Editor’s note: This article has been updated with comments from Indiana Legal Services.
The Indiana Supreme Court will not consider two cases involving transgender children whose parents’ petitions to change their gender markers on their birth certificates were denied.
The transfer denials, both issued Wednesday, came despite requests from Indiana Attorney General Todd Rokita and a divided Court of Appeals of Indiana for the high court to take the cases.
In one case — In the Matter of the Change of Gender of O.J.G.S. (Minor Child); S.G.S., 21A-MI-2096 — minor O.S.’s mother asked the Allen Circuit Court to change the gender marker on her birth certificate from male to female. O.S. was 7 years old at the time.
The Allen Circuit Court denied the petition without explanation.
But in February 2021, a split COA panel reversed the denial and remanded with instructions to consider whether the change was in the child’s best interest. The reversal was part of a consolidated opinion that dealt with two other similar gender-marker cases.
The Allen County court again denied the petition on remand, ruling the child’s age was “extremely young” and that the mother’s wishes as a “very loving and caring parent” were based “more on a mother’s speculation and future worry than on current conditions.”
In a second appeal, another COA panel changed course and affirmed the second denial. Noting its conflicting precedent, the COA called on the Supreme Court to help resolve the issue.
“In light of this second plurality opinion in less than a year, I urge the Supreme Court to speak on this matter, which has divided this court and resulted, unfortunately, in unpredictability for petitioners who earnestly desire a remedy,” Judge Robert Altice wrote in the court’s majority opinion. “In my view, the mechanism for such a change, no matter how vital to certain members of our society, must be crafted by the General Assembly.”
Judge L. Mark Bailey concurred in result, writing separately that absent a statutory framework, he would vote to affirm the trial court’s denial of the petition for a gender marker change.
Rokita also asked the Supreme Court to grant transfer, requesting that the justices clear up confusion on the matter by ruling the judiciary has no authority to order a change of “sex” on the legal documents.
All justices concurred in denying transfer except for Justices Geoffrey Slaughter and Derek Molter.
In the other case — In the Matter of the Change of Gender of K.G. (Minor Child); T.L.J., 22A-MI-502 — minor K.G. was born male in 2009 but informed mother T.L.J. in 2021 that she identified as a transgender female.
The Orange Circuit Court denied petitions to change K.G.’s name and gender marker on her birth certificate.
A COA panel affirmed on the gender marker issue, concluding the trial court did not have the statutory authority to grant the petition.
“Because we do not believe that Indiana Code section 16-37-2-10 provides the court with the authority to grant the requested relief,” then-Chief Judge Cale Bradford wrote, “we conclude that the trial court did not err in denying Mother’s petition to change Child’s gender marker.”
On the issue of the name change, the appellate panel found it was limited by the trial court’s “failure to provide any findings explaining why it determined that the requested change was not in Child’s best interests,” and thus remanded on that issue.
The Supreme Court denied transfer to that case, as well, with Justice Molter and Chief Justice Loretta Rush voting to grant transfer.
Following the denials, Rokita tweeted: “Today, the IN Supreme Court denied two transfers, leaving in place my office’s stance that courts lack the authority to rule whether or not someone can change their sex listed on a birth certificate.”
He added in a second tweet: “The listing of biological sex on birth certificates has an important purpose — to report factual information and details of a child’s birth.”
But Megan Stuart of Indiana Legal Services, which represented the petitioners, said the denial of transfer “does not change the law about gender marker changes in Indiana, which gives trial courts statutory and equitable authority to issue gender marker change orders.”
“As the Attorney General is aware, transfer denials are not signs of agreement or disagreement with a court of appeals decision or any party’s position,” Stuart said in a statement. “We are hopeful that the majority of trial courts will continue to exercise their authority to issue gender marker change orders because accurate and affirming birth certificates are vital in ensuring transgender children’s safety and success as they venture into the world.”