By Kathleen Maloney |
An Ohio law permits people born in the state to apply to a probate court to correct their birth certificates. In fall 2021, a woman applied to the Clark County Probate Court to correct the name and sex designation recorded on her birth certificate.
Hailey Adelaide told the court she was assigned as male at birth but started identifying as female as a young child. She requested the changes to her name and sex so her birth certificate aligned with her gender identity. The probate court approved Adelaide’s requested name correction but rejected the change to her sex marker.
Birth certificates contain details such as name, date and place of birth, sex, parents’ names, and their birthplaces. The document is used for verifying identity for a driver’s license, as a new employee, as a student registering at school, for government benefits, and more. When presenting a birth certificate with a sex marker that doesn’t represent their gender identity, transgender people note they are forced to reveal personal information they may not want to disclose.
The Clark County court concluded that a state law, R.C. 3705.15, doesn’t allow probate courts to make a sex marker correction unless the sex noted on the birth certificate was an error.
Adelaide appealed to the Second District Court of Appeals, which upheld the probate court decision. She appealed to the Supreme Court of Ohio, which will hear the case next week at oral arguments.
One of the amicus briefs filed in the appeal notes that probate courts in 11 counties are holding decisions on birth certificate corrections until the Supreme Court rules in this case.
Woman Argues Statute Doesn’t Restrict Corrections
R.C. 3705.15 allows for corrections to a birth record that “has been lost or destroyed, or has not been properly and accurately recorded.” Adelaide argues that the language in the statute contains no limits on which birth certificate items can be corrected.
She also points to Ray v. McCloud, a 2020 federal court ruling in Ohio, which found that prohibiting transgender individuals from changing the sex markers on their birth certificates was unconstitutional. The case involved a 2016 Ohio Department of Health policy based on R.C. 3705.15 that barred sex marker changes. While the federal court ruling isn’t binding on the state courts, the Second District should have addressed the constitutional issues at the center of that ruling, Adelaide contends.
She notes that many people don’t fall into clear-cut “male” and “female” categories. A person’s sex is determined by more than the person’s external genitals, she maintains. Gender identity and neurological sex, for example, are part of one’s sex and may be discovered over time, necessitating changes to birth documents, she states.
Appeals Court Rules That Law Addresses Only Information Wrongly Recorded at Birth
In its decision, the Second District determined that the statute is for correcting errors made at the time a birth certificate was recorded. The Second District drew a distinction between corrections and amendments. It wrote that other statutes are for amending birth certificates, and amendments can be made based on the facts existing at the time of the request. But R.C. 3705.15 only permits people to correct information about the facts at the time of birth, the court stated. It ruled the General Assembly didn’t mean for R.C. 3705.15 to allow changes to the sex marker or any other required fact on a birth certificate.
The court also disagreed with Adelaide’s view of the federal court ruling. The Ray decision was about the constitutionality of the health department’s blanket policy against transgender people changing their sex marker, the Second District determined. It concluded that the federal court wasn’t considering the constitutionality of R.C. 3705.15 or the authority of Ohio probate courts to make changes to sex markers.
There is no appellee in the case, and no briefs were filed in support of the Second District opinion.
Numerous Organizations and Two Cities File Additional Arguments
TransOhio and 20 other Ohio groups submitted a joint amicus brief supporting Adelaide. The organizations argue the Second District “invented a distinction without a difference” between corrections and amendments. The terms are synonymous, the groups maintain. Also filed in support of Adelaide is an amicus brief from the Transgender Legal Defense and Education Fund, Black and Pink National, and National Queer Asian and Pacific Islander Alliance. Citing several statistics, their brief maintains that inaccurate birth certificates expose transgender people to violence and physical harm. The groups also note that the American Medical Association recommended that the sex assigned at birth should be used for medical and statistical purposes only and shouldn’t appear publicly on birth certificates.
The cities of Cincinnati and Columbus also submitted arguments backing Adelaide. They express support for protecting the civil rights of all their residents and dispute that the lower courts are preserving the accuracy of the state’s vital records. “[I]t is impossible to square the pro-accuracy argument with the wide array of other alterations, all based on after the-fact developments, that state law allows for birth certificates,” their brief argues.
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