Ohio Supreme Court to decide case on changing gender on birth certificates

Whether transgender Ohioans have the legal ability to change the sex markers on their birth certificates is in the hands of the Ohio Supreme Court.

The seven justices heard oral arguments Tuesday morning in the case of Hailey Adelaide, a Clark County woman whose request for an amended birth certificate was rejected in 2021.

She argued that a federal court ruling from 2020 required the Ohio Department of Health to accept her petition, but her local probate court, which is where people go to make these changes, said it lacked legal authority to do so.

"This case is about how Ohio’s transgender citizens can change the sex marker listed on their birth certificates − not if ... ," attorneys Chad Eggspuehler and Maya Simek said in a joint statement. "We are hopeful the Ohio Supreme Court will stand by its existing guidance and resolve the uncertainty as to how transgender citizens can correct their birth certificates moving forward."

Federal vs. state

The Ohio Department of Health initially permitted transgender people to amend their birth certificates, but that policy changed in 2016, and the reversal sparked a federal lawsuit.

In 2020, the U.S. District Court for the Southern District of Ohio decided that the health department's policy violated the U.S. Constitution's equal protection clause.

Judge Michael Watson described Ohio's rules as "nothing more than a policy ‘born of animosity toward the class of person affected’ that has ‘no rational relation to a legitimate government purpose.'"

But the debate didn't end there.

Ohioans who want to modify their birth certificates must apply to their county's probate court, which then sends the documentation to the Ohio Department of Health.

That's what Adelaide did in 2021. She applied for both a name change and correction to the sex marker on her birth certificate, saying it had "not been properly and accurately recorded.”

Adelaide told the court she began identifying as female around 4 years old and "believed there was an error on her birth certificate when her sex marker was checked off as male because the male sex marker did not take into account her mental state."

Clark County's probate court rejected her petition, saying it lacked legal authority to change sex markers unless they were recorded in error.

The court saw a difference between the verbs "correct" and "amend." It said her request was an amendment − and not a legally permitted correction − since the hospital correctly checked the box that aligned with her anatomy at birth.

Adelaide's attorneys argued that the two words are synonyms. For example, Merriam-Webster defines correct as "to make or set right: amend."

The Second District Court of Appeals sided with the probate court, so Adelaide appealed to the Ohio Supreme Court.

Birth certificate changes vary by county

Franklin, Hamilton and Cuyahoga counties currently process transgender requests for birth certificate changes and send them to the Ohio Department of Health. But about 28 counties are not accepting them at this moment.

"There is an interesting split of authority here," Eggspuehler told the justices Tuesday. "If you’re born in one county, your birth certificate correction is processed, and if you’re born in another, it’s not."

He described that as a "core legal issue" because it raises the question of which counties correctly interpret Ohio's Revised Code.

Columbus and Cincinnati think their counties are correct. The two major cities filed briefs in support of Adelaide's case, in which they argued Ohio permits a "wide array of other alterations, all based on after-the-fact developments."

For example, adoptive parents can change their children's names, and intersex children can update their gender designation after birth.

"If Ohio must maintain a formal record of the facts at an individual’s birth, it can accomplish that by simply keeping records of birth certificate corrections," according to the two cities. "There is no reason that a birth certificate itself must bear that information, particularly when doing so is likely to cause confusion, harassment, and violence."

What happens next?

Because a federal court held that Ohio cannot deny transgender people these birth-certificate corrections, the justices debated how that process should happen.

Republican Justice Patrick Fischer, for example, asked whether the court should decide this case at all since there was no opposition (attorneys defending the decision of the probate court).

"Shouldn't this then be decided by the legislative branch and not by the judicial branch," Fischer said. "I see this more as an executive or legislative issue and not a judicial one."

Eggspuehler said he'd be fine with a declaration for the state health department to process these birth certificate changes with or without a probate court order. But Fischer sounded reluctant to wade into the issue at all.

Democratic Justice Melody Stewart, however, asked whether Adelaide had any other way besides the probate court process to obtain a new birth certificate.

Eggspuehler said, "At present, no."

Anna Staver is a reporter for the USA TODAY Network Ohio Bureau, which serves the Columbus Dispatch, Cincinnati Enquirer, Akron Beacon Journal and 18 other affiliated news organizations across Ohio.

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This article originally appeared on The Columbus Dispatch: Ohio court to hear case on transgender birth certificate changes