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Indiana Court of Appeals Clarifies Requirements for Changing Name and Gender Markers on Birth Certificates Involving Transgender Individuals - Family Law News

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Family Law News

Posted on: Aug 30, 2017

By Richard A. Mann and Molly E. Hendricks, both of Mann Law PC

In 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 Certificate 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.

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