Ohio Supreme Court Unable to Agree on Transgender Birth Certificate • Ohio Capital Journal

Ohio Supreme Court justices said state law does not allow transgender people to correct the “gender marker” on their birth certificates, but also acknowledged the court was unable to reach a decision in a case related to the topic.

The General Assembly, which has already passed laws banning gender-affirming care for minors and banning transgender students from participating in sports based on their gender identity, must decide whether further changes can be made to birth certificates, the justices said in response. on an appeal by a transgender woman who asked the court to overturn a county probate court’s refusal to change her birth certificate.

In 2021, Haley Emmeline Adelaide filed a petition in Clark County Probate Court to change her name and correct the gender listed on her birth certificate to reflect her female gender identity.

Adelaide told the probate court she realized she was a woman in the late 1970s, when she was four years old.

The court allowed her to change her name, but refused to correct her gender.

The 2nd District Court of Appeal upheld the probate court’s decision, leading to an appeal to the state’s highest court.

Ohio Supreme Court did not comply with the decision and Justice Patrick Fischer said he and the other justices were forced to “decline to consider the provisions of law taken up for review because we cannot reach a consensus on how this case should be decided.”

“This is an unfortunate day for the parties to this case and the people of Ohio as we are unable to reach a consensus,” Fischer wrote.

Because the state supreme court could not agree on a resolution, Adelaide’s birth certificate will remain as is and the probate court’s denial will stand.

“The lack of precedent from the Ohio Supreme Court leaves important questions of law unanswered and leaves in place the disparate approaches taken by district probate courts,” Chad Eggspuhler of the law firm Tucker Ellis LLP said in a joint statement with Equality. Ohio Legal Clinic, both represented Adelaide in the case.

Fisher, along with Judge Michael Donnelly and Judge Melody Stewart, noted that they would uphold the appeals court’s decision and therefore the probate court’s decision. Justices Jennifer Brunner, Joseph Deters, Patrick Devine and Chief Justice Sharon Kennedy said they would have overturned the appeals court’s decision, with Brunner saying she would have sent the case back to probate court and the others saying the case should be remanded to trial. Court of Appeal.

Several judges involved in the case decided to write separate statements of opinion on the case instead of a decision.

Adelaide case

Adelaide’s lawyers asked the high court to interpret the probate court’s authority to “correct” her birth certificate and the section of the Ohio Revised Code that mandates Ohio birth certificates, especially those on which the birth is “not recorded or has been lost or destroyed.” or was not properly and accurately recorded,” according to State Law.

Ohio residents who qualify under these conditions may file in the probate court in the county where they were born or where the person’s mother resided at the time of birth.

While he acknowledged that there were “many policy issues” in the case, Fischer said the court could not construe the law “in a manner inconsistent with its plain language to correct the alleged injustice.”

“The General Assembly must decide whether to create any additional opportunities for individuals born in Ohio to amend their birth records,” Fischer wrote.

However, the judge said the lower courts made the right decision. Fischer said the General Assembly specifically gave the probate court the power to make decisions about changing birth records. The probate judge may approve the changes “if satisfied that the facts are as stated.”

“The probate court denied Adelaide’s petition because her gender was correctly and accurately recorded at the time of her birth, as evidenced by her testimony that she was born with male anatomy,” Fisher wrote.

He rejected an argument made by the Equality Ohio Legal Clinic and cited by Brunner in her opinion in the case that the federal court had issued a permanent injunction saying Ohio “cannot constitutionally prohibit transgender citizens from correcting the information on their birth certificates ” “

“Decisions of the federal district courts are not binding on this court and have only persuasive effect,” Fischer wrote.

But in what Fisher called a “gross miscarriage of justice”, the court never gave Adelaide’s lawyers the opportunity to provide further information about the case to support their request for a judicial review.

Having such additional information could “ensure that all issues are addressed and that our decision does not have unintended consequences,” Fisher continued.

He agreed with fellow judges Donnelly and Stewart that the probate court “had no evidentiary basis and therefore no power to grant Adelaide’s application.”

According to Fisher, the evidence that may be required for a will will prove “the sex of the person at the time of birth,” so “the correction… will be limited to the circumstances and facts at the time of the person’s birth.”

In a separate opinion in the case, Donnelly agreed with Fisher, saying the court should have asked for more information to reach its conclusion, but in the absence of that, Donnelly also agreed that state law did not allow for the correction Adelaide sought.

“In short, a birth certificate is a snapshot of an event, a description of a moment as it was then understood,” Donnelly wrote.

In Deters’ dissenting opinion, joined by Chief Justice Kennedy and Justice Devine, he noted the lack of objection, adding that “no other person or entity has a legal interest that would be diminished by the granting of her application.”

“When there is no adverse interest, the court has no dissent,” Deters wrote.

Deters also said probate court decisions cannot be appealed because of their “unique statutory role.”

“Just as you cannot appeal a probate court’s decision about who to place on a park district’s board, you cannot appeal a probate court’s decision about whether to change the sex marker on a birth certificate,” Deters wrote.

In her own opinion, Brunner said one of the many questions the state Supreme Court is leaving unanswered in the case is whether to allow “the philosophy of individual judges from district to district to determine the scope of Ohio’s record correction law.” about birth.”

“People like Adelaide are victims of this fragmented decision we are making today,” Brunner wrote. “While it is the duty of this court to state what the law is, we have failed in that duty and refuse Adelaide and others who have similarly asked to give the government clarity on how to apply (state law) to such petitions.”

In arguing for the state’s interest in “maintaining and preserving correct birth records,” Fisher pointed not only to selective registration—in the case of military conscription, which applies only to males 18 to 25 years of age—but also to a recent law passed by the General Assembly , which bars transgender students from participating in sports teams that match their gender identity.

“It is believed that the state will have an interest in preserving the correct birth certificates to ensure proper enforcement of this law,” Fischer wrote.

Donnelly argued that there is precedent that the General Assembly can use to allow further changes to birth certificates, such as changes made due to adoption.

“He should enact legislation that creates a mechanism by which transgender people born in Ohio can request a change to the gender marker on their birth certificates to officially show who they identify as,” the judge wrote.