New York Law School

Art Leonard Observations

Posts Tagged ‘birth certificate’

Formalistic Texas Appeals Court Refuses to Issue a Change of “Sexual Designation” for Transgender Petitioner

Posted on: August 16th, 2016 by Art Leonard No Comments

The Texas 14th District Court of Appeals in Houston upheld a trial judge’s denial of a transgender man’s request for a “gender designation change” embodied in a court order on August 2.  In re Rocher, 2016 WL 4131626, 2016 Tex. App. LEXIS 8266.  The court’s ruling turned on the absence of any Texas statute or regulation specifically authorizing courts to grant such requests.

According to the opinion for the three-judge panel by Justice Martha Hill Jamison, the petitioner, “formerly known as Aidyn Rocher,” filed an Original Petition for Change of Name of Adult in the Harris County District Court on January 28, 2015, almost exactly six months before the U.S. Supreme Court issued its marriage equality ruling of Obergefell v. Hodges.  At the time, same-sex marriage was not available in Texas, so a sexual designation would be important for somebody who sought to get married.  The Petition in this case sought not only a legal change of name to Alex Winston Hunter, but also a change of “sexual designation” from female to male.  The petitioner was represented by a lawyer, who is not named in the court’s opinion.

The lawyer presented two prior Texas court opinions to the trial judge to support the request for the change: In re Estate of Araguz, 443 S.W.3d 233 (Tex. App. 2014 – petition for review denied), and In re N.I.V.S., 2015 WL 1120913 (2015).  Then Hunter testified briefly, with all the testimony relating to the name change request, satisfying the requirement that the court make findings about the date and place of birth, the lack of a felony criminal record (felons may not legally change their names in Texas), and evidence that a name change is not being sought to evade creditors.  At the end of the hearing, petitioner’s lawyer pointed out to the court that under the Texas Family Code “proof of an order relating to a sex change could be used to prove identity for purposes of an application for a marriage license.”  At the end of the hearing, the trial judge granted the name change but denied the request for a “change in gender designation,” finding that there was no specific authority under Texas law authorizing a court to make such a change in designation.

Texas, in common with most (but not all) states, has a statutory procedure for changing the gender designation on a birth certificate. The petitioner in this case, however, was born in Pennsylvania, and Texas courts have no authority to order another state to issue a new birth certificate.  Furthermore, Texas law does not authorize issuance of a birth certificate for somebody who was not born in Texas.  The petitioner could try to get a new birth certificate from Pennsylvania, but he argued that this would be unduly burdensome, and that since Texas law does, in a broad sense, recognize the reality of gender transition by allowing such changes on birth certificates, the court should be able to issue such a declaration in the context of a name-change case.

The court discounted the precedential value of the cases that petitioner’s lawyer had presented. In Araguz, the court was dealing with a dispute about inheritance rights of a transgender woman who had married a Texas man, and the court of appeals had concluded, citing a Texas statute authorizing county clerks to accept a copy of a “court order relating to the applicant’s name change or sex change” in processing a marriage license application, that “Texas law recognizes that an individual who has had a ‘sex change’ is eligible to marry a person of the opposite sex.”  But, wrote Justice Jamison, “The Araguz court did not, however, suggest that the section authorized a trial court to order a change in a person’s gender designation.”  In the other case, N.I.V.S., although the court of appeals had noted that “one of the parties had ‘obtained a court order changing his identity from female to male,’” citing the same section of the marriage statute, the court in that case had stated, “because it is not necessary to the disposition of this appeal, we do not comment on the effect, if any, of such an order.”

Thus, although some past Texas court opinions had intimated that court might, or actually had, issued orders recognizing changes of sex designation, this court found that none of those cases directly answered the question whether a Texas court has authority to do such a thing, and this panel of judges was unwilling to take that step without some direct prior precedent or statutory authorization.

The petitioner had also argued on appeal that in light of Obergefell, it would be unconstitutional for the courts of Texas to refuse to issue such an order if presented with appropriate evidence.  Unfortunately, however, the trial hearing took place before Obergefell, so this claim had not been presented to the trial court, and appeals courts generally refuse to consider arguments that were not raised at trial and thus “preserved” for review.  A good argument can be made that the Supreme Court’s commentary in that case, and in the prior cases of Lawrence v. Texas and United States v. Windsor, would support a claim that the liberty protected by the Due Process Clause of the 14th Amendment would include a right of self-determination in matters of gender identity, as a matter of respect for individual dignity.  But this court ruled out any consideration of that argument.

