No Statutory Requirement to Publish Notice of Intent to Change One’s Genetic Marker

Family Law Case Review

Case: In re the Name Change of A.L. and In re the Name Change of L.S.
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Unlike with a change of name, there is no statutory requirement to publish notice of intent to change one’s genetic marker.

HELD: While there is a statutory requirement to publish notice of intent to change one’s name, that requirement is subject to Administrative Rule 9 for purposes of sealing the record of the case and waiving publication of notice of intent to change name.

FACTS & PROCEDURAL HISTORY: L.S., a transgender man, 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 about four years. In 2016, L.S. filed a petition for change of name and gender marker, a request for waiver of publication, a request to seal the record, and a notice of exclusion of confidential information per Admin Rule 9. After a hearing, the trial court noted that L.S. was acting in good faith and without an intent to defraud, but denied L.S.’s Admin Rule 9 request, ordering L.S. to publish his intent to change name and gender marker in a newspaper.

At the trial court level, L.S.’s Admin Rule 9 argument was that, because transgender individuals are subject to an increased risk of harassment and violence, the protections of Admin Rule 9 were necessary to protect L.S.  The trial court disagreed, finding that L.S. had failed to demonstrate that L.S. was specifically subject to any heightened risk of violence or harassment, and that his more general request would require that any transgender applicant would be entitled to Admin Rule 9 protections without demonstrating the applicant’s case-specific risk. L.S. appealed.

The Court of Appeals first addressed the purported requirement to publish notice of intent to change one’s gender marker. The Court noted that there is not a specific statute that provides a procedural roadmap for how an application to change gender marker is to be processed. Instead, the process relies upon Indiana’s statute that generally permits the amendment of birth certificates; that statute was construed by the 2014 Birth Certificate case as being subject only to a requirement that the petitioner demonstrate good faith and that the change is not being pursued for a fraudulent or unlawful purpose. In short, there’s no basis for requiring publication. Therefore, the trial court erred when it ordered that L.S. must publish his intent to change gender marker.

By contrast, Indiana statute requires publication for a change of name. There is no exception to the publication requirement, other than as furnished by Admin Rule 9. As a general rule, all court records are publicly accessible. However, Admin Rule 9 provides a list of potential exceptions to that general rule, one of which is where “[a]cess or dissemination of the Court Record will create a significant risk of substantial harm to the requestor . . . .”  In the instant case, L.S. had presented evidence of the heightened risk of violence to transgender individuals, but no evidence that he personally faced a specific risk. The Court of Appeals disagreed with the trial court’s analysis of the risk issue, finding that the evidence of risk presented by L.S. was sufficient to grant his request.

The trial court’s order was reversed and remanded with instructions that notice of intent to change gender marker is never required, and that Admin Rule 9 relief should be granted to seal the case and to waive the notice of publication requirement regarding the change of name.

 

To view the text of this opinion in its entirety, click here:
In re the Name Change of A.L. and In re the Name Change of L.S.

 

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James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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