The Ohio Supreme Court’s decision not to decide whether transgender Ohioans can change the gender marker on their birth certificates is expected to disproportionately affect transgender people in rural, conservative counties.
In April 2023, attorneys argued transgender Ohioan Hailey Adelaide’s case before the Ohio Supreme Court, after a probate court judge in Clark County denied her request to correct the gender marker on her birth certificate.
This week, the court announced it was unable to reach a majority judgment, leaving county probate courts to make decisions regarding corrections to transgender Ohioans’ birth certificates.
“The court said it did not have jurisdiction and was not allowed to make this type of correction under the law,” said Tucker and Ellis attorney Chad Eggsphuler, who represented Adelaide alongside Equality Ohio’s Maya Simek. “After all this time, the Ohio Supreme Court did not reach a [decision].”
Legal advocates have called the ruling a “non-decision” that will ultimately limit transgender Ohioans’ ability to correct their birth certificates on a county-by-county basis.
“Currently, there is no standard.” Eggsphuler added “That leaves a lot of uncertainty as to what the standard is going to be for counties that do not have binding court orders prohibiting them from issuing birth certificate corrections.”
Ohio Supreme Court issues ‘non-decision’
In December 2020, a federal judge issued a permanent injunction in a separate case regarding birth certificate corrections, finding two constitutional violations: violation of due process privacy rights and also a violation of equal protection.
“That [decision] said that the state of Ohio could no longer discriminate against transgender citizens and only transgender citizens, singling out the gender marker as the only item on a birth certificate that could not be corrected,” said Eggspuehler..
Following the federal court’s decision, Adelaide applied to change the gender marker on her birth certificate in Clark County via revised Code 3705.15.
Despite updated administrative guidance from the Ohio Department of Health and the Ohio Supreme Court itself instructing Ohio citizens to obtain this type of a birth certificate correction with an order from the probate court, the Clark County Probate Court denied Adelaide’s request to correct her gender marker.
Equality Ohio then partnered with attorneys at Tucker Ellison to appeal the decision to the Ohio Second District Court of Appeals. The Second District Court ultimately denied the appeal, determining that Adelaide did not provide sufficient evidence that her gender marker was recorded “incorrectly” at birth.
LGBTQ+ leaders hold briefing
Attorneys said some Ohio county probate courts have already indicated they will continue to process birth certificate corrections, particularly in Cuyahoga County, Franklin County, Hamilton County and “bigger city cosmopolitan areas” across the state.
“We are encouraging everyone to go and to get their federal documents updated on their Social Security for their gender marker correction as well as on their passport, and we will be having an increasing amount of support around the community in order to get those items corrected,” said Simek – who announced the court’s decision “with disappointment and with deep regret.”
Simek and her colleagues noted the dire need for official documents in underserved communities where people apply for government and social services and are more likely to encounter law enforcement.
“The court’s indecision maintained barriers that disproportionately affect black transgender individuals,” Simek said. “This reinforces the urgent need for accurate identity documents, which are critical for accessing employment, housing, healthcare and other essential services. Without them, many in our community face increased risk of harassment, violence and economic instability.”
The group also called on state legislators to take immediate action to protect the rights of transgender Ohioans: “We demand clear, accessible, and affirming processes for changing gender markers on all state issued documents, including birth certificates.”
TransOhio executive director Dara Adkison reminded Ohioans that free legal clinics are still scheduled across the state for transgender Ohioans looking to update their names or gender markers on other legal documents.
“The process can be very confusing and bureaucratic,” Adkison added. “But you don’t have to figure it out alone.” 🔥
IGNITE ACTION
- The state’s first Birth Certificate and Name Change Clinic will be held on Saturday, December 14 from 10am – 2pm at Alcohol, Drug, and Mental Health (ADAMH) Board of Franklin County, 447 E. Broad St., Columbus. Attorneys will be available to answer your questions, notaries will be standing by to witness signatures and a sitting magistrate will be able to process filings and issue orders on site.
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