INDIANAPOLIS, Ind. (WANE) – Before the age of two, the child preferred toys and clothes usually associated with girls.
When she learned to speak, she became adamant been a girl.
When she was four, she told her longtime speech therapist that although she was born with a male physiology, she was a girl on the inside.
The child’s birth certificate, however, says otherwise.
And her mother’s failed attempts to change that through the Allen County court system are at the heart of an Indiana Court of Appeals decision where judges were split on whether that could even be done in Indiana.
It’s the second time in less than a year that appeals judges have dealt with changing gender markers on minors’ birth certificates, and the new ruling may have challenged the one the court made. in 2014 concerning adults who want to do the same.
Now, appeals court judges have asked the Supreme Court and the Indiana State General Assembly to address the issue of transgender rights.
“I urge the Supreme Court to rule on this case, which has divided this court and resulted, unfortunately, in unpredictability for petitioners who sincerely want a remedy,” wrote Appeals Judge Robert Altice Jr. in his opinion on the case. “In my view, the mechanism for such change, vital as it is for some members of our society, must be worked out by the General Assembly.”
In its decision earlier this week, the appeals court upheld by a 2-1 vote that Allen Circuit Judge Wendy Davis was right last year to deny the mother’s request to change the gender marker of her then 8-year-old child on her birth certificate. .
It was the second time the child’s mother had sought such a change through the court system.
Her first unsuccessful attempt was when her daughter was 7 years old.
While her daughter was attending school as a girl and school officials were supportive, she was barred from using girls’ locker rooms and facilities which the mother said “would have a negative impact on the child’s social engagement and self-esteem,” according to court records.
She testified before Judge Thomas Felts at the time that her child was a woman at heart and was “not playing games, that’s not going to change”, according to court transcripts.
Felts denied his request.
The woman, however, took her case to the appeals court, arguing that Felts failed to consider her child’s best interests. The appellate judges in that case sided with her.
They referred his request to the Allen Circuit Court – along with a new judge – citing that any presiding judge should consider the matter in light of “what is in the best interests of a child” to determine such a change.
The mother presented evidence before Davis that included instances of her daughter’s difficulties at school — sometimes being denounced by other children or excluded from activities — as well as testimony from her daughter’s medical providers, one of whom diagnosed the child with sex. dysphoria.
“While (the child) has the full support of his family, his legal gender marker of ‘masculine’ has created difficulty and distress for him in some school situations and in medical settings,” Dr Kelly wrote. Donahue, a licensed clinical psychologist, who assessed the girl and is also co-director of the Gender Health Program at Riley Children’s Hospital.
“I believe the family’s request to legally change (the child’s) gender marker to ‘female’ is in the child’s best interest at this time and will likely serve to protect her from further harm in the future. “, wrote Donahue.
Davis acknowledged that the child “presents as a girl” and that she “would otherwise have thought she was a girl,” according to court transcripts. She also called the mother a “very good parent”, but still refused the request.
Davis cited the girl’s young age and the mother’s wish as a ‘very loving and caring parent’ to be based ‘more on a mother’s future speculation and concern than current conditions’ as reasons. of the refusal.
Siding with Davis and writing the appeals court’s plurality decision, Judge Altice cited a state law designed to be used for DNA testing to establish a child’s paternity. and put that child’s proper name on a birth certificate.
This was primarily to alter a birth certificate that did not show the correct parent.
The appeals court, however, allowed this law to allow individuals – first adults, then minor children – to request gender marker changes on birth certificates starting with a case in 2014, according to court records.
“I cannot ignore the fact that this tribunal made an improper course change from 2014,” Altice wrote in her opinion. “It went well beyond the clear language and clear intent of (the law), a law that has not been amended by the legislature since 1995 and which wrongly ventured into legislation.”
It was then that he asked the Supreme Court and the State General Assembly to make a decision on the matter.
Agreeing with Altice, Judge Mark L. Bailey said he agreed that the law does not give trial courts the power to order a change of a sex marker on a person’s birth certificate. ‘a kid.
In a previous opinion, Bailey believed that the state law clearing the way for birth certificate changes provided enough flexibility for the courts to allow such changes, but he also wrote at the time he urged the General Assembly to clarify the issue.
“At the time of offering this primary opinion, I hoped that our legislature would hasten to address the issues of the ender,” Bailey wrote. “This does not happen.”
In a dissenting opinion, Judge Paul Mathias cited the court’s previous decision to send the case back to the Allen Circuit Court and asked a judge to consider the best interests of the child and wrote:
“Looking at the merits of this appeal, I would say that the trial court’s judgment dismissing Mother’s motion is clearly wrong.”
Mathias also wrote that the court was considering issues that currently affect approximately 38,000 Hoosiers who identify as transgender.
And while this last legislative session focused on banning transgender girls from competing with girls in sport, nothing has been done to remedy what the Court of Appeal has now tackled twice less one year.
“Therefore, and this fact is essential to this question and to this appeal, there is no applicable law that even speaks to, much less covers, the issue before us in this case: the child’s parents’ request to change the gender marker on the child’s birth certificate. ‘child from masculine to feminine’, Mathias wrote.
The emphasis, like others calling for the involvement of other legislative bodies, was his.