Bailey, J.
Case Summary
L.S. (“Mother”) petitioned the trial court for a change of the name and gender marker on the birth certificate of her fifteen-year-old transgender son H.S., pursuant to Indiana Code Section 34-28-2-1 and Indiana Code Section 16-37-2- 10, respectively. [Footnote omitted.] The trial court granted the request for a name change and denied the request for a gender marker change, finding that there was insufficient evidence of the child’s best interests. L.S. appeals, presenting the sole issue of whether the denial was contrary to law. We affirm.
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Subsequent to this line of cases, wherein we clearly stated that an adult seeking a gender marker change bears only the burden of showing good faith, we were presented with a consolidated appeal brought by parents who each had been denied a change of gender marker as set forth on their child’s birth certificate. Matter of A.B., 164 N.E.3d 167 (Ind. Ct. App. 2021). The threshold question to be answered was “whether a parent has the authority to ask a court to amend the gender marker on a minor child’s birth certificate.” Id. at 169. We answered this question in the affirmative, observing that “[t]he fundamental right of parents to make important decisions for their minor children is reflected in a variety of statutes” and that the language of Indiana Code Section 16-37-2- 10(b) is “broad.” Id. at 169-70.
The Court next addressed the matter of the appropriate standard to be applied when considering a parental petition for a gender marker change, rejecting the parents’ contention that the standard was that applicable to an adult petition, that is, “whether the petition was filed in good faith.” Id. at 170. The Court concluded that the appropriate standard is whether the change is in the child’s best interests and directed that a trial court “may consider the same factors as for a name change.” Id. at 171. The factors for a name change are those set forth in Indiana Code Section 31-17-2-8, governing child custody determinations. Id. at 171. The Court remanded with instructions to the trial court to address the petitions in accordance with the best interests standard. Id.
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To date, the Legislature has not spoken to this issue and we are again asked to expand upon the generic language for birth certificate alteration found in Indiana Code Section 16-37-2-10-(b)….
It is necessary to examine the statutory provision for alteration to a birth certificate with the objective of neither invading the legislative domain nor that of a fit parent. [Footnote omitted.] The generic statutory provision has served as a vehicle with enough flexibility to permit its ready application to the gender marker choice of a competent adult. Nevertheless, the statutory flexibility applicable to adults has reached a point of inelasticity where the issue concerns children. And assuming the statute has application when a parent seeks a change of gender marker for a child, its streamlined (essentially unquestioned) application to a child would ignore the State’s interest in the child’s wellbeing. In my view, any application to a child must be accompanied by a best interests analysis.
Clearly, the totality of the child’s medical history is highly relevant. But here the parents decided to forego expert testimony or the proffer of any relevant medical records, in favor of their conclusory testimony prompted by their teenager’s relatively recent disclosure. [Footnote: I acknowledge that neither expert medical testimony nor medical records is a statutory prerequisite for a gender marker change. However, as a practical matter, it could be crucial to the trial court’s decision-making process where a child is involved. The trial court bears the heavy burden of making a best interests determination without a legislative framework and without party opposition to any proffered evidence. The language of Indiana Code Section 16-37-2-10(b), although reasonably interpreted to encompass an adult’s petition for a gender marker change, does not prescribe how a parent seeking a gender marker change for his or her child is to show that the change at that point in the child’s development is in the child’s best interests. In general, the adversarial nature of proceedings is designed to test the veracity of proffered evidence. Here, there is no adverse party.] Indeed, the trial court aptly pointed out that there was no authenticated document of any sort admitted into evidence. Under these circumstances, I cannot say that the trial court misapplied the law.
Conclusion
The trial court did not clearly err by denying Mother’s petition for a gender marker change for H.S.
Affirmed. Pyle, J., concurs in result with opinion.
Crone, J., dissents with opinion.
Pyle, Judge, concurring in result with opinion.
I concur in the decision to affirm the trial court’s judgment denying the petition requesting a gender marker change on the birth certificate. As summarized in this opinion and more fully explained in Matter of A.B., 164 N.E.3d 167, 171 (Ind. Ct. App. 2021) (J. Pyle dissenting), I do not believe statutory authority exists for the judiciary to invent a procedure for changing a minor child’s gender marker to reflect gender identity and presentation. [Footnote omitted.] Further, a fundamental right has not been established allowing the judiciary to grant the remedy sought in this case.
Crone, Judge, dissenting.
I agree with Judge Bailey’s conclusion that any application of Indiana Code Section 16-37-2-10 to a child “must be accompanied by a best interests analysis” as set forth in Indiana Code Section 31-17-2-8. Slip op. at 8. I also agree with his statement that “the totality of the child’s medical history is highly relevant” in assessing the child’s best interests in this situation. Id. But I respectfully disagree with his assertion that H.S.’s parents proffered no relevant medical records and that their testimony was too conclusory to sustain their burden.
In its order, the trial court was dismissive of fifteen-year-old H.S.’s age, stating that “[a]ny parent who has raised a teenager is well-aware that their thoughts, opinions, and wishes change rapidly. Teenagers are full of hormones and emotions which often results in impulsive, short-sighted decisions. At this age, teenagers are also easily influenced by peer pressure, trends, and pop culture.” Appealed Order at 7.8 These are not specific findings based on the evidence actually presented to the court; these are blatant and biased overgeneralizations. There is no indication that H.S.’s decision to change his gender via a medical procedure was impulsive or the result of peer pressure or pop culture influences. According to Mother, it took H.S. “a year” before he felt “ready” to tell her and Father about his desire to transition. Tr. Vol. 2 at 17. H.S. has received counseling for gender identity issues, and both Mother and Father are supportive of his course of action, testifying that he seems “happier” now. Id. at 21, 13.
And yet with respect to the parents’ wishes, the trial court held their supportiveness against them,…
It should go without saying that H.S.’s parents, who have known him since his birth, are infinitely more capable than the trial court of judging what “happiness” means to their child and what is in his long-term best interests with respect to his gender identity….
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Recent history offers plenty of unfortunate examples of legal, governmental, and social intolerance (including violence) toward transgender persons. In fact, Mother testified that she withdrew H.S. from the local public school because of bullying based on his “position as a transgender student[.]” Id. at 7. I cannot fault Mother and Father for being concerned about the difficulties and indignities that might arise when H.S. is required to present (or revise) identification documents that do not reflect his gender. In sum, the trial court was wrong to disregard the wishes of H.S.’s parents as they relate to his best interests.
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The trial court found that “no admissible evidence” was presented on H.S.’s mental and physical health, which obviously is not the case because the court actually admitted the testimony of H.S. and his parents, as well as the letters from H.S.’s physician and mental health counselor. Judge Bailey deems the parents’ testimony “conclusory,” but I respectfully disagree. We must review the trial court’s ruling based on the record before us, and I believe that the record is more than sufficient to support the granting of Mother’s petition to change the gender marker on H.S.’s birth certificate. Consequently, I would reverse and remand with instructions to grant the requested relief, as the failure to do so was a blatant abuse of the trial court’s discretion. [Footnote omitted.]