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Indiana Court of Appeals Divides Three Ways on Gender Marker Change for Transgender Teen

Posted on: September 8th, 2021 by Art Leonard No Comments

In Matter of A.B., 164 N.E.3d 167 (Ind. Ct. App. 2021), decided earlier this year, a divided panel of the Indiana Court of Appeals ruled that a parent’s petition to change the name and gender marker of their transgender minor child could be approved, despite the lack of explicit statutory authority, if the court determined that the change was in the best interest of the child, with Judge Rudolph R. Pyle, III, dissenting on the ground of lack of legislative authority for the court’s action.  On August 30, in In re Change of Name and Gender of H.S., 2021 Ind. App. LEXIS 267, 2021 WL 385266 (Ind. Ct. App.), the same court again split three ways in a case where parents petitioned to change the name and gender marker of a minor, in this case their 15-year-old transgender son.  Affirming a ruling by Allen Superior Court Judge Andrew S. Williams, they held that Judge Williams’s grant of the name change but denial of the gender marker change was not clearly erroneous.  Observing that the legislature had not responded to their earlier ruling by addressing the question of the standard for evaluating such a petition, Judge L. Mark Bailey’s majority opinion found that Judge Williams did not err because the parents did not present sufficient testimony to show that granting the gender marker change in the teen’s birth certificate would be in the best interest of the minor, H.S.

The parents offered in evidence a letter from H.S.’s treating physician stating that H.S.’s sex “has been changed by medical procedure from female to male” and that H.S.’s birth certificate should be changed accordingly.  They also offered a letter from a licensed mental health counselor who stated that H.S. “was initially seen at my office in January of 2020, for issues related to gender identity, and that he “was determined to be exhibiting symptoms consistent with a diagnosis of Gender Dysphoria,” had “presented male at all of his [counseling] sessions,” and “began testosterone therapy in August of 2020” and “shared about his desire to change his name and gender marker,” which the counselor believed to be “important to his overall wellbeing.”  The petition was filed on September 16, 2020, by the Mother under oath, accompanied by a signed parental consent by both Mother and Father.  Judge Williams accepted the letters into evidence, and conducted a hearing on March 4, 2021, at which both parents and H.S. testified.  Judge Williams then ordered that the case be sealed from public access.

On April 16, 2021, Williams issued an Order granting the name change and denying the gender marker change.  He purported to apply the “best interest of the child” analysis as dictated by the Court of Appeals’ decision in Matter of A.B., and focused on “the mental and physical health of the child” as “likely the most significant factor.”  As such, he pointed to “the absence of expert testimony or authenticated documents,” wrote Judge Bailey, quoting Williams’s finding “the lack of competent evidence with regard to this factor to be dispositive.”  Williams found that Mother, the petitioner, failed to establish that it was in the best interest of H.S. to have the gender marker changed.  This seems odd on its face.  H.S. would legally be known by a male name but would have a birth certificate indicating a female sex.

On appeal, Mother argued that the court should presume that when parents petition for a gender marker change for their child, it is in the best interest of the child to grant it, not dependent upon a specific medical intervention.  Judge Bailey disagreed, while noting that no Indiana statute makes expert testimony or medical records a requirement for a gender marker change.  After reviewing the history of the Indiana courts’ treatment of the issue of name and gender marker changes for transgender petitioners, he pointed out that the permissive standard followed for adults does not apply to minors.  “It is necessary to examine the statutory provision for alteration to a birth certificate with the objective of neither invading the legislative domain nor that of a fit parent,” he wrote.  “The generic statutory provision has served as a vehicle with enough flexibility to permit its ready application to the gender marker choice of a competent adult.  Nevertheless, the statutory flexibility applicable to adults has reached a point of inelasticity where the issue concerns children.  And assuming the statute has application when a parent seeks a change of gender marker for a child, its streamlined (essentially unquestioned) application to a child would ignore the State’s interest in the child’s wellbeing.”

“Clearly, the totality of the child’s medical history is highly relevant,” wrote Bailey.  “But here the parents decided to forego expert testimony or the proffer of any relevant medical records, in favor of their conclusory testimony prompted by their teenager’s relatively recent disclosure.  Indeed, the trial court aptly pointed out that there was no authenticated document of any sort admitted into evidence.  Under these circumstances, I cannot say that the trial court misapplied the law.”

