In re A.B.

• Court: Court of Appeals of Indiana
• Citation: 164 N.E.3d 167
• Docket Number: Court of Appeals Case No. 20A-MI-1580
• Parties: In the MATTER OF the Change of Gender Identification of A.B. In the Matter of the Change of Gender Identification of O.S. In the Matter of the Change of Name and Gender Identification of C.V. (f/k/a V.V.)
• Decision Date: 24 February 2021

164 N.E.3d 167

In the MATTER OF the Change of Gender Identification of A.B.

In the Matter of the Change of Gender Identification of O.S.

In the Matter of the Change of Name and Gender Identification of C.V. (f/k/a V.V.)

Court of Appeals Case No. 20A-MI-1580

Court of Appeals of Indiana.

FILED February 24, 2021

Attorneys for Appellants: Megan Stuart, Indiana Legal Services, Inc., Bloomington, Indiana, Kathleen Cullum, Indiana Legal Services, Inc., Indianapolis, Indiana, Katharine Williams, Indiana Legal Services, Inc., South Bend, Indiana

Friedlander, Senior Judge.

1] In this consolidated appeal, three parents appeal the denials of their petitions to change their children's gender markers as set forth on the children's birth certificates. We reverse and remand with instructions.

[2] A.B.’s mother petitioned the trial court to change the gender marker on A.B.’s birth certificate from male to female. At the time, A.B. was fourteen years old. A.B. was listed on her birth certificate as male, but she identified as female from a young age. At age nine, she transitioned to presenting a female identity. A.B. had previously petitioned (through her mother) to change the name on her birth certificate to reflect her new identity, and the petition was granted. A.B. has been in counseling since the age of nine and has undergone surgical procedures to experience puberty as a female rather than a male. The trial court held an evidentiary hearing, during which A.B.’s mother explained, "[A.B.] lives completely as a female." A.B. Tr. Vol. 2, p. 6. The court expressed "hesitat[ion]" about "changing something like this for a child who's not of age of majority, um,

[164 N.E.3d 169

potentially could change back, could change mind [sic]." Id. at 16. The court subsequently denied the petition without explanation.

3] In O.S.’s case, her mother petitioned for a change of the gender marker on O.S.’s birth certificate from male to female. O.S. was seven years old. She has identified as female since the age of five and has been under the care of a psychologist who specializes in pediatrics and gender health. The trial court held an evidentiary hearing, and O.S.’s mother explained, "[being female] is who O.S. is at her core. Um, it's not play acting, it's not going to change." O.S. Tr. Vol. 2, p. 13. The court subsequently denied the petition without explanation.

[4] Finally, in C.V.’s case, C.V.’s father petitioned to change the following on C.V.’s birth certificate: (1) the name, from V.V. to C.V.; and (2) the gender marker, from female to male. C.V.’s father stated in the petition that the changes were necessary to "accurately reflect the child's gender identity and presentation." Appellants’ App. p. 18. At the time, C.V. was sixteen years old.

[5] The trial court held an evidentiary hearing. During the hearing, C.V. testified that he wanted his gender marker changed to match his gender identity. After the hearing, the court granted C.V.’s father's request to change the name on C.V.’s birth certificate. The court denied the request to change C.V.’s gender marker. The court found that C.V.’s father filed the petition in good faith, but "[p]arents may not consent to a gender change for their children." Appellants’ App. p. 14.

[6] All three parents appealed. The Court consolidated the appeals on C.V.’s motion.

[7] The parents argue the trial courts erred in denying their petitions, claiming: (1) parents have the authority to seek a gender marker change on their children's birth certificates; and (2) they established they are entitled to relief. This appeal presents questions of law, which we review de novo. In re A.L. , 81 N.E.3d 283 (Ind. Ct. App. 2017).

[8] We first address whether the parents were allowed to seek the gender marker changes. The Indiana Department of Health "may make additions to or corrections in a certificate of birth on receipt of adequate documentary evidence...." Ind. Code § 16-37-2-10(b) (1995). The documentary evidence may include court orders. See In re Petition for Change of Birth Certificate , 22 N.E.3d 707 (Ind. Ct. App. 2014) (concluding a trial court has the authority to order a correction of a gender marker on an adult's birth certificate). The Indiana Bureau of Motor Vehicles expressly acknowledges that a birth certificate may be amended to show a change in a person's gender. 140 Ind. Admin. Code § 7-1.1-3(b)(1)(B) (2017). The question is whether a parent has the authority to ask a court to amend the gender marker on a minor child's birth certificate.

[9] "[T]he Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children." In re Adoption of O.R. , 16 N.E.3d 965, 972 (Ind. 2014). "A parent's interest in the care, custody, and control of his or her children is ‘perhaps the oldest of the fundamental liberty interests.’ " Id. (quoting Troxel v. Granville , 530 U.S. 57, 65, 120 S. Ct. 2054, 2060, 147 L. Ed.

2d 49 (2000) ). It follows that parents have a "fundamental right" to make decisions concerning the care of their children. Troxel , 530 U.S. at 66, 120 S. Ct. at 2060.

[10] The fundamental right of parents to make important decisions for their minor children is reflected in a variety of statutes.

[164 N.E.3d 170

Parents may limit grandparents or other relatives’ contact with children, except in a few circumstances. See Ind. Code § 31-17-5-1 (1997) (setting forth circumstances in which grandparents have the right to request visitation with grandchildren). Parents may waive their child's constitutional rights (if the child concurs) in juvenile delinquency proceedings. See Ind. Code § 31-32-5-1 (1997) (establishing process for parental waiver of juvenile's rights). Parents may consent to a child's withdrawal from school (with the consent of the school's principal) if the child is between sixteen and eighteen years of age. See Ind. Code § 20-33-2-9 (2015) (setting forth the process for withdrawal). Parents may consent to their child working extended hours if the child is between sixteen and eighteen years of age. See Ind. Code §...