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In re Name Change of A.L.

Court of Appeals of Indiana

August 10, 2017

In re the Name Change of A.L. and 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

          ATTORNEY FOR APPELLANTS Theo Ciccarelli Cornetta Jon Laramore Indiana Legal Services, Inc. Indianapolis, Indiana

          Baker, Judge.

         [¶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.

         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.

         [¶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.
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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 ...

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