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.
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.
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.
A.L. and L.S. are transgender men.
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.
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:
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.
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:
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
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?
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.
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.
A. Gender Marker
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:
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.
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.
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 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
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
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.
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 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.
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).
In this case, L.S. presented the following evidence:
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.
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 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.
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.
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.
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.