Altice, J.
Case Summary
Over two years ago, S.G.S. (Mother) petitioned the trial court for a change of the gender marker on the birth certificate of her then seven-year-old transgender daughter O.J.G.S. (Child), pursuant to Ind. Code § 16-37-2-10.1 This is Mother’s second appeal. In the first, she was part of a consolidated appeal with other parents challenging the denial of their respective petitions for a gender marker change. There, in Matter of A.B., 164 N.E.3d 167 (Ind. Ct. App. 2021), the majority held, as a matter of first impression, that a parent has the authority to petition for a gender marker change on their minor child’s birth certificate and determined that the appropriate standard to apply to such a petition is whether the proposed change is in the child’s best interests. Thus, the majority reversed and remanded with instructions for the trial court to address Mother’s petition in accordance with this standard. Judge Pyle dissented on the basis that I.C. § 16-37-2-10 does not provide trial courts with the authority to change the gender marker on a birth certificate.
On remand, with a new judge presiding, the trial court held another evidentiary hearing. Thereafter, the trial court denied the petition, concluding that it could not find that a gender marker change would be in Child’s best interests.
Mother appeals, once again, from the denial of the petition. She argues that the trial court abused its discretion because all of the evidence, including from Child’s medical providers, supported changing the gender marker on Child’s birth certificate to promote her safety and social and emotional well-being. Mother asserts that the court denied the petition based on its own assumptions about Child’s ability to know her gender identity at, as the court classified, such an “extremely young” age. Appellant’s Appendix at 10.
However well taken Mother’s arguments are regarding the trial court’s best interests determination, Judge Bailey and I do not reach them. For my part, I, like Judge Pyle, believe that I.C. § 16-37-2-10 has been improperly interpreted by this court on a number of occasions, including in the first appeal in this case. The statute simply does not grant courts of this state the authority to order a change of a gender marker on a birth certificate. Such a policy objective, no matter how worthy, must be sought through the deliberative legislative process rather than via piecemeal litigation with limited records and, most often, in the face of no adversarial process.
We affirm.
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Mother contends that the trial court abused its discretion by relying on its own assumptions rather than the evidence presented through her testimony and the letters from Child’s medical providers, particularly Dr. Donahue’s expert opinion. Mother asserts that the trial court’s order “thwarts the reasoned decision of a ‘very good parent’ instead of deferring to it. And it refuses relief that will increase [Child’s] safety and wellbeing when her current and future welfare should be the chief concern.” Appellant’s Brief at 11.
Mother’s arguments regarding Child’s best interests are compelling. But I cannot overlook the fact that this court made an improper lane change beginning in 2014, as highlighted by Judge Pyle’s dissent in this case’s first appeal.
Focusing on only the first clause of subsection (b) [of I.C. 16-37-2-10] and essentially ignoring the rest of the statute, panels of this court have held that Indiana courts have the statutory authority to grant requests for gender marker changes on birth certificates…
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The plurality opinion in In re H.S., handed down last August, put the issue squarely before the Indiana Supreme Court for the first time, as transfer had not been sought in any of the earlier gender marker cases. The Court, however, denied transfer in a vote of 3-2. 178 N.E.3d 798 (Ind. 2021) (order denying transfer with Chief Justice Rush and Justice David voting to grant). Thus, we remain a divided court on this issue without guidance from our Supreme Court or any action from the General Assembly, the body that is responsible for legislating a remedy, if any, in this context.
As recognized by Judge Pyle and, again, recently by our Supreme Court, “only the General Assembly can make the law.” WTHR-TV v. Hamilton Se. Sch., 178 N.E.3d 1187, 1192 (Ind. 2022). I agree with Judge Pyle that the plain language of I.C. § 16-37-2-10 “clearly applies only to the use of DNA testing or other documentary evidence in order to establish paternity for the purpose of including the proper parent’s name on a child’s birth certificate.” Matter of A.B., 164 N.E.3d at 172 (emphasis in original). Starting with In re Birth Certificate in 2014, this court essentially amended the statute in order to permit individuals – first adults and then parents on behalf of their minor children – to petition for gender marker changes. This went far beyond the plain language and clear intent of I.C. § 16-37-2-10, a statute which has not been amended by the legislature since 1995, and improperly ventured into legislating. See Abbott v. State, No. 21S-PL-347, slip op. at 12 (Ind. March 29, 2022) (“‘The job of this Court is to interpret, not legislate, the statutes before it,’ and ‘we exercise caution so as not to add words’ to a statute where none exist.”) (cleaned up) (quoting ESPN, Inc. v. Univ. of Notre Dame Police Dep’t, 62 N.E.3d 1192, 1200 (Ind. 2016) and West v. Off. of Ind. Sec’y of State, 54 N.E.3d 349, 353 (Ind. 2016)).
In light of this second plurality opinion in less than a year, 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. In my view, the mechanism for such a change, no matter how vital to certain members of our society, must be crafted by the General Assembly.
