COA: Transgender Individuals Don’t Have To Publish Intent To Change Gender Marker

Judge John Baker wrote both Friday opinions in favor of sealing the records in two cases, In the Matter of the Name Change of M.E.B., M.E.B., 19A-MI-118, and In the Matter of the Name Change of K.H., 18A-MH-3077. Both individuals were assigned male at birth but now identify as female.

Both M.B. and K.H. filed their name and gender marker change petitions in 2018 and subsequently moved to prohibit public access under Indiana Administrative Rule 9. M.B. cited to “high rates of violence, discrimination, and invasion of privacy against transgender people in Indiana and nationwide” and said she had personally experience discrimination because of her gender identity.

In K.H.’s case, the judge temporarily sealed the records and set the matter for a hearing, before which K.H. was required to publish notice of her desire to change her “own name from a name commonly used by males to a name more commonly used by females,” though she did not have to list her name. She was also required to publish the cause number and the date and time of her hearing and to notify the Attorney General.

K.H. objected to those requirements, but the trial court did not rescind its order. She then argued that “(p)ublishing a notice tells people that I am trans and inviting them to the hearing would give power to the community to dictate my life.”

The Hamilton Circuit Court ultimately denied K.H.’s Rule 9 motion because she did not publish the prerequisite notice or notify the Attorney General. The Orange Circuit Court likewise denied M.B.’s motion, writing that “it is readily apparent that [M.B.’s] evidence falls considerably short of proving by clear and convincing evidence that publication of the notice of the petition in this case would create ‘a significant risk of substantial harm.’” Further, the Orange County court said M.B.’s transgender status was “readily apparent” based on her appearance.

The appellate court relied on In re A.L., 81 N.E.3d 283 (Ind. Ct. App. 2017) to order reversal in both cases on Friday. In that case, the COA found no statutory requirement to publish notice of an intended gender marker change. While there is a statutory requirement to publish notice of an intended name change, A.L. held that the requirement is subject to exceptions laid out in Administrative Rule 9.

Relevant among those exceptions is the one in Rule 9(G)(4)(a)(ii), which allows for records to be sealed in cases in which “[a]ccess or dissemination of the Court record will create a significant risk of substantial harm to the requestor.” That exception, and all of Rule 9, is designed to prevent harm, Baker said, so M.B. was not required to provide evidence that she or other transgender Hoosiers were the target of violence.

Further, Baker said M.B. did provide data regarding violence and homicide against transgender people nationwide and in Indiana, as well as specific instances in which members of her community discriminated against her because of her transgender status.

“We find that this evidence readily supports M.B.’s argument that, if she had to publish notice of her name change petition and maintain a publicly open case file, she would be at a significant risk of substantial harm,” Baker wrote. “The trial court erred in ruling otherwise.”

The appellate court also noted in M.B.’s case that it was “wholly improper” for the trial court to deny confidentiality because the judge believed M.B. obviously looked like a transgender individual.

As to K.H., the appellate court said Administrative Rule 9 contemplates public notice in only one way: Rule 9(G)(4)(c)(ii), which requires that if a confidentiality notice is not initially denied, the court must provide advance notice of a subsequent hearing “within the confines of the court accessible to the general public,” pursuant to Indiana Code section 5-14-2-5.

“Neither the statute nor Administrative Rule 9 provides for alternative forms of public notice – including notice by publication,” Baker wrote. “Therefore, the trial court exceeded its authority and erred by ordering K.H. to take this action.”

The court likewise exceeded its authority in order that notice by given to the Attorney General, noting the General Assembly “has never seen fit to name the Attorney General as a party in interest to name change cases or to Administrative Rule 9 cases.”

“As to whether K.H. met her burden under Administrative Rule 9 that public access to her case records would create a significant risk of substantial harm to her, we find that she has,” Baker wrote. “The portions of her affidavit quoted above show that if her status as a transgender person becomes publicly known, she would be at significant risk of violence and discrimination.”

Both cases were remanded for further proceedings and with instructions that the records be sealed.

In footnotes in both cases, the appellate court chastised the trial court judges for their treatment of M.B. and K.H. In M.B.’s case, the COA called out the Orange Circuit Court for referring to M.B. as “he/she” in its order.

“The order is also permeated with derision for M.B.,” Baker wrote. “We would hope that the trial courts of this state would show far greater respect (as well as objectivity and impartiality) to all litigants appearing before them.”

And in K.H.’s case, the panel said the trial court’s “astonishing” pre-hearing notice requirements – including the requirement that she notify the public of her intent to change from a typical male name to a typical female name – were attempts to end-run around the Legislature.

“There is no statute or rule requiring that an individual seeking a gender marker change publish notice of that intent,” the court said. “Had the trial court truly only wanted her to notify the public that she intended to change her name, there would have been no need to require the gender specific language in the notice. It is apparent that the trial court intended to force K.H. to signal implicitly to the world that she seeks to change her gender.”