Indeed, in a footnote the court also stated that because it had found lacking any authority to issue such an order, it “need not in this case take any position regarding what type of evidence could suffice to demonstrate a gender change.” This is a much-contested issue in other jurisdictions, especially focusing on whether and the degree to which a transgender person must undergo surgical alteration before they can claim to have transitioned sufficiently to change their sex for legal purposes.

Of course, after Obergefell it is unnecessary for a transgender person to get a legal designation of sex in order to marry the person with whom they are in love, because the gender of the parties has been rendered irrelevant.  But sex still matters for other purposes, and particularly for legal identification documents such as driver’s licenses and voter identification card for non-drivers, so the unavailability of a mechanism in Texas for transgender residents born in other jurisdictions to obtain such a declaration from a Texas court is another unnecessary stumbling block to getting on with one’s life.

Many years ago, a more empathetic court, the Maryland Court of Appeals, ruled in In re Heilig (2003) that a Maryland trial court could draw upon its general equitable powers to declare a change of sex designation for a transgender applicant who was born, coincidentally, in Pennsylvania.  And, interestingly, as of August 8, 2016, new regulations in Pennsylvania allow a transgender person born in that state to obtain a new birth certificate by providing certain documentation to the Health Department, including a declaration under oath by a doctor that the individual has received appropriate clinical treatment to be considered male or female, as the case may be, without getting into specifics.  The necessary information is easily available on several websites.  So the petitioner in this case can download the necessary forms and obtain a new birth certificate from Pennsylvania with minimal expense and fuss.  Unfortunately, not every state is so accommodating, and some still refuse to issue new birth certificates for this purpose.

Iowa Supreme Court Rules for Lesbian Couple in Birth Certificate Dispute

Posted on: May 6th, 2013 by Art Leonard No Comments

The Iowa Supreme Court ruled on May 3 that a state law providing that the husband of a married woman who gives birth to a child is the presumptive father is unconstitutional to the extent that it doesn’t also provide such a presumption of parentage for married lesbian couples.  Although the court rejected a lower court ruling interpreting the statute to lead to such a result, the court affirmed the lower court using its alternative constitutional ruling.  The ruling in Gartner v. Iowa Department of Public Health also evidences the changes in the court due to the defeat of three members in a retention election the year after the court ruled in favor of same-sex marriage.

Melissa and Heather Gartner have been a couple since December 2003.  They held a commitment ceremony in 2006 and decided to have children together, with Heather becoming pregnant through anonymous donor insemination.  When their child was born, they went through a second-parent adoption ceremony, obtaining a substitute birth certificate showing both women as parents of the child. 

After Heather became pregnant a second time using the same anonymous donor, the unanimous Iowa Supreme Court ruled in Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009), that same-sex couples are entitled to marry.  Shortly thereafter but before their second child was born, Melissa and Heather were married.  After the birth of their child, they applied for a birth certificate showing both women as parents, on the assumption that a child born to a married woman would also be deemed the child of the mother’s spouse.  But the State Health Department issued a certificate listing only one parent, Heather, and the Department insisted that if Melissa wanted to be listed on the birth certificate, she would have to go through an adoption proceeding.

Polk County District Judge Eliza J. Ovrom ruled in favor of the Gartners’ claim that both women should be listed on the birth certificate, construing state law to require it.  She was interpreting Iowa Code sec. 144.13(2), which provide that if a “mother was married at the time of conception, birth, or at any time during the period between conception and birth, the name of the husband shall be entered on the certificate as the father of the child unless paternity has been determined otherwise by a court of competent jurisdiction, in which case the name of the father as determined by the court shall be entered by the department.”  Relying on another statute that provides that state laws should be interpreted as applying to both men and women when only one gender was used in the statute, and in light of the Iowa Supreme Court’s ruling that same-sex couples were entitled to the same marital rights as different-sex couples, Judge Ovrom found that the statute should be construed in a gender neutral manner, requiring the listing of the birth mother’s spouse regardless of sex.  The state appealed.

Writing for the Supreme Court, Justice David Wiggins found that the trial court’s interpretation was inconsistent with the statutory language and the law.  While the Iowa Code does provide for gender neutral interpretation when a statute refers to a particular gender, he found, this principle of gender neutral interpretation is not used when a statute refers to both genders.  The parental presumption statute refers to both the mother and the father, each having a distinct role, so Justice Wiggins asserted that these nouns could not be given gender-neutral meanings in construing the statute.

