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Appeals Court Vacates Preliminary Injunction Against Alabama’s Ban on Gender-Affirming Care for Minors

Posted on: August 22nd, 2023 by Art Leonard No Comments

A three-judge panel of the 11th Circuit U.S. Court of Appeals issued an order on August 21 vacating the preliminary injunction that District Judge Liles C. Burke had issued in May 2022 to temporarily blocked the enforcement of that portion of Alabama’s “Vulnerable Child Compassion and Protection Act” that makes it a crime to provide puberty blockers and cross-sex hormones to persons under the age of 19 for purposes of confirming their transgender identity.  Eknes-Tucker v. Governor, State of Alabama, 2023 WL 5344981, 2023 U.S. App. LEXIS 21942 (11th Cir., Aug. 21, 2023), vacating 603 F. Supp. 3d 1131 (M.D. Ala. 2022).  Judge Burke’s preliminary injunction was intended to preserve the status quo (availability of such treatments) while the case was being litigated.

Circuit Judge Barbara Lagoa, an appointee of President Donald J. Trump, wrote the opinion panel opinion, which was joined by Circuit Judge Andrew Brasher and District Judge Jean-Paul Boulee of the Northern District of Georgia, both also Trump appointees.  District Judge Burke, who had issued the preliminary injunction, was also an appointee of President Trump.  Judge Brasher also wrote a concurring opinion.

This ruling has a significance beyond Alabama, as district court judges in Florida and Georgia, whose rulings are subject to 11th Circuit review, have previously issued preliminary injunctions against similar laws in those states.  The Florida and Georgia governments can now be expected to ask those judges to vacate their preliminary injunctions, and they might well do so.

The plaintiffs in the Alabama case, a group of transgender minors, their parents, and “other concerned individuals,” can ask the full twelve-member 11th Circuit bench to review this decision, but a grant of review seems unlikely, since seven of the active circuit judges are conservative Republican appointees, and “en banc” review requires a majority vote of the full circuit bench, which it is unlikely to receive.

There is already a split of federal circuit court opinion on the key legal issues involved in this decision, with the 8th Circuit having affirmed a preliminary injunction against Arkansas’s ban of gender-affirming care for minors, and the 6th Circuit haven taken a contrary view in a Tennessee case.  A circuit split over questions of constitutional interpretation lays the groundwork for Supreme Court review, if the losing party before the court of appeals files a petition with the Supreme Court.

Because the 11th Circuit’s ruling is not a final decision on the merits, however, which now continues to discovery and possible trial, the plaintiffs have an important strategic decision to make: whether to try to get the preliminary injunction reinstated or whether instead to go through a trial and an appeal of a ruling on the merits before seeking to involve the Supreme Court.  Because this ruling creates the immediate danger that minors receiving gender-affirming care in Alabama may now have to go out of state to continue it, the plaintiffs may decide that further immediate appeals are necessary.

Judge Burke’s preliminary injunction was premised on his conclusion that the law violates the due process rights of the parents and the equal protection rights of the transgender minors in violation of the 14th Amendment.  He concluded that the liberty protected by the Due Process Clause includes the right of parents to provide gender-affirming care to their transgender children, and that the state’s law employs a classification based on sex and/or gender identity violating the Equal Protection Clause when it prohibits the use of puberty blockers or cross-sex hormones for the treatment of gender dysphoria but allows those medications to be used to treat premature or delayed puberty in cisgender minors.   Under both constitutional provisions, he determined that “heightened” or “intermediate” scrutiny applied, putting the burden on the state to justify this intrusion upon individual rights by proving an important state interest that was substantially advanced by the law.  Judge Burke found that the state’s arguments opposing the preliminary injunction failed to meet this test for purposes of ordering preliminary relief to preserve the status quo.  But the 11th Circuit panel found that Judge Burke had applied the wrong constitutional analysis.

In their view, under the substantive due process theory as most recently held by the Supreme Court in Dobbs v. Jackson Women’s Health Organization (the 2022 abortion decision overruling Roe v. Wade), the liberty interested protected by the due process clause is limited to the rights expressly identified in the Bill of Rights (first ten amendments of the Constitution adopted in 1791) and those unwritten rights that were widely recognized when the 14th Amendment was adopted after the Civil War in 1867.

