FILED
Aug 10 2017, 8:28 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANTS
Theo Ciccarelli Cornetta
Jon Laramore
Indiana Legal Services, Inc.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Name Change of A.L. August 10, 2017
and Court of Appeals Case No.
79A02-1703-MI-473
In re the Name Change of L.S.
Appeal from the Tippecanoe
Circuit Court
The Honorable Thomas H. Busch,
Judge
The Honorable Daniel J. Moore,
Magistrate
Trial Court Cause Nos.
79C01-1609-MI-179
79C01-1605-MI-102
Baker, Judge.
Court of Appeals of Indiana | Opinion 79A02-1703-MI-473 | August 10, 2017 Page 1 of 15
[1] A.L. and L.S. are transgender men, who each filed a petition to change their
legal gender marker. Additionally, L.S. filed petitions to change his name, to
waive the publication requirement, and to seal the record pursuant to
Administrative Rule 9. The trial court found that publication is required for
changes of gender marker and name, and denied L.S.’s request to seal the
record pursuant to Administrative Rule 9. The matters have been consolidated
for this appeal; L.S.’s appeal is interlocutory.
[2] We find as follows: (1) there is no statutory requirement to publish notice of
intent to change one’s gender marker; (2) there is a statutory requirement to
publish notice of intent to change one’s name, but that statute is explicitly
subject to Administrative Rule 9; and (3) in this case, L.S. made the requisite
showing under Administrative Rule 9, is entitled to have the record sealed, and
is entitled to waive publication of notice of intent to change his name.
[3] Consequently, our judgment is as follows: (1) the judgment of the trial court is
reversed with respect to the respective petitions to change gender markers, and
we remand both causes with instructions to enter orders granting those petitions
and directing the Indiana State Department of Health to amend both birth
certificates to reflect their male gender; (2) the judgment of the trial court is
reversed with respect to its denial of L.S.’s requests to waive publication and to
seal the record pursuant to Administrative Rule 9; and (3) the matter is
remanded for consideration of L.S.’s petition to change his name.
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Facts
[4] A.L. and L.S. are transgender men.1 Both men are currently working with
counselors and medical professionals in their transition from female to male.
A.L. has been living as a man for two years and has had medical procedures in
line with his transition. L.S. has been living as a man for most of his life. He
has been doing so full-time, in both his social and professional life, for
approximately four years.
A.L.
[5] On May 11, 2016, A.L. filed a pro se petition for a name change. He published
his intent to change his name in a newspaper and, on July 13, 2016, the trial
court granted the petition. At that same hearing, A.L. requested to have his
gender marker changed on his birth certificate.2 The trial court directed A.L. to
publish his intent to change his gender marker with a newspaper and set the
matter for another hearing. A.L. subsequently obtained counsel. On August
23, 2016, A.L. filed a motion to correct error, asserting that the trial court’s
requirement that he publish notice of his intent to change his gender marker
was contrary to Indiana law.
1
A person who is “transgender” is “a person whose gender identity differs from the sex the person had or
was identified as having at birth[.]” Merriam-Webster Dictionary, at https://www.merriam-
webster.com/dictionary/transgender (last visited July 17, 2017).
2
His initial request was oral and he filed a written petition to that effect before leaving the courthouse that
same day.
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[6] At an October 26, 2016, hearing, A.L. testified as to the good faith of his
petition for change of gender marker and presented evidence of his medical
transition. The trial court took the matter under advisement, later denying the
petition because A.L. had not published his intent to change his gender marker
with a newspaper. Following further litigation, on December 9, 2016, the trial
court again denied A.L.’s request to avoid publication and ordered A.L. to
provide proof of publication before the trial court would issue an order
changing his gender marker. In relevant part, the trial court held as follows:
9. The Court specifically finds that Petitioner’s requested
gender change is being made in good faith without any
fraudulent intent. . . .
10. The legislature [h]as provided no direct authority to the
courts to specifically address gender marker changes and
the Court of Appeals has provided only limited guidance
thus far.
***
12. Petitioner’s request to proceed without published notice is
based primarily on arguments that transgender[]
individuals are disproportionately subjected to violence
based on their status as transgender[] individuals. The
Petitioner has made no showing that the Petitioner is
personally at increased risk for violence (other than as a
general member of the transgender[] community) or that
this Petition would lead to an increased risk of violence for
the Petitioner.
***
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18. The Petitioner’s arguments on this issue favor a general
rule that would require no notice for any individual
seeking to change their legal gender and have their birth
certificate amended. Without notice the potential for
fraud greatly increases in that individuals might be able to
seek multiple gender changes in attempts to avoid
identification by creditors, governmental actors, or other
aggrieved parties without those parties having an
opportunity to object or even be aware of said changes. . . .
