Groups Ask Supreme Court, Legislature To Weigh In On Gender Marker Case

By Whitney Downard

The Indiana Court of Appeals is divided over changing a child’s birth certificate gender marker. Now, a group of outside organizations want clarity.

The case revolves around a transgender girl whose mother filed — back in 2019 — to change her gender marker to female to allow her to fully participate in school. The girl was 7 years old at the time.

“We remain a divided court on this issue without guidance from our Supreme Court or any action from the General Assembly, the body that is responsible for legislating a remedy, if any, in this context,” the May 2 opinion from Indiana Court of Appeals Judge Robert L. Altice, Jr. said. Judge L. Mark Bailey concurred.

The three-member panel was divided into two camps, with the majority arguing the court didn’t have the authority to change the gender marker while the minority, Judge Paul D. Mathias, believed the court could.

“There is simply no doubt that, as an independent branch of government, and in the absence of a statute to the contrary, the judiciary has the inherent authority to hear claims for relief in equity,” Mathias said.

Both camps agreed that someone — whether the Indiana Supreme Court or the General Assembly — needed to clarify the issue.

Attorney General Todd Rokita jumped into the fray on Friday, urging courts to reject the request for changes “to reflect individuals’ self-perceived gender identities” in a news release.

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

Case background

According to the filings, the child started identifying as a girl at the age of two and told her speech and language pathologist at the age of four that, despite her “boy parts, she was a girl inside.” The child avoided using the boys’ restroom and had accidents nearly daily.

A licensed clinical psychologist and the co-director of the Riley Hospital for Children Gender Health Program diagnosed her with gender dysphoria.

By first grade, the child presented as female at all times and used female pronouns. Her school, while supportive, said the child must remain listed as male in school records because of the birth certificate gender marker.

That prompted the mother to file a request in the courts to change her child’s gender marker.

The first judge, who rejected the gender marker change, observed that the child “had not been the victim of any hate crimes and the issues she had encountered, though ‘difficult,’ had not been ‘showstoppers right now.’”

That judge argued that trial courts didn’t have the authority to change the gender marker of a birth certificate. The mother filed again in 2020 but the second trial court said it didn’t think the change would be in the child’s best interest.

The mother appealed, but judges in the Court of Appeals agreed with the first denial — saying they didn’t have the authority to change it.

Judge Mathias’ dissent estimated that roughly 38,000 transgender Hoosiers and 306,000 LGBTQIA+ Hoosiers lived in the state and allowing the change would have a wide-ranging impact.

“Our judiciary has the constitutional role and the inherent, equitable authority to hear a claim for relief from a wrong and to grant relief from that wrong so long as we are not barred by statute from doing so,” Mathias wrote.

Rokita argues against rights for transgender Hoosiers

The Attorney General’s filing, authored by Solicitor General Thomas M. Fisher, pushed for a transfer to the Indiana Supreme Court but said courts ultimately lacked authority to order a change on a birth certificate’s gender marker.

The filing misgendered — used the wrong pronouns — for another case and used definitions from the Merriam-Webster Dictionary for sex and “gender identity.”

“Sex is a function of anatomy and biology, as reflected in a person’s genitalia, reproductive organs and chromosomes,” Fisher’s filing said.“‘Gender identity,’ on the other hand, is a function of subjective understanding, sometimes accompanied by aspects of individual presentation, hormone therapy and surgery.”

The definitions used by the office didn’t include the thousands of intersex Hoosiers with a combination of sex characteristics, whose chromosomes don’t neatly comply with either sex, and sidestepped centuries of non-Western perceptions of gender identity that don’t match the male-female binary.

 “While popular culture often elides the two concepts, they have distinct meanings, and no basis exists for inferring that the Indiana Code treats them as synonymous. The statutory requirement that a birth certificate record ‘sex’ precludes a petition asking to record gender identity instead,” Fisher’s filing concluded.

Groups in support of the transgender girl

GenderNexus, a non-profit offering social support, referrals to legal resources and assistance in changing gender markers, joined the Indiana Youth Group, which serves LGBTQ+ youth, to file an amicus brief advocating for transfer.

The inability to change one’s gender marker on their birth certificate would expose transgender children and adults to potential violence or trauma and violate their right to privacy, the groups wrote. 

“It runs counter to Indiana’s preferences to respect the autonomy of its citizens and to allow people the freedom to to make their own, most personal decisions. The gravity of the impact to transgender Hoosiers of all ages cannot be overstated,” the brief said.

The organizations said mental health harm — including discrimination and harassment — and physical harm increased for transgender people whose legal documents didn’t match their gender. For some, it complicated their ability to work or attend school.

Research reports that transgender people are nine times more likely to attempt suicide than the general population. About 40% report attempting suicide in their lifetime, according to the National Center for Transgender Equality.

The Trevor Project Survey found that mental health risks decreased when transgender people had access to gender-affirming spaces, which are sometimes only available when someone’s legal documents have the correct gender marker.

“Life is already challenging enough for transgender people. If they are no longer permitted to change their gender markers on their birth certificates, things will only get harder – an outcome that doesn’t serve anyone’s best interests,” the brief concluded.

Two doctors specializing in adolescent health at Riley Children’s Hospital’s Gender Health Program, Dennis Fortenberry and Eric Meininger, also filed an amicus brief in support of the child.

“Without proper care and support, children and adolescents with gender dysphoria are at increased risk of depression, suicide, sexually transmitted diseases and physical, emotional and sexual abuse. The Gender Health Program at Riley strives to prevent these problems and promote the well-being of children and adolescents.”

They said the decision not to change the child’s gender marker conflicted with “sound clinical practices,” and allowing future courts to do the same exposed transgender minors to “unnecessary physical risks.”

“Having the correct gender marker identification is of utmost importance to pediatric patients experiencing gender dysphoria and restrictions on the ability to obtain gender marker changes present real and significant harms,” the doctors said.

Courts previously determined that they had the authority to change an adult’s gender marker but this case, with a minor, threatens that precedent, should the Supreme Court or General Assembly decide otherwise.

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