INDIANAPOLIS, Ind. (WANE) – Before the age of two, the child preferred toys and dress typically associated with girls.
When she learned to talk, she became adamant she was a girl.
By the time she turned four, she told her longtime speech and language pathologist that even though she was born with male physiology, she was a girl inside.
The child’s birth certificate, though, says otherwise.
And her mother’s unsuccessful attempts to change that through the Allen County court system is at the heart of a ruling by the Indiana Court of Appeals where judges were split on whether that could even be done in Indiana.
It’s the second time in less than a year appellate judges have handled changing gender markers on the birth certificates of minors, and the new ruling may have called into question one the court made back in 2014 concerning adults who want to do the same.
Now, judges with the court of appeals have called on the Indiana State Supreme Court and General Assembly to tackle an issue of transgender rights.
“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,” wrote Appeals Judge Robert Altice Jr. in his opinion on the case. “In my view, the mechanism for such a change, no matter how vital for certain members of our society, must be crafted by the General Assembly.”
In its ruling earlier this week, the court of appeals affirmed by a vote of 2-1 that Allen Circuit Judge Wendy Davis was right last year to deny the mother’s request to change her then 8-year-old child’s gender marker on her birth certificate.
It had been the second time the child’s mother sought such a change through the court system.
Her first unsuccessful attempt came when her daughter was 7-years-old.
While her daughter attended school as a girl, and school officials were supportive, she was excluded from using the girls’ locker room and facilities which the mother believed “would negatively impact Child’s social engagement and her self-esteem,” according to court records.
She testified in front of Judge Thomas Felts at the time that her child was female at her core and it was “not playing acting, it’s not going to change,” according to court transcripts.
Felts denied her request.
The woman, though, took her case up to the court of appeals, arguing that Felts did not take into account the best interest of her child. The appellate judges in that case sided with her.
They remanded her request back to the Allen Circuit Court – with a new judge – citing that any presiding judges should look at the issue in light of “what is in the best interest of a child” in determining such a change.
The mother presented evidence in front of Davis which included instances of difficulty her daughter faced at school – at times being outed by other children or being excluded from activities – as well as testimony from her daughter’s medical providers, one of which diagnosed the child with gender dysphoria.
“While (Child) has the full support of her family, her legal gender marker of ‘male’ has created difficulties for her and distress in certain school situations and in medical settings,'” wrote licensed clinical psychologist Dr. Kelly Donahue, who evaluated the girl and is also co-director of the Riley Hospital for Children’s Gender Health Program.
“I believe the family’s request to legally change (Child’s) gender marker to ‘female’ is in the best interest of the child at this time and will likely serve to protect her from additional future harm,” Donahue wrote.
Davis acknowledged that the child “presents like a girl” and that she would “have otherwise thought that she was a girl,” according to court transcripts. She also called the mother a “really good parent,” but still denied the request.
Davis cited the girl’s young age and the mother’s wish as “a very loving and caring parent” to be based “more on a mother’s speculation and future worry than on current conditions” as reasons for the denial.
In siding with Davis and writing the appellate court’s plurality decision, Judge Altice cited a state statute that was designed to be used for DNA testing to establish the paternity of a child and put a the proper name of that child’s name on a birth certificate.
Mainly, it was to change a birth certificate that did not have the right parent listed.
The court of appeals, though, has allowed that statute to permit individuals – first adults and then minor children – to petition for gender marker changes on birth certificates beginning with a case in 2014, according to court records.
“I cannot overlook the fact that this court made an improper lane change beginning in 2014,” Altice wrote in his opinion. “This went far beyond the plain language and clear intent of (the statute), a statute which has not been amended by the legislature since 1995, and improperly ventured into legislating.”
That’s when he called on the state Supreme Court and General Assembly to make a decision on the topic.
In concurring with Altice, Judge Mark L. Bailey said he agreed the statute does not provide trail courts with the authority to order a change of a gender marker on the birth certificate of a child.
In a previous opinion, Bailey felt the state statute clearing the way for changes in birth certificates offered enough flexibility for the courts to allow such changes, but he had also wrote at the time he encouraged the General Assembly to clarify the issue.
“At the time of offering that lead opinion, I hoped that our Legislature would hasten to address ender issues,” Bailey wrote. “That has not happened.”
In a dissenting opinion, Judge Paul Mathias cited the court’s previous decision to kick the case back to the Allen Circuit Court and asking a judge to consider the best interests of the child and wrote:
“In reviewing the merits of this appeal, I would hold that the trial court’s judgment in denying Mother’s petition is clearly erroneous.”
Mathias also wrote that the court is looking at issues that affect, as of now, roughly 38,000 Hoosiers who identify as transgender.
And while this past legislative session focused on banning transgender girls from competing with girls in sports, nothing has been done to address what the Court of Appeals has now touched on twice in less than a year.
“Therefore, and this fact is critical to this issue and to this appeal, there is no statute in effect that even speaks to, let alone covers, the issue before us in this case: the request of Child’s Parents to change the gender marker on Child’s birth certificate from male to female,” Mathias wrote.
Emphasis, like the others calling for other legislative bodies to get involved, were his own.
