal Services is representing the appellant-petitioner in both the consolidated case and K.G.

Stuart said that having the ability to change a gender marker is important for both adults and kids alike, but especially for children. She also said the research cited in the briefs backs that up.

“… The birth certificate is really important for children in a way that isn’t always for adults,” Stuart said. “I can’t tell you the last time I used or looked at my birth certificate, but for children, you need that birth certificate to enroll in school, you need it if you’re going to a new doctor — it’s what establishes that you’re the child’s legal parent. So it’s used all the time for children, and having the name and gender marker updated on that birth certificate ensures that the child can live their life in the gender that they are.

“… A lot of schools require an updated birth certificate before they will update the name and gender in their school record system,” Stuart continued. “And so not having that done means that, for example, a kid might go to school and be misgendered all day long, and might be called by the wrong name, which can lead to bullying. It can lead to a kid not feeling safe in school and wanting to drop out. And it also can expose them to threats of violence.”

Steve Sanders, an Indiana University Maurer School of Law professor who, among other subjects, teaches family law and is an expert on LBGTQ legal and political issues, said the cases present a larger issue between Indiana’s courts and the Legislature.

Sanders said the best argument in favor of allowing gender marker changes is Mathias’ dissent, which argued that approving gender marker changes can be thought of as part of a court’s inherent equitable powers and is consistent with statements Indiana’s courts have made in the past about judicial duty under common law.

“In my family law class, I teach several opinions where Indiana appellate courts in recent decades have adopted bold, sometimes progressive changes in the law while observing that they are common law courts with the obligation to update law when necessary to assure it serves the needs of a changing society,” Sanders said. “For example, that’s how second-parent adoption for same-sex couples came to Indiana — by decisions of the Court of Appeals. The court did not feel it necessary to wait for the Legislature to act.”

In the alternative, Sanders said Bradford’s opinion in K.G. took a more cautious approach to the relationship between the courts and the Legislature.

“… State courts are part of the state’s larger political structure and are not insulated from politics,” the professor said. “And so it’s possible some judges on the Court of Appeals are more sensitive than others to the fact the General Assembly almost certainly would not approve of what the other panels did in 2014 and 2021.”•