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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowMaking an about-face, a sharply divided panel of the Court of Appeals of Indiana has affirmed the denial of a mother’s second request to change her transgender child’s birth certificate gender marker. But noting its own conflicting precedent, the COA called on the Indiana Supreme Court to help resolve the issue.
The case of IN RE: THE CHANGE OF GENDER OF: O.J.G.S., A Minor, S.G.S., 21A-MI-2096, stems from a consolidated case in which another split Court of Appeals panel 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 certificate. It determined the appropriate standard to apply to such a petition is whether the proposed change is in the child’s best interests.
Judge Rudolph Pyle dissented, opining that the decision was a judicial overreach into legislative powers, and that the plain language of Indiana Code § 16-37-2-10 does not provide Indiana trial courts with the authority to grant petitions to amend gender markers on birth certificates.
Among the families involved in that consolidated suit were mother S.G.S. and her minor transgender child, O.J.G.S.
In March 2020, the mother asked the Allen Circuit Court to change the gender marker on her child’s birth certificate from male to female when the child was, at the time, 7 years old.
The trial court denied the petition without explanation before facing a remand from the COA to look at the issue in light of the child’s best interests.
On remand, the trial court issued a second denial of S.G.S.’s petition, explaining that 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.”
The trial court ultimately determined it could not make a finding that granting the petition would be in O.J.G.S.’s best interests.
S.G.S. appealed again to the COA, arguing the trial court abused its discretion by relying on its own assumptions rather than the evidence presented through her testimony and the letters from the child’s medical providers. She asserted that the trial court’s order “thwarts the reasoned decision of a ‘very good parent’ instead of deferring to it,” and that the trial court “refuse[d] relief that would increase [Child’s] safety and wellbeing when her current and future welfare should be the chief concern.”
Despite finding her arguments “compelling,” Judge Robert Altice concluded the COA “cannot overlook the fact that this court made an improper lane change beginning in 2014, as highlighted by Judge Pyle’s dissent in this case’s first appeal.”
“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,” Altice wrote. “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.”
Concurring in result, Judge L. Mark Bailey wrote separately that absent a statutory framework, he would vote to affirm the trial court’s denial of the petition for a gender marker change.
The concurring judge partially agreed with both the majority and dissent, finding “ample evidence … that a gender marker change is consistent with the family’s wishes and the child’s best interests as understood by the child’s medical providers.” He added that a trial court would welcome an independent evaluation of a child’s psychological makeup and the sincerity of the child’s and parent’s expressed wishes.
“But we simply have no statutory context,” Bailey wrote. “At bottom, a parent has the right to ask, but no right to order the registrar to effect a change, absent an error in the designated sex of the child at the time of birth.”
In a 17-page dissent, Judge Paul D. Mathias joined the majority in calling for the Indiana General Assembly to provide guidance but disagreed that Indiana’s judiciary is unable to act without a statutory framework in this case.
The dissent concluded that “there is no question that the trial court’s judgment is wholly unsupported by the record and, thus, is clearly erroneous.”
“In the end, we are left with Child, and many other Hoosier children like Child, with no remedy for the condition in which they find themselves through no fault of their own. It does not need to be this way,” Mathias wrote. “Unless and until the General Assembly and Governor create a fair resolution structure, or clearly forbid any change of gender markers on birth certificates for any reason, equity jurisprudence provides the remedy to consider Mother’s request on Child’s behalf.
“For all of these reasons, I respectfully dissent,” he wrote. “I would find that the trial court’s decision to deny Mother’s petition is clearly erroneous, and I would reverse and remand with instructions for the trial court to grant Mother’s petition.”
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