Thoughtful Guidance From Skilled Attorneys

Can you have your Gender Designation Changed on Your Birth Certificate?

| Oct 22, 2016 | Firm News

            With the issue of sexual identity
becoming more prevalent, some question: How do I address the fact that the
gender reflected on my birth certificate does not truly represent my gender?  
            The Indiana Court of Appeals held in
In Re
Petition for Change of Birth Certificate
, 22 N.E.3d 707 (Ind. Ct. App.
2014)
, under Indiana Law found at I.C. 16-37-2-10, a court may order the Indiana State Board of
Health to change the gender markers on a person’s birth certificate.  The court shall grant a petition to amend the
birth certificate as long as an adequate showing has been made in support of
the petition, and the petition is filed in good faith and not for a fraudulent
or unlawful purpose.  The amount or type
of documentary evidence needed to establish an adequate showing for an
amendment of gender on a birth certificate is generally left to the court’s
discretion.  However, when a petitioner
can present “ample medical evidence regarding his gender transition, which
culminate[s] in sex reassignment surgery,” as well as an apparent display
of genuine desire “to have all identifying documents conform to his
current physical and social identity,” an adequate showing is assumed to
have been made. 
22 N.E.3d 707, 710.  A
court order stating the person’s name, date of birth, place of birth, and a
statement telling the Indiana State Department of Health (ISDH) to change the
original gender of the person on the person’s birth certificate is required
before the state department may make any additions to or corrections in a
certificate of birth.
In In Re
Petition for Change of Birth Certificate
,

Appellant was a transgender male who identified as a man, lived as a man, and
underwent extensive medical treatment for gender transition, including
testosterone treatment, ongoing psychotherapy to address longstanding gender
dysphoria, and gender reassignment surgery.
Subsequently, Appellant legally changed his name and gender mark on his
driver’s license, as well as with the Social Security Administration.[1]  His birth certificate was the only
significant life document left to be changed.
In 2013, Appellant filed a petition for change
of legal gender in Tippecanoe Circuit Court so that he could correct the gender
markers on his birth certificate from female to male.  Appellant stated in the petition that he had
transitioned successfully to a male role in society, in accordance with
accepted medical standards of care for gender dysphoria, and he desired to
change his gender designation so his birth record “may be more congruent with
his appearance and social role.”
22
N.E.3d 707,
708.  At Appellant’s hearing on the petition, he
presented evidence from his surgeon, therapist, and endocrinologist detailing
his transition.  Although the court
specifically found that the petition had been made in good faith and not for a
fraudulent or unlawful purpose, the trial court denied the petition based upon
a perceived lack of authority to grant such a request.  The Court of Appeals of Indiana reversed,
holding that the trial court erred in denying the petition.  On remand, the Court of Appeals directed the
trial court to grant Appellant’s petition and issue an order directing the ISDH
to amend Appellant’s birth certificate to reflect his male gender.
Before 2014, this issue had never been
addressed in the Court of Appeals of Indiana.
However, “the amendment of a birth certificate with respect to
gender [was] not novel.” 
22 N.E.3d 707, 709.  At
the time forty-seven states, Indiana included, allowed gender reclassification
on birth certificates.  “Twenty-eight
of those states specifically authorize gender reclassification by statute or
administrative ruling, while the other nineteen have no written rule stating
that they allow sex designation change, but provide the change upon application
in practice.”  Id.
Petitioners seeking the same relief as the Appellant
in In Re Petition for Change of Birth
Certifica
te may
file with the court a petition for change of gender to have the gender marker
on their birth certificates amended by the ISDH.  The law that applies in Indiana is set forth
in I.C.§ 16-37-2-10(b), which states, “The state department may make additions
to or corrections in a certificate of birth on receipt of adequate documentary
evidence.”  Similar to the need for a
court-order under
I.C. 34-28-2-2 for an individual to obtain an amendment to
the name on a birth certificate (
In re
Resnover
, 979
N.E.2d 668
(Ind.
Ct. App. 2012)), the ISDH’s official process (as stated in their Registrar’s
manual) requires a court order to establish adequate documentary evidence for
an amendment of gender on a birth certificate.
Such a court order must state the person’s name, date, place of birth,
and must tell the ISDH to change the original gender of the person on the
person’s birth certificate.  The ISDH
Vital Records office will accept any court ordered gender change from any valid
court in the United States.
As the Court of Appeals of Indiana made clear
in its opinion, I.C. § 16-37-2-10 does not expressly limit a court’s authority
regarding gender amendments of birth certificates, or impliedly provide
otherwise (in the statute or elsewhere).
Without specific guidance in the statute, the Court of Appeals has
firmly concluded that the ultimate focus should be based upon whether the
petition is made in good faith and not for a fraudulent or unlawful
purpose.  The amount or type of documentary
evidence needed to establish an adequate showing for an amendment of gender on
a birth certificate is generally left to the court’s discretion.  However, where a petitioner can present ample
medical evidence regarding his or her gender transition, which culminates in
sex-reassignment surgery, as well as an apparent display of genuine desire to
have all identifying documents conform to his or her current physical and
social identity, there is no question that an adequate showing has been made in
support of a petition for change of gender and a trial court should grant said
petition for the ISDH to make corrections in the certificate of birth.
            While
the petitioner in the controlling case had substantial evidence of his
commitment to being properly identified, the Appellate Court found that the
trial court’s inherent authority along with the statute gives trial courts the
authority to grant petitions for change of gender as long as the petition is
filed in good faith and not for a fraudulent or unlawful purpose, and an
adequate showing has been made in support of the petition.  The court order must provide the individual’s
name, date, place of birth, a statement telling the ISDH to change the original
gender of the individual on the person’s birth certificate before the state
department may make any additions to or corrections in a certificate of birth.
Prepared by Alexandra Miller and Richard A. Mann of Mann Law, P.C. Attorneys at Law, www.rmannlawoffice.com
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This blog does not constitute legal advice nor does it establish
an attorney client relationship.  This is
for general information purposes as in most legal situations the facts and
terms of an agreement between the parties can affect the result.

 



 

[1] The Social Security Administration’s (SSA) new
policy for individuals seeking to change their gender designation in their
Social Security records allows individuals to submit, among other things, an
amended birth certificate with the new sex, a court order directing legal
recognition of the change of sex, or a physician’s verified statement that “the
individual has had appropriate clinical treatment for gender transition.”