[T]o proceed without notice would prevent the public
interests from being voiced or addressed in the only forum
currently addressing said issues as members of the public
would be generally unaware, if even the[y] wished to be,
that such decisions are occurring.
19. The court is understandably reluctant to force well-
meaning and potentially vulnerable individuals to address
intimate and personal issues central to their personal
identity in the harsh public light of open court. However,
such is the burden of a multitude of citizens who seek or
are subjected to court intervention in the most personal
areas of their lives. The judicial preference for open,
transparent, and public court proceedings is well
established in American jurisprudence. Similarly the
importance of appropriate notice to potentially interested
parties before legal redress is an essential element of our
notice pleading practice. The facts of this instant case,
however sympathetic, are not sufficient to justify a
departure from those essential and long standing principles
of the Indiana Court system.
Appellants’ App. Vol. II p. 13-15. The trial court held that petitions for change
of gender marker should follow the same procedural rubric as petitions for
change of name. A.L. now appeals.
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L.S.
[7] On September 7, 2016, L.S. filed a petition for change of name and gender, a
request for waiver of publication, a request for sealing of the record, a notice of
exclusion of confidential information pursuant to Indiana Administrative Rule
9(G)(5), and a memorandum in support of these requests. The trial court held a
hearing on the Administrative Rule 9 request on November 9, 2016. On
December 9, 2016, the trial court denied L.S.’s motion to proceed under
Administrative Rule 9 and ordered L.S. to publish his intent to change his name
and gender marker in a newspaper. With respect to L.S.’s request to waive
publication of his intent to change his gender marker, the trial court repeated
much of its analysis set forth above in A.L.’s case, including another explicit
finding that L.S. was acting in good faith without an intent to defraud. With
respect to L.S.’s request to waive publication of his intent to change his name
and invocation of Administrative Rule 9, the trial court found as follows:
8. . . . Petitioner further requests relief from the statutory
requirement to publish notice of Petitioner’s name change
specifically because it occurs in the context of a gender
change. The court finds no statutory authority to proceed
with a name change absent published notice and as will be
addressed in the context of Petitioner’s Administrative
[Rule] 9 request, the court does not find the specific facts
of this case would allow a name change absent
publication.
9. Petitioner further seeks protection of Petitioner’s personal
identifying information pursuant to Administrative Rule 9.
Specifically Petitioner seeks sealing of these records under
9G(4) arguing that public access to these records will
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create a significant risk of substantial harm to the
requestor. The gravamen of the Petitioner’s request is
based on the demonstrable violence and harassment
suffered by the transgender[] community as a whole. This
issue cannot be simply overlooked. It is certainly true that
the transgender[] community is disproportionately targeted
for violence as a result of their transgender[] status. The
court does not doubt that Petitioner’s fear is very real and
the court has tremendous sympathy for the difficult
choices faced by individuals who confront gender
dysphoria. However, similar to the request to proceed
without publication, Petitioner’s request, on these facts,
would amount to a categorical ruling that in all instances
for requested name change and gender marker change,
transgender[] individuals would be entitled to proceed
anonymously pursuant to the protections of
Administrative Rule 9. The court declines to make such a
categorical finding. Specifically, the court notes that
Petitioner has made no showing that this Petitioner has
been subject to any specific threats or violence as a result
of Petitioner’s transgender[] status. Further, and more to
the point, Petitioner has made no showing that proceeding
publicly with his petition would subject Petitioner to any
increased risk of violence or harassment than that
currently faced by Petitioner as a member of the
transgender[] community. Moreover, there has been no
evidence submitted that establishes that the public filing of
such court cases has resulted in targeted violence against
transgender[] individuals. The protections of
Administrative Rule 9 represent a deviation from the
courts[’] longstanding preference for public and
transparent proceedings. As such, that deviation must be
justified by a significant factual showing. In the instant
case, the Petitioner has not met that burden.
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Id. at 18. The trial court did not rule on L.S.’s petition to change his name.
L.S. now brings this interlocutory appeal. For the purpose of this appeal,
A.L.’s and L.S.’s cases have been consolidated.
Discussion and Decision
[8] This appeal presents us with three issues to consider: (1) are transgender
individuals who intend to seek a gender marker change required to provide
notice by publication of that intention; (2) are transgender individuals who
intend to seek a name change required to provide notice by publication of that
intention; and (3) did the trial court err by finding that L.S. did not meet the
burden of showing entitlement to relief under Administrative Rule 9?
