Concluding that enforcing a statute requiring that transgender name changes be published would result in a dangerous “outing” of the applicants, a three-judge panel of the Indiana Court of Appeals unanimously reversed two rulings by the Tippecanoe Circuit Court. The panel, on August 10, ruled that the publication requirement should be waived.
The court also ruled that the circuit judge erred in requiring that an intent to seek a change of gender marker on a birth certificate, not specifically required by Indiana law, also be published.
State law provides that anybody applying for a name change must publish their intention to do so in a general circulation newspaper, but an administrative regulation gives courts discretion to waive that requirement if the applicant’s health or safety would be threatened. In such cases, court records related to the name change can also be sealed.
The August 10 ruling involves two applicants, identified by the court as A.L. and L.S., both transgender men seeking to change their official records.
In May 2016, A.L. filed a petition for a name change, having published his intent to do so in a newspaper, and the trial court granted his petition. He had been living as a man for two years at that point, according to the Court of Appeals opinion by Judge John Baker. At his name change hearing, A.L. asked to have his birth certificate’s gender marker changed. The judge instructed him to publish that intention and scheduled a subsequent hearing.
A.L. then hired a lawyer, who filed a motion arguing that the law does not require him to publish his gender marker change. The circuit court judge, however, rejected that motion, even though he acknowledged that A.L. was acting in good faith without any fraudulent intent and had presented evidence that “transgender individuals are disproportionately subject to violence based on their status as transgender individuals.” A.L. fell short in failing to show that he “is personally at increased risk for violence (other than as a general member of the transgender community),” the judge found.
Such specific evidence was necessary, the trial judge argued, because if a general waiver were applied, it could increase the potential for fraud “in that individuals might be able to seek multiple gender changes in attempts to avoid identification by creditors, governmental actors, or other aggrieved parties without those parties having an opportunity to object or even be aware of said changes.”
As a result, the judge went beyond the statutory requirement, in concluding that the public interest demands the publication of both name changes and gender identification changes. Even while conceding the burden imposed by “forc[ing] well-meaning and potentially vulnerable individuals to address intimate and personal issues central to their personal identity in the harsh public light of open court,” the judge asserted that this is common to anybody seeking “court intervention in the most personal areas of their lives.” He noted that “open” and “transparent” court proceedings are a preference “well established in American jurisprudence.”
L.S. filed his petition for change of name and gender last September in the same circuit court and encountered the same response. Having published no notice of his intentions, L.S. was rebuffed by the judge. According to Judge Baker’s opinion for the Court of Appeals, the trial judge repeated much the same arguments he had made in response to A.L.’s petition.
The two cases were consolidated for appeal, and the Court of Appeals totally rejected the trial judge’s reasoning.
First, the court pointed out that authority to change gender markers on birth certificates stemmed from its own 2014 ruling — not from Indiana law governing name changes — relying on a statute authorizing the state’s health department to “make additions to or corrections in a certificate of birth on receipt of adequate documentary evidence.” The 2014 Court of Appeals ruling noted that “the vast majority of states” allowed such changes.
“It was erroneous to create a requirement where none exists,” Baker wrote. So long as a request is made in good faith and without fraudulent or unlawful purpose — as was found to be true with both L.S. and A.L. — “no further requirements need to be met,” the Court of Appeals found.
Regarding the name change, the court said, the question was whether the trial court should have waived the statutory publication requirement.
“The rule seeks to balance, among other things, the risk of injury to individuals with the promotion of accessibility to court records as well as governmental transparency,” Baker wrote, factors that also apply to having a court record sealed.
Baker then summarized the evidence L.S. had presented about violence against transgender people, including the significant percentage who had responded to surveys showing harassment at the workplace and in school as well as physical assaults. L.S. also testified about a transgender friend who had been brutally assaulted on the street, and he pointed to the discrimination he himself faced in seeking a work internship because the way he was identified on his Social Security card did not “match” how he appeared. L.S. “testified that he believes that if information about his transgender status became public, he would be ‘at great risk of potential harm,’” according to Baker’s opinion.
Even though the trial judge considered this evidence credible, he denied the request to waive the publication requirement or seal the record because he found that L.S. had not specifically shown that there was an individualized risk to himself, as opposed to the generalized risk to the transgender community as a whole. The Court of Appeals, noting all the evidence that the trial judge had given credence to, disagreed with this conclusion.
“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.,” Baker wrote. “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.”
Sending the cases back to the Tippecanoe Circuit Court, the Court of Appeals ruled that L.S. should receive his name change without making public notice of it, that his case should be sealed, and that both petitioners should be allowed to have their birth certificates amended, again without public notice.
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