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Indiana Court Clarifies Transgender Individual’s Birth Certficate Process

On Behalf of | Aug 15, 2017 | Firm News

Indiana Court of Appeals Clarifies Requirements for Changing Name and Gender
Markers on Birth Certificates Involving Transgender People

re the Name Change of A.L. and In re the Name Change of L.S., 79A02-1703-MI-473

involved two (2) people A.L. and L.S. who wanted to legally change their name
as well as their gender markers (i.e. the gender designation) on their
respective birth certificates.  Both had
been living as men and working with medical and counseling personnel as they
transitioned. Per Indiana law, the intent to change one’s name must be
published in a newspaper.  This enables
creditors and other parties to locate the new name. 

A.L. filed for a name
change and gender marker change in May 2016. 
The trial court denied his petition to change his gender marker because
he did not publish his intent to do so. 
The court was following the logic that if publication was not required,
many people would change their gender markers to avoid creditors and “other
aggrieved parties,” and should thus follow the same publication requirements of
a name change. 

L.S. filed a petition for
a name change and a gender marker change in September 2016, but requested a
waiver of publication and a sealed record. 
He also requested an exclusion of confidential information under
Administrative Rule 9.   Administrative Rule 9 “governs public access
to, and confidentiality of, Court Records.” 
This rule “attempts to balance competing interests and recognizes that
unrestricted access to certain information in Court Records could result in an
unwarranted invasion of personal privacy or unduly increase the risk of injury
to individuals and businesses.”  L.S.
submitted evidence that transgender individuals were unduly subjected to
violence and homicide, LGBT people are the most likely minority to experience
hate crimes in the US, personal hate crime experiences and beliefs, and
submitted statistics on the harassment, mistreatment, and murder of
transgenders in 2016. 

However, the trial court
denied his petition and ordered L.S. to publish his intent to change his name
and gender.  The trial court acknowledged
that transgenders did experience a disproportionate amount of violence;
however, it also found that it did not establish that he had been subjected to
specific threats or violence that a public case would make worse. 

L.S. filed for
interlocutory appeal and A.L. filed for appeal, and the cases were consolidated
into one case.  The Indiana Court of
Appeals noted that there is no statute requiring publication of an intent to
change a gender marker and that the trial court applied the wrong
standard.  Judge Baker stated, “Unless
and until the General Assembly crafts specific requirements regarding either
gender marker changes, this Court’s common sense standard in Birth Certificate is the bar that must
be met.” The standard applied in Birth
is that a name change and gender marker change must be made in
good faith and not to commit fraud.  Both
A.L. and L.S. met this standard, and the trial courts were reversed and the
cases remanded with instructions to grant both petitions and to amend their
birth certificates with their new genders. 

The Court of Appeals
reversed the trial court and L.S. was also granted a sealed record under
Administrative Rule 9 because he established that publishing his intent placed
him at a greater risk by pointing to transgender violence in his community,
state, and nation. The appellate court found that not granting this petition
would be to essentially “out” a man as transgender. After considering all the
evidence L.S. had provided, the court stated:

Publication of his birth name and
new name would enable members of the general public to seek him out, placing
him at a significant risk of harm. And in today’s day and age, information that
is published in a newspaper is likely to be published on the Internet, where it
will remain in perpetuity, leaving L.S. at risk for the rest of his life. There
was no evidence in opposition to L.S.’s evidence. Under these circumstances, we
find that L.S. established that publication of notice of his petition for a
name change would create a significant risk of substantial harm to him. As a
result, the trial court should have granted his requests to seal the record and
waive publication pursuant to Administrative Rule 9.  At page
14 of slip opinion.

Prepared by Richard A. Mann and our paralegal Molly E. Hendricks,  Mann Law, P.C. Attorneys at Law,

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.