[9] The first two issues are matters of law, to which we apply a de novo standard of
review. E.g., Town of Zionsville v. Town of Whitestown, 49 N.E.3d 91, 94 (Ind.
2016). As to the third issue, to the extent that our review requires us to
construe the language of Administrative Rule 9, we will again apply a de novo
standard of review. Angelopoulos v. Angelopoulos, 76 N.E.3d 852, para. 13 (Ind.
Ct. App. 2017). To the extent that our review requires us to review the trial
court’s factual determinations, we will apply a clearly erroneous standard. Id.
I. Publication
[10] Here, the trial court found that both A.L. and L.S. are required to publish
notice of their intent to change their gender marker and that L.S. is required to
publish notice of his intent to change his name.
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A. Gender Marker
[11] Authority for trial courts to issue orders requiring that the Indiana State
Department of Health (ISDH) change an individual’s gender marker on his
birth certificate stems from a decision of this Court. In re Pet’n for Change of Birth
Certificate, 22 N.E.3d 707 (Ind. Ct. App. 2014). In Birth Certificate, the trial court
had denied the petition of a transgender man to change his gender marker,
finding that it had no authority to grant the request. In considering the issue,
we examined Indiana Code section 16-37-2-10(b), which provides that the
ISDH “may make additions to or corrections in a certificate of birth on receipt
of adequate documentary evidence . . . .” This Court reasoned as follows:
Like name changes, the ISDH defers to the courts by requiring a
court order to establish adequate documentary evidence for an
amendment of gender on a birth certificate. Courts in our state
have entered such orders. Further, the Indiana Bureau of Motor
Vehicles expressly recognizes “certified amended birth
certificate[s] showing a change in . . . gender” as proof of identity
to obtain, renew, or amend an Indiana driver’s license or
identification card. See 140 Ind. Admin. Code 7-1.1-3(b)(1)(B)
and (K).
Though never addressed by this court, the amendment of a birth
certificate with respect to gender is not novel. The vast majority
of states, including Indiana, have allowed it in practice for some
time.
I.C. § 16-37-2-10 provides general authority for the amendment
of birth certificates, without any express limitation (in the statute
or elsewhere) regarding gender amendments. In light of this
statute, as well as the inherent equity power of a court of general
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jurisdiction, we conclude that the trial court had authority to
grant the petition at hand.
Id. at 708-09 (internal footnotes and citations omitted). We noted the absence
of legislative guidance regarding what evidence is required in support of a
petition for a gender marker change, ultimately holding that “[w]ithout such
guidance . . . it is our view that the ultimate focus should be on whether the
petition is made in good faith and not for a fraudulent or unlawful purpose.”
Id. at 710.
[12] The relevant statutes have not been substantively amended since Birth Certificate
was decided. There is no statute or rule requiring that an individual seeking a
gender marker change publish notice of that intent. In this case, the trial court
likened gender marker changes to name changes, but the statutory requirement
for publication in name change cases does not apply to gender marker changes.
It was erroneous to create a requirement where none exists.
[13] Unless and until the General Assembly crafts specific requirements regarding
gender marker changes, this Court’s common sense standard in Birth Certificate
is the bar that must be met. Thus, a gender marker change petitioner needs to
establish that the petition is made in good faith and not for a fraudulent or
unlawful purpose. If a trial court determines that the petitioner has met that
standard, no further requirements need to be met and the petition should be
granted. Here, the trial court found that both A.L. and L.S. sought a gender
marker change in good faith and with no intent to defraud. Appellants’ App.
Vol. II p. 13, 16. As such, the trial court should have granted their petitions for
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gender marker change. We reverse on this issue and remand with instructions
to grant both petitions and issue orders directing the ISDH to amend both birth
certificates to reflect their male gender.
B. Name Change
[14] L.S. argues that the trial court erroneously ordered that he publish notice of his
intent to change his name. As a general rule, upon filing a petition for a name
change, a petitioner must, in relevant part, give notice of the petition by three
weekly publications in a newspaper of general circulation published in the
county where the petition was filed. Ind. Code § 34-28-2-3(a). Except for
Administrative Rule 9, to which we turn next, there is no exception to this
general publication requirement. Consequently, unless Administrative Rule 9
applies, a transgender individual seeking a name change must publish the
petition just as any other individual seeking a name change.
II. Administrative Rule 9
[15] A petition to change one’s name under Indiana Code chapter 34-28-2 is,
however, explicitly “subject to Indiana Rules of Court Administrative Rule 9.”
I.C. § 34-28-2-2.5(b). We must determine, therefore, whether L.S. is entitled to
relief under Administrative Rule 9.
