Can You Have Your Gender Changed On Your Birth Certificate?

By Richard Mann, Richard A. Mann, P.C., Indianapolis

With the issue of sexual identity becoming more prevalent, some question: How do I address the fact that the gender reflected on my birth certificate does not truly represent my gender?

The Indiana Court of Appeals held in In Re Petition for Change of Birth Certificate, 22 N.E.3d 707 (Ind. Ct. App. 2014), under Indiana Law found at I.C. 16-37-2-10, a court may order the Indiana State Board of Health to change the gender markers on a person’s birth certificate. The court shall grant a petition to amend the birth certificate as long as an adequate showing has been made in support of the petition, and the petition is filed in good faith and not for a fraudulent or unlawful purpose. The amount or type of documentary evidence needed to establish an adequate showing for an amendment of gender on a birth certificate is generally left to the court’s discretion. However, when a petitioner can present “ample medical evidence regarding his gender transition, which culminate[s] in sex reassignment surgery,” as well as an apparent display of genuine desire “to have all identifying documents conform to his current physical and social identity,” an adequate showing is assumed to have been made. 22 N.E.3d 707, 710. A court order stating the person’s name, date of birth, place of birth, and a statement telling the Indiana State Department of Health (ISDH) to change the original gender of the person on the person’s birth certificate is required before the state department may make any additions to or corrections in a certificate of birth.

In In Re Petition for Change of Birth Certificate, Appellant was a transgender male who identified as a man, lived as a man, and underwent extensive medical treatment for gender transition, including testosterone treatment, ongoing psychotherapy to address longstanding gender dysphoria, and gender reassignment surgery. Subsequently, Appellant legally changed his name and gender mark on his driver’s license, as well as with the Social Security Administration.[1] His birth certificate was the only significant life document left to be changed.

In 2013, Appellant filed a petition for change of legal gender in Tippecanoe Circuit Court so that he could correct the gender markers on his birth certificate from female to male. Appellant stated in the petition that he had transitioned successfully to a male role in society, in accordance with accepted medical standards of care for gender dysphoria, and he desired to change his gender designation so his birth record “may be more congruent with his appearance and social role.” 22 N.E.3d 707, 708. At Appellant’s hearing on the petition, he presented evidence from his surgeon, therapist, and endocrinologist detailing his transition. Although the court specifically found that the petition had been made in good faith and not for a fraudulent or unlawful purpose, the trial court denied the petition based upon a perceived lack of authority to grant such a request. The Court of Appeals of Indiana reversed, holding that the trial court erred in denying the petition. On remand, the Court of Appeals directed the trial court to grant Appellant’s petition and issue an order directing the ISDH to amend Appellant’s birth certificate to reflect his male gender.

Before 2014, this issue had never been addressed in the Court of Appeals of Indiana. However, “the amendment of a birth certificate with respect to gender [was] not novel.” 22 N.E.3d 707, 709. At the time forty-seven states, Indiana included, allowed gender reclassification on birth certificates. “Twenty-eight of those states specifically authorize gender reclassification by statute or administrative ruling, while the other nineteen have no written rule stating that they allow sex designation change, but provide the change upon application in practice.” Id.

Petitioners seeking the same relief as the Appellant in In Re Petition for Change of Birth Certificate may file with the court a petition for change of gender to have the gender marker on their birth certificates amended by the ISDH. The law that applies in Indiana is set forth in I.C.§ 16-37-2-10(b), which states, “The state department may make additions to or corrections in a certificate of birth on receipt of adequate documentary evidence.” Similar to the need for a court-order under I.C. 34-28-2-2 for an individual to obtain an amendment to the name on a birth certificate (In re Resnover, 979 N.E.2d 668 (Ind. Ct. App. 2012)), the ISDH’s official process (as stated in their Registrar’s manual) requires a court order to establish adequate documentary evidence for an amendment of gender on a birth certificate. Such a court order must state the person’s name, date, place of birth, and must tell the ISDH to change the original gender of the person on the person’s birth certificate. The ISDH Vital Records office will accept any court ordered gender change from any valid court in the United States.

As the Court of Appeals of Indiana made clear in its opinion, I.C. § 16-37-2-10 does not expressly limit a court’s authority regarding gender amendments of birth certificates, or impliedly provide otherwise (in the statute or elsewhere). Without specific guidance in the statute, the Court of Appeals has firmly concluded that the ultimate focus should be based upon whether the petition is made in good faith and not for a fraudulent or unlawful purpose. The amount or type of documentary evidence needed to establish an adequate showing for an amendment of gender on a birth certificate is generally left to the court’s discretion. However, where a petitioner can present ample medical evidence regarding his or her gender transition, which culminates in sex-reassignment surgery, as well as an apparent display of genuine desire to have all identifying documents conform to his or her current physical and social identity, there is no question that an adequate showing has been made in support of a petition for change of gender and a trial court should grant said petition for the ISDH to make corrections in the certificate of birth.

While the petitioner in the controlling case had substantial evidence of his commitment to being properly identified, the Appellate Court found that the trial court’s inherent authority along with the statute gives trial courts the authority to grant petitions for change of gender as long as the petition is filed in good faith and not for a fraudulent or unlawful purpose, and an adequate showing has been made in support of the petition. The court order must provide the individual’s name, date, place of birth, a statement telling the ISDH to change the original gender of the individual on the person’s birth certificate before the state department may make any additions to or corrections in a certificate of birth.

[1] The Social Security Administration’s (SSA) new policy for individuals seeking to change their gender designation in their Social Security records allows individuals to submit, among other things, an amended birth certificate with the new sex, a court order directing legal recognition of the change of sex, or a physician’s verified statement that “the individual has had appropriate clinical treatment for gender transition.”

Prepared by Alexandra Miller and Richard A. Mann of Richard A. Mann, P.C. Attorneys at Law.

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Richard A. Mann has been practicing Family Law for more than 36 years in the Indianapolis area and throughout the State of Indiana. He is a Certified Family Law Specialist as certified by the Family Law Certification Committee, a Registered Family Law and Civil Law Mediator and Guardian ad Litem and Parenting Coordinator. Mr. Mann and his firm, Richard A. Mann, P.C. Attorneys at Law, are proud to have been one of the firms who represented Same-Sex couples who were successful in overturning Indiana’s ban on Same-Sex marriage. He continues to fight discrimination in the law.

While a large portion of Mr. Mann’s practice is in the Family Law area he also represents several corporations on contract, personnel and other matters. He also has a varied General Practice in wills, estates, juvenile matters, collections, probate throughout the state of Indiana. Mr. Mann has tried murder cases as well as a death penalty case.

Mr. Mann has been selected for inclusion in Super Lawyers SuperLawyers Edition for 2009, 2010, 2011, 2012, 2013, 2014, 2015 & 2016.

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