Finding that enforcing a statutory publication requirement for a transgender name change would result in a dangerous “outing” of the applicants, a three-judge panel of the Indiana Court of Appeals unanimously reversed two rulings by the Tippecanoe Circuit Court on August 10 in In re Name Changes of A.L. and L.S., 2017 Ind. App. LEXIS 340, 2017 WL 3429074, holding that the publication requirement should be waived such cases. The court also ruled that the circuit judge erred in requiring publication of an intent to seek a change of gender marker on a birth certificate, which is not specifically required by statute.
An Indiana statute provides that anybody who applies for a name change must publish their intention to do so in a newspaper of general circulation, indicating their existing name and proposed new name. An administrative regulation provides that a court can exercise discretion to waive the requirement if publication would present a risk to the health or safety of the applicant, and to seal the court record to protect the privacy of the individuals involved. The August 10 ruling involves two applicants, identified by the court as A.L. and L.S., both transgender men seeking alteration of their official records.
On May 11, 2016, A.L. filed a petition for a name change, having previously published his intent to do so in a newspaper, and the trial court granted his petition. He had been living as a man for two years at that point, and had undergone “medical procedures in line with his transition,” according to the Court of Appeals opinion by Judge John Baker. At the hearing on his name change, A.L. asked to have his gender marker changed on his birth certificate. The judge instructed him to publish his intent to change his gender marker in a newspaper and scheduled a new hearing on this request. A.L., who had been representing himself up to that point, then obtained a lawyer who filed a “motion to correct error,” arguing that Indiana law did not require such a publication for a gender marker change.
At the subsequent hearing, A.L. testified about his reasons for seeking the change and presented evidence of his medical transition, but the court denied his motion because he had not published his intention in a newspaper. The court subsequently ordered A.L. to provide proof of publication before it would issue the requested order.
The judge said that although he found the application to be made in good faith, without any fraudulent intent, and that A.L. had presented evidence that “transgender individuals are disproportionately subject to violence based on their status as transgender individuals,” where A.L. feel short, in the judge’s view, was in failing to show that he “is personally at increased risk for violence (other than as a general member of the transgender community) or that this Petition would lead to an increased risk of violence for the Petitioner.”
The trial judge rejected the idea that there should be “a general rule that would require no notice for an individual seeking to change their legal gender and have their birth certificate amended,” speculating that this could increase the potential for fraud “in that individuals might be able to seek multiple gender changes in attempts to avoid identification by creditors, governmental actors, or other aggrieved parties without those parties having an opportunity to object or even be aware of said changes.” Thus, the judge concluded, it was in the public interest to require publication both of gender identification changes as well as name changes, even though the statute only specifically addressed name changes.
While the trial judge expressed reluctance “to force well-meaning and potentially vulnerable individuals to address intimate and personal issues central to their personal identity in the harsh public light of open court,” he said this was common to anybody who sought “court intervention in the most personal areas of their lives” and noted the judicial preference for court proceedings that are “open” and “transparent” is “well established in American jurisprudence.”
L.S. filed his petition for change of name and gender on September 7, 2016, in the same circuit court, and encountered the same response. L.S. had not arranged for any publication of his intentions, and the trial judge ruled that he could not grant the petition unless L.S. presented proof of publication. According to Judge Baker’s opinion, the trial judge basically repeated the same statements he had made in response to A.L.’s petition.
The two cases were consolidated for appeal, and the Court of Appeals totally rejected the trial judge’s reasoning.
First, the court pointed out that authority to change gender markers on birth certificates stemmed from its own prior ruling in 2014, not from the statute governing name changes. Instead, it had relied on a different statute that authorized the state’s health department to “make additions to or corrections in a certificate of birth on receipt of adequate documentary evidence.” In its 2014 ruling, the court had pointed out that “the vast majority of states” had allowed for corrections to be made to birth certificates, including, by that date, for changes of gender, as part of the “inherent equity power of a court of general jurisdiction.”
As the legislature had not reacted to the 2014 decision by enacting any new requirements, and there was no specific statutory requirement for advance publication in a newspaper of an intention to request a correction to a birth certificate regarding gender, “it was erroneous to create a requirement where none exists.” As far as the Court of Appeals was concerned, when a petitioner establishes that their request is made in good faith and without fraudulent or unlawful purpose, which the trial court had found to be true as to L.S. and A.L., “no further requirements need to be met and the petition should be granted.”
As to the name changes, the court said, the issue was whether the trial court should have waived the statutory publication requirement. “The rule seeks to balance, among other things, the risk of injury to individuals with the promotion of accessibility to court records as well as governmental transparency,” wrote Judge Baker. The judge quoted the published Commentary in the Indiana statute book, which “notes that the rule ‘attempts to balance competing interests and recognizes that unrestricted access to certain information in Court Records could result in an unwarranted invasion of personal privacy or unduly increase the risk of injury to individuals and businesses.” The same considerations govern requests to seal a Court Record. The petitioner must show that leaving the record open to public inspection “will create a significant risk of substantial harm to the requestor” in order to get a judicial waiver.
Judge Baker then summarized the evidence L.S. had presented about violence against transgender people, including the significant percentage who had responded to surveys showing workplace harassment, harassment at school, and physical assaults. L.S. had also testified about a transgender friend who had been brutally assaulted on the street, and about the discrimination he had encountered in seeking a work internship, because the way he was identified on his Social Security card did not “match” how he appeared. L.S. “testified that he believes that if information about his transgender status became public, he would be ‘at great risk of potential harm.’”
The trial judge had considered this evidence credible, but nonetheless denied waiver of the publication requirement or sealing of the record because he found that L.S. had not specifically shown that there was an individualized risk to himself, as opposed to the generalized risk to the transgender community as a whole. The Court of Appeals disagreed with this conclusion.
Baker wrote, “L.S. provided evidence that, as an out member of the transgender community, he would face a significantly higher risk of violence, harassment, and homicide. He has personally witnessed a transgender friend being violently assaulted because of her gender identity. He has personally experienced discrimination in the workplace after a discrepancy between the way he looked and the way he was identified by Social Security outed him as a transgender individual. Publication of his birth name and new name would enable members of the general public to seek him out, placing him at a significant risk of harm. And in today’s day an age, information that is published in a newspaper is likely to be published on the Internet, where it will remain in perpetuity, leaving L.S. at risk for the rest of his life. There was no evidence in opposition to L.S.’s evidence.”
The Court of Appeals found that this evidence was sufficient to establish that “public of notice of his petition for a name change would create a significant risk of substantial harm to him. As a result, the trial court should have granted his requests to seal the record and waive publication” under the administrative rule.
The court sent the case back to the Tippecanoe Circuit Court “with instructions to ensure that the record of this case remains sealed, and for consideration of L.S.’s petition for a name change.” The court also ordered that as to the petitions for gender marker changes on birth certificates for both petitioners, the trial court should “grant both petitions and issue orders” to the health department to “amend both certificates to reflect their male gender.”