[16] Administrative Rule 9 “governs public access to, and confidentiality of, Court
Records.” Ind. Administrative Rule 9(A). The rule seeks to balance, among
other things, the risk of injury to individuals with the promotion of accessibility
to court records as well as governmental transparency. Id. The Commentary
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notes that the rule “attempts to balance competing interests and recognizes that
unrestricted access to certain information in Court Records could result in an
unwarranted invasion of personal privacy or unduly increase the risk of injury
to individuals and businesses.” Id. cmt.
[17] As a general rule, all court records are publicly accessible. Admin. R. 9(D)(1).
There is, however, a list of exceptions to that general rule, which are found in
Rule 9(G). Relevant to this appeal is an exception providing that a court record
that would otherwise be publicly accessible may be excluded from public access
upon a verified written request demonstrating that “[a]ccess or dissemination of
the Court Record will create a significant risk of substantial harm to the
requestor . . . .” Admin. R. 9(G)(4)(a)(ii).
[18] In this case, L.S. presented the following evidence:
• Transgender individuals are disproportionately subject to violence and
homicide. Appellants’ App. Vol. II p. 71.
• LGBT people are more likely than any other minority group to
experience hate crimes in the United States. Id.
• In 2016, twenty-six transgender individuals were murdered in the United
States. Id.
• A survey of transgender people in Indiana revealed that 74% of
respondents experienced harassment or mistreatment on the job; 73%
reported harassment in their elementary, middle, and high schools; and
27% reported physical assault.
• L.S. is “aware of the high rates of violence against transgender people in
Indiana and nationwide” and fears that he “will experience threats and
actual violence if the record of [his] Change of Name and Gender is
public.” Id. at 52.
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• L.S. has personally “witnessed a person, friend of mine, male to female
transgender individual, a person get out of the car and come and grab her
by her hair and shoved her face into the sidewalk, and uh, you know,
hitting her. I mean blood . . . .” Tr. p. 36.
• L.S. has experienced discrimination because of his transgender identity,
testifying that he lost an internship opportunity because the interviewer
discovered that the way in which L.S. was identified by Social Security
did not “match” with how he appeared. Id. at 34.
• L.S. testified that he believes that if information about his transgender
status became public, he would be “at great risk for potential harm. . . . I
mean it could be anything. I – I – I uh, violence, death, you know, it just
depends on who – who gets a hold of me you know.” Id. at 35-36.
The trial court found, based on this evidence, that the transgender community
is “disproportionately targeted for violence” as a result of gender identity.
Appellants’ App. Vol. II p. 18. The trial court acknowledged “the
demonstrable violence and harassment suffered by the transgender[]
community as a whole.” Id. It also found, however, that L.S. did not establish
that he had been subject to specific threats or violence; that publishing his
petition would subject him to an increased risk of violence or harassment that
exceeds what he already faces as a member of the transgender community; or
that the public filing of such court cases has resulted in targeted violence against
transgender individuals. Id.
[19] Initially, we return to the language of Administrative Rule 9(G)(4), which
requires that L.S. establish that publication of notice of his petition would create
“a significant risk of substantial harm” to him. Publication must occur multiple
times in a newspaper of general circulation; among other things, it would reveal
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L.S.’s birth name and new desired name. I.C. § 34-28-2-3(b). Thus, to publish
this notice would be to “out” L.S. as a transgender man to the general public.
[20] L.S. provided evidence that, as an out member of the transgender community,
he would face a significantly higher risk of violence, harassment, and homicide.
He has personally witnessed a transgender friend being violently assaulted
because of her gender identity. He has personally experienced discrimination in
the workplace after a discrepancy between the way he looked and the way he
was identified by Social Security outed him as a transgender individual.
Publication of his birth name and new name would enable members of the
general public to seek him out, placing him at a significant risk of harm. And in
today’s day and age, information that is published in a newspaper is likely to be
published on the Internet, where it will remain in perpetuity, leaving L.S. at risk
for the rest of his life. There was no evidence in opposition to L.S.’s evidence.
[21] Under these circumstances, we find that L.S. established that publication of
notice of his petition for a name change would create a significant risk of
substantial harm to him. As a result, the trial court should have granted his
requests to seal the record and waive publication pursuant to Administrative
Rule 9. We remand with instructions to ensure that the record of this case
remains sealed, and for consideration of L.S.’s petition for a name change.
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[22] The judgment of the trial court is reversed in part and remanded with
instructions and for consideration of L.S.’s petition for a name change.
Bailey, J., and Altice, J., concur.
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