In re RW Heilig

• Decision Date: 11 February 2003
• Docket Number: No. 38,38
• Citation: 816 A.2d 68,372 Md. 692
• Parties: In the Matter of Robert Wright HEILIG Janet Heilig Wright.
• Court: Maryland Court of Appeals

816 A.2d 68

372 Md. 692

In the Matter of Robert Wright HEILIG

Janet Heilig Wright.

No. 38, Sept.Term, 2002.

Court of Appeals of Maryland.

February 11, 2003.

Alyson Dodi Meiselman (Phyllis Randolph Frye, on brief), North Potomac, for petitioner.

No argument for respondent.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL, and BATTAGLIA, JJ.

WILNER, Judge.

Petitioner was born in Pennsylvania in 1948. His birth certificate, issued by the Department of Health of that State, records his name as Robert Wright Heilig and his sex as male.

In March, 2001, Mr. Heilig filed a petition in the Circuit Court for Montgomery County, in which he alleged that he was then a Maryland resident and that he was "transitioning from male to female." Invoking the equitable jurisdiction of the court, he asked for an order that would change his name to Janet Heilig Wright and change his "sexual identity" designation from male to female. He noted in his petition the existence of Maryland Code, § 4-214(b)(5) of the Health-General Article, which directs the Secretary of Health and Mental Hygiene, upon receipt of a court order indicating that the sex of an individual born in Maryland "has been changed by surgical procedure," to amend that person's Maryland birth certificate accordingly, but he did not ask the court to order the alteration or amendment of his Pennsylvania birth certificate or, indeed, of any other document.

No answer or opposition of any kind was filed to the petition. Nonetheless, although ultimately entering an order that changed petitioner's name, the court refused to enter an order changing his sexual identity, concluding that (1) gender had physical manifestations that were not subject to modification, and (2) there was no authority for the court to enter such an order. The effect of the order was to give petitioner a woman's name but to retain his official gender as male. Petitioner did not contest the change in name but appealed the part of the judgment denying his request for recognition of his change in gender.

The Court of Special Appeals affirmed that decision, on at least three alternate grounds. First, although the petition was certainly not filed as such, the court treated the request for change of gender (although not the request for change of name) as necessarily being in the nature of an action for declaratory judgment. The court concluded, however, that, as no one contested the relief sought or challenged petitioner's claim or status, there was no immediate case or controversy and therefore no justiciable claim and, accordingly, no "jurisdiction" to enter declaratory relief. The court suggested that, if petitioner ever desired to marry a man and was denied a marriage license because of his gender, such a controversy might exist, but observed that none existed currently. Second, the intermediate appellate court held that, even if a justiciable claim had been presented, there was no statutory or common law basis for the kind of general gender-change order sought by petitioner. Section 4-214(b)(5) was inapplicable, as petitioner had not been born in Maryland, and the court could find no other authority for a court to change the designation of a person's sex or gender.

Though acknowledging that Maryland courts have equity jurisdiction to fashion remedies in the absence of an authorizing statute, the Court of Special Appeals concluded that such jurisdiction must be based on traditional, fundamental principles of the common law, and not on the broad concept of fairness alone. It rejected the notion that equitable jurisdiction in this case could be based on the principle that "equity will not suffer a wrong to be without a remedy." The petitioner, the court said, had not yet suffered a wrong.

Finally, the appellate court concluded that, even if the Circuit Court had equitable jurisdiction to grant the relief requested, such relief could not be granted to the petitioner because he had not shown that any purported change in his sexual status was in fact permanent. In default of such evidence, the court stated, the petitioner "has not established a strong case on the equities."

We granted certiorari to consider whether a Maryland Circuit Court has jurisdiction to grant the kind of relief sought by petitioner, and, if so, whether, on the record in this case, petitioner has established a right to that relief. We shall conclude that (1) jurisdiction does exist to determine and declare that a person has changed from one gender to another, (2) petitioner did not establish that he had sufficiently effected that change to be entitled to such a determination and declaration, but, (3) in the interest of justice, he should be permitted to offer further proof in this regard. We shall therefore direct that the case be remanded to the Circuit Court for further proceedings.