Judge Lagoa observed that the use of puberty blockers and cross-sex hormones for gender-affirming care was a late twentieth century phenomenon, so under the “historical” approach to recognizing protected liberty interests, there was no constitutional protection for the claimed parental rights so long as the state had a rational basis to enact the law.  This is a lenient standard of judicial review that the court found was easily met in this case by the legislative findings recited in the statute, many of which were sharply refuted just a day earlier by a federal court in Georgia that issued a preliminary injunction against that state’s ban, which is now likely to be vacated on appeal unless the district judge agrees to do so in response to this 11th Circuit opinion.  Judge Lagoa observed that the plaintiffs had presented no historical evidence in support of their due process claim, and Judge Burke had not discussed the issue in his May 2022 preliminary injunction order (which, to be fair, predated the Supreme Court’s decision in Dobbs).

As to the Equal Protection analysis, the 11th Circuit panel found that the Alabama statute does not establish a sex classification but, agreeing with Alabama’s attorneys, found that it established a classification by treatment and age, neither of which are suspect classifications.  That is, the law forbids certain treatments for people below a certain age, regardless of whether they are male or female.  As to the argument that the law discriminates because of gender identity, the panel noted recent 11th Circuit opinions expressing doubt whether gender identity is a “suspect” or “quasi-suspect” classification for equal protection purposes.  They rejected the plaintiffs’ argument that the Supreme Court’s Bostock decision of 2020 decided this issue when it held that an employer who fires an employee for being transgender has discriminated because of sex within the meaning of Title VII of the Civil Rights Act of 1974.  Judge Lagoa insisted that this ruling was irrelevant to the case now before the court, as it turned on interpretation of the particular wording of an employment discrimination statute, not a constitutional provision.  Unlike Title VII, the Equal Protection Clause expressly states only a generalized requirement that states afford all their residents “the equal protection of the laws,” the meaning of which is left to judicial interpretation.  And neither the Supreme Court nor the 11th Circuit has yet addressed the question of whether laws banning gender-affirming care for minors violate equal protection, thus undercutting Judge Burke’s conclusion that plaintiffs had shown a substantial likelihood of prevailing on the merits – a required element to support a preliminary injunction against the enforcement of a statute.

As with the due process issue, the court ruled that the equal protection issue did not require “heightened” or “strict” scrutiny and that the state could rationally decide to forbid such treatments to transgender minors as part of its power to protect the health and welfare of children against the risks incident to gender-affirming care.  Alabama’s “legislative findings” in the statute emphasize risks without acknowledging benefits, and as the Georgia district court found on August 20, legislatures that have passed these bans have exaggerated the risks and failed to give weight to the benefits that parents have described.

Judge Brashers’ concurring opinion, while agreeing with the other members of the panel that the “rational basis” test is the correct test for this case, argued that the statute could even survive heightened scrutiny, in light of the important role of the state in protecting the health and welfare of children and the legislative findings spelled out in the statute concerning the risks of gender-affirming care.

The plaintiffs are represented by pro bono attorneys from King & Spalding working with GLBTQ Legal Advocates and Defenders, the Southern Poverty Law Center, the National Center for Lesbian Rights, and the Human Rights Campaign Foundation.  The court received numerous amicus briefs including one backing plaintiffs from the major medical professional associations and one backing the state of Alabama from other states that have enacted similar laws.

 

6th Circuit Panel Stays Preliminary Injunction in Tennessee Gender-Affirming Care Case

Posted on: July 8th, 2023 by Art Leonard No Comments

For the first time, federal judges have suggested that constitutional challenges to state laws banning gender-affirming care for minors are unlikely to succeed, and have stayed a preliminary injunction that was issued by the district court on June 28 against operation of Tennessee’s law.  The case is LW. V. Skrmetti, No. 23-5600 (6th Cir.).  The state’s request to the trial judge to stay his preliminary injunction pending an appeal had been denied by that judge.  The state immediately filed an “emergency motion” to stay the preliminary injunction.

A three-judge panel of the U.S. Court of Appeals for the 6th Circuit voted 2-1 in a decision released on July 8 that the district court’s statewide preliminary injunction against the Tennessee law should be stayed as the case proceeds.  However, acknowledging that their ruling contradicts the ruling of all federal courts that have addressed this issue thus far on the issues of due process and equal protection, the panel promised to expedite consideration of the state’s appeal from the preliminary injunction, with the goal of issuing a decision by September 30.

The Tennessee law, which was scheduled to go into effect on July 1, authorizes state regulatory authorities to impose “professional discipline” on any physician providing gender-affirming care to minors, with a temporary carve-out until March 31, 2024, for continuing care to those already receiving the treatment.  Thus, it would be professional misconduct in Tennessee for a licensed health care provider to start providing gender-affirming care to patients now, or to continue providing such care to patients after March 31 of next year.  The law also provides a right for an “injured minor” or a “nonconsenting parent” to sue health care providers for providing such care.