Thus, the Supreme Court needed to address an issue that the trial court had avoided: whether the statute is constitutional.  And the court found that it was not, applying a straightforward equal protection analysis.  Noting that the state was not asking the court to reconsider its same-sex marriage decision in this case, Justice Wiggins noted that in Varnum the court had ruled that cases of discrimination on account of sexual orientation are subject to heightened scrutiny under Iowa’s constitution.  This put the burden on the state “to show the statutory classification is substantially related to an important governmental objective,” because the statute was treating like classes differently.  Under the statute, when a married woman bears a child through anonymous donor insemination, her husband is listed as the father on the birth certificate, but her wife is not listed as the mother.  (Indeed, the parents are not required by law to disclose to the state that whether the husband is the biological father of the child, as the statute is indifferent to this  unless the biological father comes forward to rebut the presumption.)  Married lesbians and married heterosexual women who become pregnant through donor insemination are similarly situated, as are their spouses.

The state argued some purported state interests to justify differential treatment, but the court made mincemeat out of them.  The state’s three “interests” were “accuracy of birth certificates, efficiency and effectiveness of government administration, and the determination of paternity.” 

As to the first, the court pointed out that the current system “does not always accurately identify the biological father,” since a married woman who becomes pregnant through donor insemination has no obligation to reveal that fact to the state.  Her husband is presumed to be the father and will be listed as such.  “In that situation,” wrote Wiggins, “the Department is not aware the couple conceived the child by an anonymous sperm donor.”  Requiring a lesbian mother’s spouse to adopt does not provide for any more accuracy on birth certificates in terms of identifying the child’s lawful parents.

Turning to the issue of administrative efficiency and effectiveness, the court opined that requiring married lesbian co-parents to go through adoption procedures is less efficient, not more efficient, than just automatically listing the legal spouse on the certificate.  As to the part of the provision involving rebuttal of the presumption, the court wrote that it is rare for a sperm donor to come forward to rebut the presumption of paternity, and of course it never happens with anonymous donors, who are not informed about the use of their sperm.

As to establishing paternity, the court said, “When a lesbian couple is married, it is just as important to establish who is financially responsible for the child and the legal rights of the nonbirthing spouse.  It is important for our laws to recognize that married lesbian couples who have children enjoy the same benefits and burdens as married opposite-sex couples who have children.  By naming the nonbirthing spouse on the birth certificate of a married lesbian couple’s child, the child is ensured support from that parent and the parent establishes fundamental legal rights at the moment of birth.  Therefore, the only explanation for not listing the nonbirthing lesbian spouse on the birth certificate is stereotype or prejudice.”  Indeed, the term “stereotype or prejudice” occurred several times in the opinion, as the court concluded that each of the state’s proffered reasons fails and the Department’s refusal to list Melissa on the birth certificate was due to “stereotype or prejudice.”

The trial court had ordered the Department to issue the requested birth certificate to the Gartners, but had stayed its order regarding any other lesbian couples.  In affirming the trial court on constitutional grounds, the court also lifted that stay.

Although there was no dissent, the three justices who were appointed in 2011 in place of the three who were denied retention by the voters in 2010 did not join the court’s opinion.  One was noted as not participating in this case.  The other two, in a brief “special concurrence,” observing that the state “accepts the decision in Varnum v. Brien for purposes of this appeal,” agreed that “if Varnum is the law, then Iowa Code section 144.13(2) cannot be constitutionally applied to deny Melissa Gartner’s request to be listed as parent on the birth certificate of the child delivered by her same-sex spouse.”  Not to put too fine a point on it, these justices are leery about appearing to accept the validity of the Varnum decision, although the successful retention last fall of another member of the Varnum majority should have put their fears to rest.

Lambda Legal represents the Gartners in their quest for a proper birth certificate for their second child, with attorneys from Lambda’s Chicago office, Camilla B. Taylor and Kenneth D. Upton, Jr., joined by local counsel Sharon K. Malheiro of Davis, Brown, Koehn, Shors & Roberts P.C. of Des Moines.  Amicus support came from the National Association of Social Workers, Iowa Chapter, the ACLU, and an amicus on behalf of family law professors by attorneys from National Center for Lesbian Rights.  Of course, the anti-gay Iowa Family Policy Center weighted in on behalf of the Department of Public Health.