Affirmed. Bailey, J., concurs in result with opinion.
Mathias, J., dissents with opinion.
Bailey, Judge, concurring in result.
I agree with the contention of my colleague authoring the lead opinion that Indiana Code Section 16-37-2-10 does not provide trial courts with the authority to order the registrar of the division of vital statistics within the Indiana Department of Health to change the gender marker on a birth certificate of a child. I also agree with my dissenting colleague that a remedy for a harm should exist in these circumstances and that an equitable action has great appeal. That said, I write separately because I conclude than an equitable action cannot accomplish the desired objective where the best interests of a child must be demonstrated yet there is absolutely no statutory framework giving context to that requirement.
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Once a parent exercises parental authority to request a gender marker change – something not prohibited by statute – the trial court simply has no statutory framework for granting or denying the request. Because the State has an interest in the wellbeing of its minor citizenry, a parent would be unable to obtain equitable reformation of a birth certificate, in my opinion, absent a showing of the best interests of the child. Here, in particular, there is ample evidence, albeit without the benefit of notice to the State and an opportunity to be heard, that a gender marker change is consistent with the family’s wishes and the child’s best interests as understood by the child’s medical providers. Logically, a trial court would welcome an independent evaluation of a child’s psychological makeup and the sincerity of the child’s and parent’s expressed wishes. But we simply have no statutory context. At bottom, a parent has the right to ask, but no right to order the registrar to effect a change, absent an error in the designated sex of the child at the time of birth.
Absent a statutory framework, I vote to affirm the trial court’s denial of the petition for a gender marker change.
Mathias, Judge, dissenting.
This case is about “Child” who has known she is, and has expressed her fervent desire to be recognized as, a girl since she was two years old. She is not alone. She is part of a large population across the nation who find themselves to be Lesbian, Gay, Bisexual, Transgender, Queer or Questioning, Intersex, Asexual, or other (LGBTQIA+). Specifically, Child is transgender, and Child has many contemporaries in Indiana. According to the most recent statistics, over 38,000 Hoosiers identify as transgender, with an overall LGBTQIA+ population in Indiana of approximately 306,000 Hoosiers. [Footnote omittied.] This case, therefore, has very real application and consequences for many, many Hoosier families and their children.
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The majority’s analysis follows the dissent in In re A.B., 164 N.E.3d at 171-73 (Pyle, J., dissenting) and concludes, either expressly or in effect, that Indiana’s trial courts have no authority to act on a parent’s petition to change a child’s gender marker unless the General Assembly first enacts a statutory framework under which the judiciary may review such a petition. While I agree with my colleagues that a statutory framework would be ideal, and while I join them in calling for our General Assembly to provide that guidance, I cannot agree with my colleagues that Indiana’s judiciary is unable to act without a statutory framework in Child’s case. Further, in reviewing the merits of this appeal, I would hold that the trial court’s judgment denying Mother’s petition is clearly erroneous.
I. Indiana’s Judiciary Has the Power in Equity to Hear Petitions Such as Mother’s.
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To be sure, Hoosiers would be well served by having statutory authority that addresses petitions such as the one here. Statutory authority would provide uniformity across Indiana when considering how to handle such petitions, and, like my colleagues, I would also invite the General Assembly to consider how to make such petitions adversarial so that evidence may be properly tested as in a typical civil case. Finally, I would remind trial courts that they have the discretion and authority to appoint guardians ad litem to represent a child’s best interests in cases such as this.
But the absence of a statutory framework in this case does not render our judiciary incapable of hearing these petitions or granting relief thereon. Indeed, rather than acknowledging the constitutional and long-standing equity power of the Indiana judiciary to act in the absence of statutory authority to the contrary, the majority’s analysis here would require the Indiana judiciary to refrain from acting in the absence of statutory permission. This is the exact opposite of how the Indiana judiciary’s equity power operates. [Footnote omitted.] Our judiciary has the constitutional role and the inherent, equitable authority to hear a claim for relief from a wrong and to grant relief from that wrong so long as we are not barred by statute from doing so. See State ex. rel. Root, 289 N.E.2d at 507; Ritter, 38 N.E.2d at 1000. With the greatest respect for my colleagues, their plurality analysis is not an exercise of deference to our legislature; it is an abdication from the judiciary’s constitutional obligation to be open to all claims of injury. Accordingly, I cannot join either of their plurality opinions, and I would review the trial court’s judgment on the merits.
In the end, we are left with Child, and many other Hoosier children like Child, with no remedy for the condition in which they find themselves through no fault of their own. It does not need to be this way. Unless and until the General Assembly and Governor create a fair resolution structure, or clearly forbid any change of gender markers on birth certificates for any reason, equity jurisprudence provides the remedy to consider Mother’s request on Child’s behalf.
For all of these reasons, I respectfully dissent. I would find that the trial court’s decision to deny Mother’s petition is clearly erroneous, and I would reverse and remand with instructions for the trial court to grant Mother’s petition.