Rokita encourages IN Supreme Court to take birth certificate gender marker case

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Indiana Attorney General Todd Rokita is advocating for the Indiana Supreme Court to grant transfer to a case concerning transgender Hoosiers’ birth certificates, requesting justices clear up confusion on the matter by ruling the judiciary has no authority to order a change of “sex” on the legal documents.

On Aug. 3, Indiana Solicitor General Thomas M. Fisher filed an intervenor’s response to a petition to transfer the case of In Re: The Change of Gender of O.J.G.S. v. S.G.S., 21A-MI-2096, to the Supreme Court.

The consolidated case has twice split a panel of the Court of Appeals of Indiana, which initially ordered two Indiana trial courts to reconsider several parents’ requests to change their children’s birth certificate gender markers.

As a matter of first impression, the COA majority ruled in February 2021 that the parents had the authority to petition for a gender marker change on their minor children’s birth certificates, determining the appropriate standard to apply to such a petition is whether the proposed change is in the child’s best interests.

On remand, a trial court denied a petition as to O.J.G.S., ruling that it could not make a finding that the gender marker change was in the best interest of the child.

In May, a split COA panel affirmed the denial, though it acknowledged its conflicting precedent.

In the May opinion, Judge Robert Altice requested justices take up the issue. A petition to transfer was filed on July 14.

In the intervenor’s brief, Fisher argues that only the Indiana Legislature can pass a law allowing such alterations to a birth certificate, and that Indiana Code § 16-37-2-10 requires a person’s “sex” be recorded, not their “gender identity.”

“The purpose of a birth certificate is obviously to establish a record of biological birth and certain relevant factual details of that occasion,” Attorney General Rokita said in a news release announcing the brief. “To change the designated sex on a birth certificate later is in effect falsifying that document.

The brief says the high court needs to “resolve the confusion with a clear rule grounded in law.”

It further argues, “No statute provides (1) a cause of action for changing the sex recorded on a birth certificate, (2) judicial authority to change the recorded sex in any circumstance, or (3) a standard for evaluating petitions to change that information. Indiana law otherwise provides a right to petition (the Indiana Department of Health) to make ‘additions to or corrections in a certificate of birth’ regarding a ‘paternity’ record, and it provides a cause of action to petition for name changes. But it provides no procedure or standard by which a court or IDOH may change the sex recorded on a birth certificate to reflect a different gender identity.

“A court’s general equitable powers do not provide such authority, either,” the brief continues. “The ‘inherent equity power’ of the judiciary is limited by historical practice, which does not include judicial alteration of birth certificates to reflect gender identity. And by expressly placing authority to manage and change birth certificates in IDOH, the General Assembly limited any equitable authority of the courts to do so.”

The brief concludes by saying the COA is “fractured in multiple directions” over the issue, but the justices can provide clarity.

Rokita’s office is involved in multiple transgender lawsuits, with issues ranging from whether trans kids can use their gender-affirming bathrooms at school to whether they can play on sports teams aligned with their gender identities.

“We all should care about and sympathize with our fellow Hoosiers’ specific life experiences,” the AG said. “By insisting on public policies that serve the greater good, we ultimately reinforce that principle rather than diminish it.”

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