Ohio Supreme Court Hears Argument on Birth Certificate Changes for Transgender Ohioans

The Ohio Supreme Court heard arguments on April 4 about whether to allow a transgender woman to change the sex marker on her birth certificate. The case, In Re: Application for Correction of Birth Record of Hailey Emmeline Adelaide, is drawing attention from transgender rights groups nationwide.

Ohio is one of only two states where correcting sex designations on birth certificates has been contested, according to an amicus brief filed in the case. Probate courts in 11 Ohio counties are postponing decisions on birth certificate corrections until the Ohio Supreme Court rules in this case, another amicus brief noted. 

A decision is expected in the coming weeks or months. The oral argument, however, raised the possibility that the justices will demur for procedural reasons, extending the uncertainty over the legal status of transgender people in Ohio. 

Eight years of controversy

Arguments over sex marker corrections for transgender people have roiled Ohio for years. In 2015, after previously allowing such corrections, the Ohio Department of Health ruled that they were not explicitly authorized by state law. Four transgender people successfully challenged this reversal as unconstitutional in federal court. In 2020 in Ray v. McCloud, a federal district court ruled that prohibiting transgender individuals from changing the sex marker on their birth certificates was unconstitutional. That decision, however, was not binding on Ohio state courts, as state courts are bound only by the U.S. Supreme Court in rulings on constitutional law. 

In October 2021, Hailey Emmeline Adelaide asked the Clark County Probate Court to correct her birth certificate to reflect her new name and her female gender identity. The probate court approved Adelaide’s name correction but rejected the change to her sex marker, reopening the birth certificate controversy.

Adelaide filed an ex parte appeal — an appeal that does not name a defendant — arguing the applicable statute allows such changes to birth certificates, both as a matter of plain text and in light of Ray. 

The Second District Court of Appeals rejected Adelaide’s arguments and affirmed the probate court, finding that RC 3705.15, the state law that permits people to apply to correct their birth certificate if information “has been lost or destroyed, or has not been properly and accurately recorded,” did not permit corrections to sex markers. The appellate court said this language refers only to errors arising from the appearance of an infant’s genitals at birth, not those arising from the fact that genital appearance at birth might not accurately predict a transgender person’s gender identity.

Adelaide then appealed to the Ohio Supreme Court, arguing that RC 3705.15 contains no limits on which birth certificate information can be corrected. She also cited the holding in Ray. While the federal decision is not binding on Ohio state courts, Adelaide argued that it is persuasive and the appeals court should have addressed the constitutional issues. 

Rights groups, cities weigh in

Adelaide is supported by a host of transgender and LGBTQ+ rights groups and two Ohio cities that submitted amicus briefs. TransOhio filed an amicus brief with 20 other groups, contending that the appeals court created a “distinction without a difference” in finding Ohio law allows birth certificate corrections but not amendments, since the terms are synonyms.

Transgender Legal Defense and Education Fund and two other LGBTQ+ rights groups, Black and Pink National and National Queer Asian and Pacific Islander Alliance, argue in their brief that inaccurate birth certificates can expose transgender people to physical harm.

The cities of Cincinnati and Columbus said the lower courts’ claim that they are preserving the accuracy of important state records makes no sense given the many other alterations allowed on birth certificates after the fact.

A case without a defendant

At oral argument, the Ohio justices raised questions about both the substance of Adelaide’s arguments and the procedural posture of the case. 

“This straightforward statutory interpretation case addresses the power of Probate Courts under Revised Code 3705.15 to correct transgender citizens’ birth certificates, which are the core government-issued identification documents used by citizens in every phase of life,” Chad M. Eggspuehler, Adelaide’s lawyer, told the Ohio Supreme Court at oral argument. 

Justices Patrick DeWine and Patrick Fischer quickly expressed concern about the lack of an opposing party in the case. “Do we have an adversity problem here?” asked DeWine. Eggspuehler responded that the court has appellate authority to review a final order of the probate court declining jurisdiction. 

Fischer further suggested that ambiguities in the statute should be resolved by another government branch. “I guess I see this more as an executive or legislative issue and not so much of a judicial one because there’s no case in controversy and there’s nobody opposing it.”

At least one court watcher noted that the line of questioning by DeWine and Fischer hints at kicking this can further down the judicial road.

“It’s hard to tell too much from the arguments,” Case Western Reserve University law professor Jonathan L. Entin said after the hearing. “But there is a distinct possibility that the court will either dismiss the case for lack of jurisdiction because of the lack of opposition or ask the Ohio Department of Health to provide its views,” he said. 

Rex Bossert, former editor in chief of the National Law Journal, is a freelance writer.