The district judge who issued the preliminary injunction, Eli Richardson (appointed by President Donald J. Trump), found that the plaintiffs – three transgender minors and their parents– were likely to prevail on their argument that the law violated the constitutional rights of transgender minors on equal protection grounds and their parents on due process grounds.  However, he found that they lacked standing to contest the ban on surgery, limiting his preliminary injunction to the ban on puberty blockers or cross-sex hormones.

The majority of the 6th Circuit panel, Chief Circuit Judge Jeffrey Sutton (appointed by President George W. Bush) and Circuit Judge Amul Thapar (appointed by President Trump), found that Judge Richardson erred by recognizing a “new” fundamental right under the due process clause for parents to override state legislative judgments about access to particular medical treatments for their children.  Judge Richardson found, based on the record before him, that the facts asserted by the Tennessee legislature in support of this measure were contrary to the weight of professional medical authority, but the panel majority insisted that on a motion for preliminary injunction it was inappropriate for the trial court to substitute its judgment for the legislature’s decision to “protect” minors from “experimental treatments” that could permanently affect their reproductive capacity.  The panel majority was critical of the judge’s deferral to the majority judgment of the medical profession, noting that there was debate within the profession on the wisdom of using these medications on minors.

The panel majority also seized upon the fact that use of puberty blockers and cross-sex hormones for gender affirming care was an “off label” use of those medications, as they have not been officially approved by the Food and Drug Administration (FDA) for that purpose.  Judge Richardson had found that “off-label” use of approved drugs is a widespread practice in the medical profession when the drugs have been deemed safe by the FDA, so he had not given weight to the state’s argument that it was rational for it to prohibit such care on that basis.

The panel majority insisted that the Supreme Court has never directly recognized the fundamental right claimed by the plaintiffs in this case, and had – most recently in the Dobbs abortion decision – shown great reluctance to apply the Due Process Clause to recognize rights that were not recognized when the 14th Amendment was adopted in 1867.  Indeed, the court pointed out that the Supreme Court has not recognized any new fundamental rights in the past forty years, arguing that thus it was inappropriate for a federal trial judge to do so in deciding a pre-trial preliminary injunction motion.  As far as the panel majority was concerned, the Supreme Court’s prior parental rights decisions (dealing with education and child custody issues) had not extended to health care, and the Supreme Court had even overridden parents objections to a compulsory vaccination law more than a century ago.

The panel majority rejected Judge Richardson’s conclusion that the plaintiffs were likely to prevail on their equal protection claim, which was based on the conclusion that banning gender-affirming care should be considered either discrimination on the basis of sex or of gender identity, in either case subject to heightened scrutiny.  The panel majority argued that neither the Supreme Court nor the 6th Circuit has explicitly ruled that gender identity discrimination requires heightened scrutiny.

They also rejected the argument that banning gender-affirming care constitutes sex discrimination.  In so doing, they rejected the argument that the Supreme Court’s reasoning in the Bostock case, holding that an employer discriminating against an employee because of their “transgender status” constituted sex discrimination, should be applied in a constitutional equal protection case.  They argued that the Bostock decision applied to interpretation of Title VII of the Civil Rights Act of 1964, which applies only to employment discrimination, and that the Supreme Court had disclaimed ruling on any other aspect of gender identity discrimination.

The panel majority instead embraced the simplistic argument that because the ban on gender affirming care applied equally to male and female minors, there was no discrimination because of sex.  Such reasoning had been rejected by the Supreme Court in Loving v. Virginia, where the state defended its law against interracial marriage by arguing that both white and non-white persons were prohibited from engaging in interracial marriage so there was no discrimination because of race.  The panel majority countered with the Supreme Court’s holding in Dobbs that laws banning abortion, an operation performed only on women, did not raise an equal protection issue.

Before getting to these substantive points, however, the full three-judge panel found that Judge Richardson should not have issued a statewide injunction, insisting that any preliminary relief should be limited to the plaintiffs in the case.  They noted that this was not certified as a class action case, and that blocking the enforcement of a statute for the entire state could only be justified if plaintiffs were likely to prevail on a claim that there were no possible lawful applications of the statute, that it was invalid on its face for all applications.

