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Indiana Appeals Court Allows Anonymous Document Changes for Transgender Men

Posted on: August 15th, 2017 by Art Leonard No Comments

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.”





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.

Bureaucratic Obtuseness Leads to Discrimination Claim by Transgender Woman against New York City

Posted on: December 4th, 2013 by Art Leonard No Comments

New York State Supreme Court Justice Margaret A. Chan (Supreme Court, New York County) ruled on December 2 that a transgender Jane Doe plaintiff had stated a cause of action against New York City based on the treatment she received when she requested that the Human Resources Administration’s HIV/AIDS Services Administration (HASA) update it records and issue her a new benefits ID card that correctly identifies her name and gender.  My first reaction on reading this case was to question why the New York City Law Department did not negotiate a settlement and is spending time litigating over what appears to be a case of bureaucratic obtuseness at HRA.

Justice Chan’s decision relates that the plaintiff, identified as male at birth in Puerto Rico, came early to recognize her female gender identity and began taking hormones and testosterone suppressants at age 12 to feminize her body. She now lives in New York.  She has undergone medical and surgical procedures to transition fully, and received a New York court name-change order in March 2011.  She is a client of HASA, and applied in August 2011 to change her records and benefits card to reflect her female name and gender.  She points out in her complaint that having the benefits card with the wrong name and gender causes her practical problems and sometimes leads to situations where she may be accused of fraud or otherwise subjected to embarrassment or harassment.

According to her complaint, Jane Doe and “her patient navigator” presented her caseworker at HASA with the court-issued name change order and a letter from her treating physician attesting to her completed gender transition, but her case manager said he “could only submit the request for a name change to the HRA Case Manager, but could not guarantee that the request would be granted.”  As to a change of gender identification, the case worker said that would not be possible without a new birth certificate, which was required by HASA’s administrative policy.  Even when Doe explained that Puerto Rico does not issue new birth certificates in gender transition cases, her case worker, his supervisor, and the Center Manager all insisted that HASA could not change its records to reflect Doe’s current gender identity without such a document.  When Doe requested a written explanation for the denial of her request, she was required to sign a release using her birth name, even though she no longer uses that name to transact business and finds it demeaning.  She also notes that HASA employees insisted on calling her by the male name on her ID card, despite the name-change order.  After continued advocacy, HASA and HRA eventually caved and changed the records, but Doe determined to challenge HASA’s policy of requiring birth certificates to make gender identification changes in its records, arguing that the name-change order and doctor’s certification should be sufficient.  She is represented by Manhattan Legal Services attorney Daniel Pepitone.

Doe brought her lawsuit under both the New York State Human Rights Law and the New York City Human Rights ordinance, alleging gender and disability discrimination.  The state law expressly forbids discrimination in providing public services because of sex or disability, while the City law goes further and expressly forbids discrimination based on gender identity.  Doe claims that she was denied access to benefits, including immediate processing of her request to update her HASA records and issue her a new benefits card reflecting her current gender and legal name.  She also claimed that HASA employees violated her right to privacy by the way they treated her, “because HASA employees were speaking loudly so that others in the office were privy to plaintiff’s request and knowledge of her change of gender.”

The city’s response: Doe was never actually denied benefits or services, and that if she felt harassed or demeaned by HASA employees, this did not “rise to the level of discrimination.”

Justice Chan noted that the City’s anti-discrimination law specifically provides that it “shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those with provisions comparably-worded, have been so construed.”

Turning first to Doe’s challenge to the policy of requiring a new birth certificate as a prerequisite for making a gender change in HASA records, Justice Chan noted that this policy is, on its face, neutral and non-discriminatory.  However, she noted, under the City’s law, “a claim of discrimination based on sexual orientation can be stated where a facially neutral policy or practice has a disparate impact on a protected group.”  Justice Chan wrote, “For the transgender community, while there are procedures on obtaining a change to one’s birth certificate after convertive surgery – at least in New York City – it does not hold true everywhere.”  Justice Chan cited a 1983 California opinion that supports Doe’s claim that Puerto Rico does not provide such changes.  “Under the present HASA policy, a transgender person, such as plaintiff, who cannot obtain a change to his/her birth certificate will not be able to obtain a benefits card to indicate a change in his/her gender despite legal name change and documentation from a doctor stating that the medical convertive surgery was complete.  While plaintiff is still eligible for HASA benefits, the unchanged benefits card denies or hampers access to those benefits.  As plaintiff had experienced, she was subjected to accusations of fraud, and denial of tangible benefits because she did not present as a man, contrary to the benefits card indication.  Therefore, while plaintiff is eligible for HASA benefits, she risks loss of such benefits due to her hampered access to them.  Thus, while HASA’s policy appears to be equal across the board, its practical impact for the transgender community is not.”

Justice Chan also found, contrary to the City’s arguments, that the way in which HASA employees treated Doe was “not a light matter.”  She found that their actions were “laden with discriminatory intent,” since they knew based on her documentation that she had transitioned, and “yet did not treat her accordingly or appropriately.”  The judge found that these actions by HASA employees “are against the tenets of HASA which is to assist clients with housing, medical, and financial needs.”  She concluded, “It cannot be said that plaintiff felt demeaned for any reason other than abject discriminatory reasons.”  Consequently, the City’s motion to dismiss the case was denied.

Because Justice Chan concludes that Doe’s allegations are sufficient to state a discrimination claim under the state and City laws, the City’s burden if it wants to proceed with this litigation would be to show that it is somehow necessary to insist on the birth certificate to make the requested change in HASA records, even when a client has presented both medical evidence and a court-ordered name change document.  If Doe’s medical evidence was sufficient for the court to order a name change, one wonders why it would not be sufficient for HASA to revise its records and issue a new benefits card that is congruent with the name change.  While it would be interesting to see whether the City could actually sustain the burden to show that its discriminatory policy has some objective justification, perhaps this opinion will wake up the Law Department to the logical conclusion that HASA should be advised to change its policy and a settlement should be negotiated with Ms. Doe.