Under the logic of Bailey’s decision, despite the lack of any such statutory requirement, parents petitioning for a gender marker change for their child should be prepared to have testimony under oath from the child’s physician and mental health counselors, and to submit medical records in evidence.  This decision does not make a gender marker change unavailable, but it probably makes it considerably more expensive to obtain such an Order.  The parents in this case could go back to square one with a new petition; otherwise, H.S. will have to wait until his majority to file a petition on his own as an adulty, under the more “elastic” standards pertaining.  Unless, of course, this case is appealed and the Indiana Supreme Court adopts the dissenter’s view of the record while approving Matter of A.B.

Judge Pyle concurred in the result, reiterating his dissenting view from Matter of A.B. that the court did not have authority to order a gender marker change for a minor in the absence of legislative authorization to do so.  The biggest risk of an appeal by the Petitioners in this case is that the Indiana Supreme Court might agree with Judge Pyle and overrule Matter of A.B., putting gender marker changes out of reach for minors in Indiana in the absence of legislative action (which one speculates would not be readily forthcoming).  As of the end of August, we found no record of an appeal filed in Matter of A.B., which was decided in February 2021.

Judge Terry A. Crone dissented at length, finding that the evidence introduced by the parents was sufficient to perform the analysis required by Matter of A.B. and to conclude that granting the gender marker change was in the best interest of H.S.  He rejected Judge Bailey’s dismissive characterization of the letters accepted into evidence by H.S.’s physician and counselor, and found that Judge Williams, in passages not acknowledged by Judge Bailey, had indulged in stereotyping and generalizations with no factual support in the record.

“In its order,” wrote Judge Crone, “the trial court was dismissive of fifteen-year-old H.S.’s age, stating that ‘any parent who has raised a teenager is well-aware that their thoughts, opinions, and wishes change rapidly.  Teenagers are full of hormones and emotions which often results in impulsive, short-sighted decisions.  At this age, teenagers are also easily influenced by peer pressure, trends, and pop culture.’  These are not specific findings based on the evidence actually presented to the court,” insisted Judge Crone.  “These are blatant and biased overgeneralizations.  There is no indication that H.S.’s decision to change his gender via a medical procedure was impulsive or the result of peer pressure or pop culture influences.  According to Mother, it took H.S. ‘a year’ before he felt ‘ready’ to tell her and Father about his desire to transition.  H.S. has received counseling for gender identity issues, and both Mother and Father are supportive of his course of action, testifying that he seems ‘happier’ now.”

Judge Williams held this parental support against H.S., finding that it had more to do with the parents wanting to support their child’s decisions than with the child’s best interests.  To the contrary, wrote Judge Crone, “It should go without saying that H.S.’s parents, who have known him since his birth, are infinitely more capable than the trial judge of judging what ‘happiness’ means to their child and what is in his long-term best interests with respect to his gender identity.”  He quoted at length from the parents’ trial testimony to show that their support for H.S.’s transition was well-considered.  Their testimony about how making these changes would be practically useful for their son as he lived in his gender identity was considered “troubling” by Williams, who criticized the parents, writing of their testimony, “It seemed more in line with parents wanting to support their child’s decisions rather than parents objectively considering the best interests of their child.”  Ultimately, Williams was unpersuaded by the parents’ testimony that the transition had resulted in a remarkable affirmative change in their child, from a quiet introverted person to a happy more “interactive” person.  As far as Judge Williams was concerned, apparently there was no real change because H.S.’s school grades remained consistent from before to after the transition.  He described H.S. as a “well-adjusted” youth prior to his transition – based on what evidence is hard to discern.

Finally, on the point about proof of best interest in terms of mental and physical health, Judge Crone wrote that Williams’ statement that “no admissible evidence” was presented by the parents “obviously is not the case because the court actually admitted testimony of H.S. and his parents, as well as the letters from H.S.’s physician and mental health counselor.  Judge Bailey deems the parents’ testimony ‘conclusory,’ but I respectfully disagree.  We must review the trial court’s ruling based on the record before us, and I believe that the record is more than sufficient to support the granting of Mother’s petition to change the gender marker on H.S.’s birth certificate.”  He considered Judge Williams’ failure to grant the petition to be “a blatant abuse of the trial court’s discretion.”

Petitioners are represented by Kathleen Bensberg, Megan Stuart, and Kylee Tomblin, of Indiana Legal Services, Indianapolis.