Ohio Supreme Court unable to decide transgender birth certificate case

COLUMBUS, Ohio (WCMH) -- Ohio's Supreme Court said it's up to the Statehouse to decide whether a transgender woman can change the sex marker on her birth certificate.

The court announced on Nov. 19 it could not reach a decision on whether state law allowed the Clark County Probate Court to grant a request from a trans woman named Hailey Adelaide to amend the sex marker on her birth certificate. Now, the court says it's up to "the General Assembly to decide whether to create any additional opportunities for persons born in Ohio to amend their birth records."

"We cannot reach a consensus on how this case should be resolved," wrote Justice Patrick Fischer. "It is an unfortunate day for the litigants in this case and Ohioans that we cannot reach a consensus."

Justice Joseph Deters, along with Chief Justice Sharon Kennedy and Justice Patrick DeWine, argued that neither the appeals court nor Ohio's Supreme Court had the power under the state's Constitution to consider Adelaide's appeal. This is because the case lacked "adversity," meaning there was no interest adverse to Adelaide's.

"Just as one cannot appeal a probate court's decision on whom to place on a park district board, one cannot appeal a probate court's decision on whether to change a sex marker on a birth certificate," Deters wrote.

However, Fischer and Justices Michael Donnelly, Melody Stewart and Jennifer Brunner disagreed and said the appeals court and the Ohio Supreme Court had the authority to hear the case, but they could not agree on how to resolve Adelaide's request.

So, until the Statehouse decides to pass legislation allowing Ohioans to amend the sex marker on their birth certificate, Adelaide's certificate will remain unchanged.

Adelaide appealed to the Ohio Supreme Court after the Second District Court of Appeals upheld the Clark County Probate Court's denial of her request. The probate court argued the initial recording of Adelaide's marker at birth was not made in error and "found there was nothing to be corrected."

"All evidence suggests that Adelaide was born in a hospital wherein the information for her birth certificate was prepared, completed, certified, and filed according to the applicable statutes," the ruling stated. "There is no allegation that the above-described process was done in error."

A majority of states allow trans Americans to correct the sex marker on their birth certificate. However, in Ohio, Adelaide's case demonstrates that the process is contingent on how certain judges interpret state law. 

A procedure for trans Ohioans to correct their certificate was established by the Ohio Department of Health in 2021, following a federal 2020 ruling that said trans Ohioans have the right to request a change.

The ODH uses the same process for trans people to change their sex marker as it uses for other corrections to Ohio birth certificates. Applicants need to request a "court-ordered correction of a birth record" using a form issued by any one of Ohio's 88 probate courts, one in each county.

The procedure is free and can be completed by anyone born in Ohio, even if the applicant is now living in another state. However, each court may have varying rules and require different documentation. 

Adelaide initially submitted an application in Clark County to change the name on her certificate in September 2021, followed by an application to correct the sex marker the next month. Once a form is received, the changes may take anywhere from four weeks to four months to be processed. Adelaide's two applications were consolidated for a hearing in November in 2021.

Court documents show Adelaide explained to the court that she began to question her identity at age four and argued there was an error on her certificate "because the male sex marker did not take into account her mental state," documents state. With her testimony, Adelaide included a copy of a letter signed by her mental healthcare provider and a clinical psychologist supervisor.

Procedure calls for the old certificate to be sealed in a vault only accessible to the applicant followed by the ODH issuing a new certificate with no bearing evidence of a change being made. However, at the conclusion of the hearing, the probate court granted Adelaide's request for a change of name but withheld a decision on her sex marker application.

Clark County Probate Court issued a written decision denying Adelaide's request in December that year.

"The court rejected Adelaide’s arguments that the word 'sex' and the phrase 'has not been properly and accurately recorded' were ambiguous," documents show.