BACKGROUND

Perhaps because there was no opposition to the petition, the factual evidence in support of petitioner's request for a legal determination of gender change was rather skimpy. Attached to the petition was a copy of petitioner's birth certificate and two letters, each addressed "To Whom It May Concern." The first, from Dr. Michael Dempsey, an endocrinologist, stated that petitioner had been under his care for eighteen months as a "transgendered person," that her treatment consisted of female hormones and anti-androgens "designed to maintain her body chemistry and bring about anatomical changes within typical female norms," that the hormonal therapy had resulted in "hormonal castration," and that, in Dr. Dempsey's medical opinion, the gender designation on petitioner's driver's license and other documents should be changed to female to "accurately reflect both her appearance and the hormonal changes of her body."¹ The second letter, from a licensed social worker named Ellen Warren, stated that petitioner "is in psychotherapeutic treatment... as a transsexual woman," that it was Ms. Warren's professional opinion that petitioner's name and gender should be legally changed to reflect "her true gender identity, which is female," and that such change was "in accordance with the Standards of Care of the Harry Benjamin International Gender Dysphoria Association."

A court master, completely misconstruing the nature of the requested relief, placed in the court file and presumably sent to petitioner a document asking what authority a Maryland court had "over the Secretary of State for Pennsylvania" and for petitioner to "indicate how petition complies with Health-Gen Article § 4-214(b)(5)." Petitioner responded with a memorandum urging that, although the court had no authority over officials from other States, it did have equity jurisdiction to entertain petitions for change of name and gender filed by Maryland residents. Petitioner acknowledged that, because he was not born in Maryland and did not have a Maryland birth certificate, he was unable to take direct advantage of § 4-214(b)(5), but contended that, under equal protection principles, he was entitled to a determination from a court of competent jurisdiction that his gender had changed.

The hearing conducted by the Circuit Court dealt entirely with the issue of jurisdiction. No inquiry was made as to whether petitioner had undergone any sex reassignment surgery, whether and to what extent the hormonal therapy noted by Dr. Dempsey was permanent and irreversible, or what, if any, criteria had been generally accepted in the medical or legal community for determining when, if ever, a complete, permanent, and irreversible gender change has occurred. Although it seems clear from our research that this issue has been considered by courts and legislatures in other States and countries and by various non-judicial agencies, no evidence of the type just noted was presented to the Circuit Court. The only evidence presented in support of the petition, apart from the two letters attached to it, was a form letter from the Maryland Motor Vehicle Administration establishing that, upon review and recommendation by its Medical Advisory Board, the Administration does recognize "transitional gender status change" and will issue a new driver's license reflecting that change,² and a copy of the fifth version of the Standards of Care for Gender Identity Disorders adopted by the Harry Benjamin International Gender Dysphoria Association.

DISCUSSION

Transsexualism: Medical Aspects

One of the dominant themes of transsexualism,³ which, to some extent, is reflected in the two letters and the Standards offered by petitioner, is the belief that sex/gender is not, in all instances, a binary concept—all male or all female. See Leslie Pearlman, Transsexualism as Metaphor: The Collision of Sex and Gender, 43 BUFFALO L.REV. 835, 842-43 (1995); Julie A. Greenberg, Defining Male and Female: Intersexuality and the Collision Between Law and Biology, 41 ARIZ. L.REV. 265, 275-76 (1999). Transsexuals, as petitioner claims to be, seek to achieve recognition of the view that a person's gender/sex is determined by his or her personal sexual identity rather than by physical characteristics alone.⁴ Sex reassignment surgery, under that view, merely harmonizes a person's physical characteristics with that identity. See M.T. v. J.T., 140 N.J.Super. 77, 355 A.2d 204, 211 (App.Div.1976) ("In this case the transsexual's gender and genitalia are no longer discordant; they have been harmonized through medical treatment. Plaintiff has become physically and psychologically unified and fully capable of sexual activity consistent with her reconciled sexual attributes of gender and anatomy.").

This Opinion is not intended to be a medical text. Apart from our own incompetence to write such a text, it appears that some of the concepts that underlie the views espoused by transsexuals who seek recognition of gender change are the subject of debate, in both the medical and legal communities. The literature, in both...