COA divided over mother’s gender-marker change request for transgender son

A split Indiana Court of Appeals panel upheld Monday the denial of a mother’s petition asking for a gender marker change for her transgender son on his birth certificate, finding sufficient evidence wasn’t provided to prove the change was in the child’s best interests.

In September 2020, mother L.S. petitioned the Allen Superior Court for a change of name and gender marker on the birth certificate of her 15-year-old transgender son H.S. pursuant to Indiana Code Section 34-28-2-1 and 16-37-2- 10, respectively.

During a hearing on the matter, testimony was provided from the mother, father and H.S., who all advocated for the changes. Mother also submitted into evidence two documents, one described as a letter from H.S.’s physician and the other described as a letter from his “counselor.”

The trial court issued an order granting the petition for a name change but denied the gender marker change, finding insufficient evidence of the child’s best interest due to the absence of expert testimony or authenticated documents.

After applying a “best interests of the child analysis found in Indiana Code Section 31-7-17-2-8 as the standard for deciding cases involving a request for a gender marker change for a minor child,” it found as dispositive “the lack of competent evidence” as to the mental and physical health of the child statutory factor, which it noted was “likely the most significant factor.”

Writing for the appellate majority, Judge L. Mark Bailey affirmed, noting that the court examined the cases of Petition for Change of Birth Certificate, 22 N.E.3d 707 (Ind. Ct. App. 2014),  Matter of R.E., 142 N.E.3d 1045 (Ind. Ct. App. 2020),  and Matter of A.B., 164 N.E.3d 167 (Ind. Ct. App. 2021).

The appellate majority found the totality of the child’s medical history was highly relevant, but the parents “decided to forego (sic) 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,” Bailey wrote.

Judge Rudolph R. Pyle III concurred in result in a separate opinion, while Judge Terry A. Crone dissented.

“As summarized in this opinion and more fully explained in Matter of A.B. … I do not believe statutory authority exists for the judiciary to invent a procedure for changing a minor child’s gender marker to reflect gender identity and presentation. Further, a fundamental right has not been established allowing the judiciary to grant the remedy sought in this case,” Pyle wrote.

Crone’s dissent — which recognized statutory authority doesn’t exist to change gender markers for minors — said he agreed with Bailey’s conclusion that any application of Indiana Code Section 15-37-2-10 “must be accompanied by a best interests analysis,” but he disagreed that the teen’s parents didn’t proffer any relevant medical records.

“The trial court found that ‘no admissible evidence’ was presented on H.S.’s mental and physical health, which obviously is not the case because the court actually admitted the testimony of H.S. and his parents, as well as the letters from H.S.’s physician and mental health counselor,” Crone wrote. “I would reverse and remand with instructions to grant the requested relief, as the failure to do so was a blatant abuse of the trial court’s discretion.”

Crone opined that the concerns shared by the mother that H.S. wouldn’t be able to get legal documents, such as a driver’s license, with a male gender marker could lead to discriminatory treatment was also a real concern that should’ve held more weight.

“Recent history offers plenty of unfortunate examples of legal, governmental, and social intolerance (including violence) toward transgender persons,” Crone wrote. “In fact, Mother testified that she withdrew H.S. from the local public school because of bullying based on his ‘position as a transgender student.’ … In sum, the trial court was wrong to disregard the wishes of H.S.’s parents as they relate to his best interests.”

The dissenting judge also said that the parents know what’s best for H.S. — not the trial courts.

“It should go without saying that H.S.’s parents, who have known him since his birth, are infinitely more capable than the trial court of judging what ‘happiness’ means to their child and what is in his long-term best interests with respect to his gender identity,” the dissent said.

The case is In re the Change of Name and Gender of H.S., a Minor, L.S., 21A-MI-884.

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