In re O.J.G.S., Court of Appeals Case No. 21A-MI-2096

• Docket Nº: Court of Appeals Case No. 21A-MI-2096
• Citation: 187 N.E.3d 324
• Case Date: May 02, 2022
• Court: Court of Appeals of Indiana

187 N.E.3d 324

IN RE: the Change of Gender of: O.J.G.S., A Minor,

S.G.S., Appellant.

Court of Appeals Case No. 21A-MI-2096

Court of Appeals of Indiana.

FILED May 2, 2022
Rehearing Denied June 14, 2022

Attorneys for Appellant: Kathleen Bensberg, Indianapolis, Indiana, Megan Stuart, Bloomington, Indiana

Altice, Judge.

Case Summary

1] 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.

[2] 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

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not find that a gender marker change would be in Child's best interests.

3] 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.

[4] 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.

[5] We affirm.

Facts & Procedural History

[6] Child is blessed with a loving, well-intentioned, intact family, which includes five siblings and both parents. Child was born in February 2013 and was assigned male at birth. Mother and Father (Parents) began noticing, before the age of two, that Child preferred toys and dress typically associated with girls. After developing speech, Child became increasingly adamant that she was a girl and distressed when treated as a boy. By the age of four, Child expressed to her longtime speech and language pathologist that although she was born with boy parts, she was a girl inside.

[7] When Child started kindergarten, she was recognized as a girl at home but still presented and treated as a boy at school. Child often avoided using the bathroom at school because she did not feel comfortable in the boys’ bathroom. This resulted in her having nearly daily accidents at school. On one occasion when she went into the boys’ bathroom, she was yelled at and pushed by older boys and, when she broke down crying, was directed by a teacher to the girls’ bathroom. Child panicked and urinated on herself in front of others.

[8] Parents eventually sought medical advice to figure out how to address Child's gender identity issues. Their first step was discussing the matter with Dr. Thomas Lock with the Developmental Pediatrics Clinic at Riley Hospital for Children, a physician who had been working with the family for some time to address Child's diagnosis as being on the autism spectrum. Dr. Lock referred them to the Riley Hospital for Children Gender Health Program (the Gender Clinic). The family saw Kelly Donahue, PhD, HSPP, a licensed clinical psychologist and co-director of the Gender Clinic. Dr. Donahue evaluated Child in relation to her gender identity and diagnosed her with gender dysphoria.² In consultation with Dr. Donahue and the treatment team at the Gender Clinic, Parents decided, during Child's first grade year, to allow

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Child to present as female at all times and to use female pronouns in every aspect of her life. Although the school was supportive of Child upon learning that she was a transgender girl, it still required Child, due to her birth certificate, to remain listed as male in school records, which was the main impetus for Mother filing the instant petition on March 4, 2020.

9] The first evidentiary hearing was held on June 24, 2020. Thereafter, the trial court denied the petition without explanation. Mother successfully appealed, and the case was remanded for a consideration of Child's best interests. At the evidentiary hearing before a new judge on July 13, 2021, the trial court agreed to take the testimony from the 2020 hearing into evidence, as well as the letters submitted from three medical and mental health professionals. Mother also testified again at the second hearing. In addition to the facts set out above, Mother testified regarding Child:

She, one hundred percent, to her core, is female. It's who she is. I don't understand it. I don't understand the physiological side of it. I don't understand the medical side of it. I'm learning so much through her and working with doctors and what ... we need to do to support her. But she is confident in who she is. She doesn't feel bad when she steps out. She doesn't, like I said, she doesn't understand that people think transgender is negative. She kind of sees herself as a unicorn. She's amazing and something different and that's just how she was born. That's who she is.

Transcript at 18. Mother noted instances in which Child had been "outed" in Girl Scouts, which "devastated" Child, and while in waiting rooms for medical/dental appointments. Id. at 14. Additionally, without the requested gender marker change, Mother indicated that the school intended to exclude Child from using the girls’ locker room, which she believed would negatively impact Child's social engagement with peers and her self-esteem. Mother testified that Child wants the gender marker on her birth certificate changed "[m]ore than anything" and asks about it often. Id. at 19.

[10] Among the letters submitted to the court was one from Dr. Donahue, noting her diagnosis of Child with gender dysphoria and expressing support for the family's request to legally change Child's gender marker. Dr. Donahue explained:

Existing research demonstrates that transgender youth whose gender is affirmed through developmentally appropriate social (e.g., name or gender marker change) and/or medical interventions show more positive mental health outcomes. When transgender youth desire these interventions but cannot access them, they are [at] greater risk for negative mental health outcomes, including suicide. While [Child] has the full support of her family, her legal gender marker of "male" has created difficulties for her and distress in certain school situations and in medical settings. I believe the family's request to legally change [Child's] gender marker to "female" is in the best interest of the child at this time and will likely serve to protect her from additional future harm.

Appendix at 28.

[11] At the conclusion of the hearing, the trial court acknowledged that Child "presents like a girl" and that "I would have otherwise thought that she was a girl." Transcript at 29. While the trial court believed Mother to be "a really good parent," the court queried how a gender marker change for an eight-year-old, who had not yet reached puberty, would be in their best interests. Id. at 25. Further, the court observed that Child had not been the

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victim of any hate crimes and that the issues she had encountered, though "difficult," had not been "showstoppers right now." Id. at 29. After further dialog with Mother's counsel, the trial court took the matter under advisement.

12] Later that week, on July 19, 2021, the trial court denied the petition. Among other things, the court found Child's age to be "extremely young" and Mother's wishes as a "very loving and caring parent" to be based "more on a mother's speculation and future worry than on current conditions." Appendix at 10. The court noted that Child is "loved and accepted" in her home and thriving in Girl Scouts (except for one incident with another child) and that the school is providing a private bathroom for Child to use to avoid any confusion with other children. Id. at 10-11. Ultimately, the trial court determined that it could not make a finding that granting the petition would be in Child's best interests.

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