The Gavel outside the Supreme Court of the State of Ohio, September 20, 2023, at 65 S. Front Street, Columbus, Ohio. (Photo by Graham Stokes for Ohio Capital Journal. Republish photo only with original article.)
Justices on the Ohio Supreme Court said state laws do not allow transgender individuals to correct the “sex marker” on their birth certificates, but also admitted the court could not come to a resolution in a case related to the topic.
It’s up to the General Assembly — one that has already created laws banning gender-affirming care for minors and keeping transgender students from participating in sports based on their gender identity — to decide whether further changes can be made to birth certificates, justices said in response to an appeal from a transgender woman who asked the court to reverse a county probate court’s denial of her birth certificate change.
Hailey Emmeline Adelaide filed an application in 2021 with the Clark County Probate Court to change her name and correct the sex listed on her birth certificate to reflect her female gender identity.
Adelaide told the probate court she realized she was female in the late 1970s, when she was four years old.
The court allowed her name change, but denied the sex marker correction.
The Second District Court of Appeals upheld the probate court decision, leading to the appeal to the state’s highest court.
The Ohio Supreme Court did not act on the judgment and Justice Patrick Fischer said he and the other justices had to “decline to address the propositions of law accepted for review because we cannot reach a consensus on how this case should be resolved.”
“It is an unfortunate day for the litigants in this case and Ohioans that we cannot reach a consensus,” Fischer wrote.
Because the state supreme court couldn’t agree on a resolution, Adelaide’s birth certificate will remain as it is, and the denial of the probate court stands.
“The absence of a precedental decision from the Ohio Supreme Court leaves unanswered important questions of law and leaves in place the disparate approaches taken by County Probate Courts,” said Chad Eggspuehler, of the law firm Tucker Ellis LLP, in a joint statement with Equality Ohio Legal Clinic, both of whom represented Adelaide in the case.
Fischer, along with Justice Michael Donnelly and Justice Melody Stewart, noted that they would have upheld the court of appeals decision, and thus the probate court ruling. Justices Jennifer Brunner, Joseph Deters, Patrick DeWine and Chief Justice Sharon Kennedy said they would have reversed the appellate court decision, with Brunner saying she would have sent the case back to the probate court, and the others stating the case should go back to the court of appeals.
Several justices in the case decided to write separate explanations of their opinions on the case in lieu of a decision.
Adelaide’s case
Attorneys for Adelaide asked the supreme court to interpret the probate court’s authority to “correct” her birth certificate and the section of Ohio Revised Code that dictates Ohio birth certificates, particularly those for which a birth is “not recorded, or has been lost or destroyed, or has not been properly and accurately recorded,” according to the state law.
Ohioans who fall under those conditions can file an application with the probate court in the county where they were born or where the individual’s mother lived at the time of birth.
Though he acknowledged “many policy concerns” in the case, Fischer said the court can’t construe the law “in a manner inconsistent with its plain language to right a perceived wrong.”
“It is up to the General Assembly to decide whether to create any additional opportunities for persons born in Ohio to amend their birth records,” Fischer wrote.
Still, the justice said the lower courts had ruled correctly. Fischer said the General Assembly specifically gave the probate court the authority to decide on birth record changes. A probate judge can approve the changes “if satisfied that the facts are as stated.”
“The probate court denied Adelaide’s application because her sex was properly and accurately recorded at the time of her birth, as demonstrated by her testimony that she was born with male anatomy,” Fischer wrote.
He pushed back on an argument made by the Equality Ohio Legal Clinic, and cited by Brunner in her opinion on the case, that a federal court issued a permanent injunction saying Ohio “could not constitutionally single out transgender citizens from correcting information on their birth certificates.”
“The decisions of federal district courts are not binding on this court and provide only persuasive authority,” Fischer wrote.
But, in what Fischer called “an egregious judicial mistake,” the court never allowed Adelaide’s attorneys the chance to file further information in the case to support their request for judicial review.
Having that further information could “ensure that all matters are considered and that our decision does not have unintended consequences,” Fischer continued.
He agreed with fellow justices Donnelly and Stewart that the probate court “had no evidentiary basis and thus no authority to grant Adelaide’s application.”
The evidence the probate could would need, Fischer said, would prove “the person’s sex at the time of birth” so a “correction … would be limited to the circumstances and facts at the time of the person’s birth.”
In a separate opinion on the case, Donnelly aligned with Fischer in saying the court should have asked for more information to be able to come to a conclusion, but absent that, Donnelly also agreed that state law does not allow the correction Adelaide is requesting.
“In short, the birth certificate provides a snapshot of an event, the description of a moment, as it was then understood,” Donnelly wrote.
In Deters’ separate opinion, joined by Chief Justice Kennedy and Justice DeWine, he noted the lack of opposition, adding that “no other person or entity has a legal interest that would be diminished by the granting of her application.”
“When there is no adverse interest, there is no controversy for this court to decide,” Deters wrote.
Deters also argued a probate court’s decisions can’t be appealed because of their “unique statutory role.”
“Just as one cannot appeal a probate court’s decision on whom to place on a park-district board, one cannot appeal a probate court’s decision on whether to change a sex marker on a birth certificate,” Deters wrote.
In her own opinion, Brunner said one of the many questions the state supreme court is leaving unanswered in this case was whether the “philosophies of individual judges from county to county determine the scope of Ohio’s birth-record-correction statute” should be allowed.
“Persons like Adelaide are the casualties of this fractured decision we issue today,” Brunner wrote. “Though it is this court’s duty to state what the law is, we have failed in that duty and deny Adelaide and others who similarly petition the government clarity on how to apply (state law) to such petitions.”
In arguing the state’s interest in “maintaining and preserving correct birth records,” Fischer pointed not only to the selective-service registration — in case of a military draft, and only applicable to men 18 to 25 — but also the recent law passed by the General Assembly that bans transgender students from participating in sports teams that align with their gender identity.
“There is an argument that the state would have some interest in maintaining correct birth certificates to ensure the proper enforcement of this law,” Fischer wrote.
Donnelly argued that there is precedent for the General Assembly can use to permit further changes to birth certificates, such as changes made due to adoption.
“It should enact a statute creating a mechanism by which transgender persons born in Ohio may seek a change of the sex marker on their birth certificates to show, officially, who they know themselves to be,” the justice wrote.
YOU MAKE OUR WORK POSSIBLE.