INDIANAPOLIS — The Indiana Court of Appeals is again imploring lawmakers to consider legislation clarifying whether transgender Hoosiers can change the gender marker on their birth certificates.
The request comes after more than a decade of Indiana courts operating in a “legal gray zone” on the issue, wrote Judge Patricia Riley in her majority opinion.
The appeals court took up the issue last week after a lower court denied a petition by a transgender woman inmate at the Pendleton Correctional Facility to change his birth certificate gender marker from male to female.
The inmate has been living as a transgender woman while at the prison and has been treated as a female as part of the Indiana Department of Correction’s inclusive gender practices implemented in 2019, according to court records.
The three-judge appeals court panel all concurred with the lower court ruling denying the inmate’s petition, but each offered different reasoning for their decision, highlighting the courts years-long split on how to handle the issue.
The courts initially ruled in 2014 that judges have the statutory authority to grant requests for gender marker changes on birth certificates. The rulings were based on state law declaring the state department of health “may make additions to or corrections” to birth certificates.
As long as petitioner establishes to a judge that their request is made in “good faith and not for a fraudulent or unlawful purpose,” the petition should be granted, the appeals court ruled.
Over the next decade, though, other judges dissented from this view.
Judge Robert Altice wrote in a 2022 opinion that court precedent went “far beyond the plain language and clear intent” of Indiana code and “improperly ventured into legislating.” Altice implored the Indiana Supreme Court and legislators to become “a catalyst for clarification and change.”
Judge Riley last week issued the same call in her ruling regarding the transgender inmate.
“In the absence of any legislative amendment by the General Assembly or jurisprudential guidance by our supreme court, this court operates in a legal gray zone,” she wrote. “Petitioners earnestly seeking a remedy deserve better.”
But legislation addressing the issue would almost certainly lean towards barring gender changes on birth certificates, argued Steve Sanders, who teaches law and political science at Indiana University and works with the gender-studies department.
“If the legislature weighed in on this, we all know what would happen,” he said. “It would be bad for transgender people.”
Lawmakers last year passed a bill prohibiting gender-affirming care for transgender Hoosiers, along with a new policy requiring schools to notify a parent when a student asks that pronouns be used that correspond with their gender, not their sex.
Those laws strongly indicate the Republican supermajority controlling the Indiana General Assembly will have little sympathy for those seeking a gender change on their birth certificate.
“Advocates for transgender people need to hope that the legislature doesn’t take it on,” explained Sanders. “Confusion and lack of clarity from the appellate court is not good, but it’s better than whatever the legislature would produce from the standpoint of transgender people.”
The shifting opinion from some appeals court judges, who think a lack of statutory langue on an issue bars them from establishing procedures, indicates a more conservative approach to the bench, argued Sanders. Courts have a long tradition evolving the common law and dealing with social realities and social needs when no statutes expressly address an issue, he noted.
“They’re basically saying this is not an issue the legislature has thought about, and until the legislature thinks about it, we’re powerless to do anything about it,” Sanders said. “That’s not an inevitable way for courts to behave.”
Indiana is one of nine states where judges have been required to make policy determinations in the absence of any specific policy or practices on birth certificate gender changes, according to National Center for Transgender Equality.
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