Dissenting in part, Senior Circuit Judge Helene White (initially appointed by President Bill Clinton toward the end of his second term, but confirmed under a deal to break a deadlock in confirming circuit court judges under which her name was resubmitted to the Senate by President George W. Bush) agreed that the statewide injunction was improper under a 6th Circuit precedent holding that “district courts should not issue relief that extends further than necessary to remedy the plaintiff’s injury.”  However, she parted company from the majority on the equal protection claim, finding that the 6th Circuit’s precedents had recognized discrimination claims by transgender plaintiffs in several cases under Title VII, and that the 6th Circuit had specifically held in the past that “we review discrimination claims brought under the Equal Protection Clause using the same test applied under Title VII.”  She would have upheld the preliminary injunction but narrowed it to apply only to enforcement against the plaintiffs.

 

 

Trump Alumni Group Engineers Challenge to Bostock Application Outside of Title VII

Posted on: May 2nd, 2022 by Art Leonard No Comments

Shortly after the end of Donald Trump’s Administration, a group of his top officials formed a new organization intended to challenge attempts by the Biden Administration to change Trump’s policies.  With Stephen Miller, White House counselor and the evil genius behind many of Trump’s policies, as its president and board chair, America First Legal Foundation boasts as board members former Chief of Staff Mark Meadows, former Acting Attorney General Matthew Whitaker, and former Director of the Office of Management and Budget Russ Vought.  Co-founder with Miller is Gene Hamilton, former senior counselor to the Secretary of Homeland Security and former counselor to the Attorneys General in the Trump Administration.  Not surprisingly, finding ways to limit the impact of the Supreme Court’s ruling in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), is high on their list of priorities.  In Bostock, the Supreme Court held that sexual orientation and gender identity discrimination claims came within the sphere of prohibited sex discrimination under Title VII of the Civil Rights Act of 1964.  Justice Neil Gorsuch, writing for a 6-3 majority, purported to use “textual” analysis to reach this result based on the “original meaning” of the language used by Congress in 1964, which, according to Gorsuch, would be “biological sex.”

America First’s litigation vehicle for this project is Neese v. Becerra, 2022 WL 1265925, 2022 U.S. Dist. LEXIS 75847 (N.D. Tex., April 26, 2022).  U.S. District Judge Matthew J. Kacsmaryk denied the government’s motion to dismiss this case on April 26.  The suit targets the extension of Bostock’s reasoning to Title IX of the Education Amendments of 1972 and Section 1557 of the Affordable Care Act.

This case is an audacious example of overt forum-shopping.  The suit was filed in the U.S. District Court in Amarillo, Texas, a courthouse within the Northern District of Texas.  There is only one district judge assigned to that courthouse — Judge Kacsmaryk – so any case filed there goes directly to him.  They could not have picked a better judge for their case.  Kacsmaryk was among the early Trump judicial nominees, a Federalist Society member and former deputy general counsel of First Liberty Institute, a litigation group that pushes for the broadest possible interpretation of religious freedom as against government regulations.  LGBT groups protested his nomination, pointing to his statements that homosexuality as “disordered,” and that transgender people are delusional and suffering a mental disorder.  (As a member of the Red Mass Committee of the Roman Catholic Diocese of Fort Worth, his use of the term “disordered” is not surprising, given the use of this term by the Catholic Church to describe homosexuality.)  Despite the iron grip on judicial nominations by then-Majority Leader Mitch McConnell and then-Judiciary Committee Chair Chuck Grassley in the Senate, it took three tries for Trump to get this one through.  The 2017 nomination died at the end of session; Trump renominated in 2018, but that died at the end of session; Trump renominated in 2019.  This time, Kacsmaryk passed the Judiciary Committee and the Senate floor on party-line votes.  He’s the judge who enjoined the Biden Administration’s attempt to modify southern border control policies without going through a complete Administrative Procedure Act cycle.

The lawsuit was filed last year on behalf of three doctors, said to practice in Texas and California, but the judge’s opinion does not specify whether any of them practices within the geographical scope of the district court in Amarillo.  No matter, as jurisdiction to sue the federal government lies in every federal district court.  They claim fear of being sued or prosecuted for discrimination under Section 1557 because of their approach to dealing with transgender patients as the basis of their standing to sue.

Although one would expect a judge with Kacsmaryk’s background to be challenged with a recusal motion, or even to voluntarily recuse in an LGBT case given the controversy surrounding his appointment, there is not a whiff of that in the opinion.  The Justice Department moved to dismiss on two grounds: standing of the plaintiffs, and failure to state a claim in light of Bostock.  The essence of plaintiffs’ case is arguing that Bostock does not apply to Title IX and Section 1557, so the Biden Administration’s view (expressed in the President’s first executive order issued in January 2017 and a subsequent Notification sent to health care providers and insurers by HHS) is contrary to law.

