Parents’ gender-marker change requests for transgender kids splits COA

Two Indiana trial courts must reconsider parents’ requests to change their children’s birth certificate gender markers, a majority of the Indiana Court of Appeals ruled Wednesday, finding parents have statutory authority to request the changes for their minor transgender children. A dissenting judge, however, opined that Wednesday’s decision was a judicial overreach into legislative powers.

The split decision in the consolidated appeal involves three children.

First is A.B., whose mother petitioned the Allen Circuit to change the gender marker on A.B.’s birth certificate from male to female. A.B. was 14 years old at the time, but had been presenting as female identity since she was 9 years old. Her birth certificate had previously been changed to include a name that reflected a female identity.

Likewise, 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. The trial court in both cases denied the petitions without explanation, though the judge in A.B.’s case expressed concern about “changing something like this for a child who’s not of age of majority … .”

Finally, in the Decatur Circuit Court, 16-year-old C.V.’s father petitioned to change the name on his child’s birth certificate from V.V. to C.V. and to change C.V.’s gender marker from female to male. The trial court held an evidentiary hearing and granted the name change, but the gender marker change was denied. The judge found that while the petition was filed in good faith, “[p]arents may not consent to a gender change for their children.”

The majority of the Court of Appeals reversed all three denials in a consolidated opinion handed down Wednesday, In the Matter of the Change of Gender Identification of A.B.; In the Matter of the Change of Gender Identification of O.S.; In the Matter of the Change of Name and Gender Identification of C.V. (f/k/a V.V.), 20A-MI-1580.

Senior Judge Ezra Friedlander — joined by Judge Nancy Vaidik — held that “(t)he changing of a child’s gender marker is commensurate with … other life-changing alterations to a birth certificate,” such as a parent’s request to change a minor child’s name or a biological father’s request to add his name to a child’s birth certificate.”

“Considering the broad language of Indiana Code section 16-37-2-10(b), and the wide authority of parents to make decisions about their children’s lives, we conclude the trial court in C.V.’s case erred in stating C.V.’s father lacked the authority to request a change to the gender marker on C.V.’s birth certificate,” Friedlander wrote for the majority.

As for the appropriate standard of review for a gender marker change, Friedlander wrote that “when an adult requests that relief, ‘the ultimate focus should be on whether the petition is made in good faith and not for a fraudulent or unlawful purpose.’ … By contrast, when a parent petitions to change a child’s gender marker, similar to requesting a name change for a child, we conclude the appropriate standard is whether the change is in the child’s best interests.”

Here, the trial court in C.V.’s case did not reach the best interests issue, Friedlander wrote, “and we cannot determine whether the trial court in A.B.’s and O.S.’s cases applied the best interests standard.”

“Under these circumstances, the trial courts should be given an opportunity to reconsider the petitions using the correct standard of review,” the majority concluded. “For the reasons stated above, in all three trial court cases, we reverse the denial of the parents’ petitions and remand with instructions to address the petitions in accordance with the best interest standard.”

Judge Rudolph Pyle, however, dissented.

“My colleagues seek, based upon the holdings in In re the Petition for Change of Birth Certificate, 22 N.E.3d 707 (Ind. Ct. App. 2014), and Matter of R.E., 142 N.E.3d 1045 (Ind. Ct. App. 2020), to shoehorn a remedy for the petitions that does not yet exist,” Pyle wrote in a separate opinion. “However, the shoe does not fit. As a result, my colleagues have strayed into an area reserved for our General Assembly.”

Specifically, Pyle argued the Indiana Legislature “has not provided Indiana trial courts with any statutory authority to grant petitions to change a minor child’s gender to reflect their gender identity and presentation.”

He disagreed not only with Wednesday’s majority ruling but also with the rulings in In re Birth Certificate and Matter of R.E., which each dealt with Indiana Code § 16-37-2-10. That statute “has nothing to do with amending a birth certificate to reflect a parent’s desire to change a minor child’s gender to reflect their gender identity and presentation,” he wrote.

“Allowing for a change of a gender marker on a birth certificate may be a worthy policy objective. However, it is not an objective that should be achieved through the courts,” Pyle wrote. “… Our court should not rely upon a limited appellate record to bootstrap a statute in order to achieve a policy objective; instead, the legislature, which is in session, should be the cobbler of the mechanism to seek a gender marker change on a birth certificate.

“Respectfully, I believe that the decisions handed down in this case, In re Birth Certificate, 22 N.E.3d 707, and Matter of R.E., 142 N.E.3d 1045 improperly expanded judicial authority into an areas where none properly exists,” the dissent concluded. “As a result, I would affirm the judgments of the respective trial courts.”

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