As to standing, the plaintiffs allege that they have all had transgender plaintiffs, including minors (the main focus of their discussion), and that they have provided gender-affirming care to some when they felt it justified, but that they believe gender-affirming care is not appropriate for all minors who identify as transgender, that surgical alteration is never justified for minors, and that they should be free to treat their patients consistent with their patients’ “biological sex” and the doctors’ ethical views.  The Notification that HHS sent to health care providers early in the Biden Administration advised that the agency would apply Bostock’s reasoning to hold that Section 1557 of the Affordable Care Act, whose prohibited grounds of discrimination are cross-referenced from other federal laws including Title IX, applies to claims of discrimination because of sexual orientation or gender identity, and that HHS would enforce the statute accordingly.  This was directly contrary to the interpretation published by the Trump Administration as recently as January 2021, shortly before the transfer of office to Biden. The plaintiffs described various scenarios in which they believe that the treatments they were bound to provide or to deny based on their professional ethics would place them in danger of lawsuits by patients and enforcement by HHS under Section 1557.  Judge Kacsmaryk decided this was sufficient to give them standing to challenge the interpretation.  They are seeking declaratory and injunctive relief at this point.  None of them have been sued or investigated by HHS on this issue.

As to failure to state a claim, plaintiffs disputed that Bostock’s reasoning was applicable to Title IX and Section 1557 (although several other federal courts since June 2020 have found the reasoning applicable).  They note that the 5th Circuit has yet to issue a controlling precedent on this, and the Supreme Court has not taken up the question.  The judge decided that as a “pure question of law” this was an open issue, and that plaintiffs’ allegations were sufficient to put it in play.

In particular, the judge zeroed in on differences in language and structure between Title VII and Title IX.  Title VII, an employment discrimination statute, was construed in Bostock to impose a “but-for” test of intent for disparate treatment employment discrimination claims.  Judge Neil Gorsuch’s opinion for the Court reasoned that it was impossible for an employer to discriminate against an applicant or employee “because of” their sexual orientation or gender identity without discrimination “because of” their sex, using the language of the statute.  Furthermore, Title VII has been construed – a construction bolstered by Congress in the Civil Rights Restoration Act of 1991 – to apply so long as a forbidden ground of discrimination, such as sex, was a factor in a personnel decision, albeit just a contributing one.

By contrast, Title IX, adopted a few years after Title VII, prohibits discrimination by educational institutions that receive federal money “on the basis of sex.”  Plaintiffs argue that this is a different standard from that imposed by Title VII, and point to various provisions of Title IX that at least by implication would suggest a biological definition of sex and a binary treatment of sex, including a provision of the Title IX regulations (which is frequently invoked by defendant school districts in cases involving restroom and locker room access by transgender students) that authorize separate facilities for boys and girls.  Their argument is that Gorsuch’s reasoning in Title VII is peculiar to Title VII and the workplace issues to which it applies, and is not transferable to other contexts, such as schools or health care providers.  This argument, found the judge, puts the interpretive issue in play, so he denies the motion to dismiss for failure to state a claim.

As noted above, this case is clearly a set-up, filed in Amarillo specifically to present it to Judge Kacsmaryk, noting the strong rightward tilt of the 5th Circuit, where Republican appointees among active judges outnumber Democratic appointees by 12-5 (including 6 Trump appointees), and the plaintiffs’ clear aim is to get this up to the Supreme Court’s 6-3 conservative majority to get a “definitive” ruling that Bostock does not apply to Title IX (and by extension to the ACA Section 1557).  Civil rights enforcers in the Department of Education and the Department of Health and Human Services are already involved in investigating and pursuing claims in several courts.  The Supreme Court has already declined opportunities to address the question, but a 5th Circuit ruling along the lines proposed by America First in this lawsuit would create a circuit split that would prove most enticing to at least four and possibly more members of the court.

Counsel for plaintiffs from America First Legal Foundation is Gene Hamilton, with local counsel in Amarillo from Sprouse Shrader Smith PLLC, and Jonathan F. Mitchell of Austin.  Lead attorney from the Civil Division of the Justice Department is Jeremy S. B. Newman, with Brian Walters Stoltz from the U.S. Attorney’s Office in Dallas and Jordan Landum Von Bokern from the Justice Department in Washington.

This case bears close watching. A “nationwide” injunction from Judge Kacsmaryk would seem likely, if his analysis on the motion to dismiss is any indication, and could throw a wrench into ongoing enforcement activity, not only by HHS and DOE, but by other federal agencies with sex discrimination jurisdiction.

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.