                                                                            FILED
                                                                     Aug 10 2017, 8:28 am

                                                                            CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANTS
Theo Ciccarelli Cornetta
Jon Laramore
Indiana Legal Services, Inc.
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In re the Name Change of A.L.                              August 10, 2017

   and                                                     Court of Appeals Case No.
                                                           79A02-1703-MI-473
In re the Name Change of L.S.
                                                           Appeal from the Tippecanoe
                                                           Circuit Court
                                                           The Honorable Thomas H. Busch,
                                                           Judge
                                                           The Honorable Daniel J. Moore,
                                                           Magistrate
                                                           Trial Court Cause Nos.
                                                           79C01-1609-MI-179
                                                           79C01-1605-MI-102



Baker, Judge.




Court of Appeals of Indiana | Opinion 79A02-1703-MI-473 | August 10, 2017                     Page 1 of 15
[1]   A.L. and L.S. are transgender men, who each filed a petition to change their

      legal gender marker. Additionally, L.S. filed petitions to change his name, to

      waive the publication requirement, and to seal the record pursuant to

      Administrative Rule 9. The trial court found that publication is required for

      changes of gender marker and name, and denied L.S.’s request to seal the

      record pursuant to Administrative Rule 9. The matters have been consolidated

      for this appeal; L.S.’s appeal is interlocutory.


[2]   We find as follows: (1) there is no statutory requirement to publish notice of

      intent to change one’s gender marker; (2) there is a statutory requirement to

      publish notice of intent to change one’s name, but that statute is explicitly

      subject to Administrative Rule 9; and (3) in this case, L.S. made the requisite

      showing under Administrative Rule 9, is entitled to have the record sealed, and

      is entitled to waive publication of notice of intent to change his name.


[3]   Consequently, our judgment is as follows: (1) the judgment of the trial court is

      reversed with respect to the respective petitions to change gender markers, and

      we remand both causes with instructions to enter orders granting those petitions

      and directing the Indiana State Department of Health to amend both birth

      certificates to reflect their male gender; (2) the judgment of the trial court is

      reversed with respect to its denial of L.S.’s requests to waive publication and to

      seal the record pursuant to Administrative Rule 9; and (3) the matter is

      remanded for consideration of L.S.’s petition to change his name.




      Court of Appeals of Indiana | Opinion 79A02-1703-MI-473 | August 10, 2017   Page 2 of 15
                                                          Facts
[4]   A.L. and L.S. are transgender men.1 Both men are currently working with

      counselors and medical professionals in their transition from female to male.

      A.L. has been living as a man for two years and has had medical procedures in

      line with his transition. L.S. 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

      approximately four years.


                                                            A.L.

[5]   On May 11, 2016, A.L. filed a pro se petition for a name change. He published

      his intent to change his name in a newspaper and, on July 13, 2016, the trial

      court granted the petition. At that same hearing, A.L. requested to have his

      gender marker changed on his birth certificate.2 The trial court directed A.L. to

      publish his intent to change his gender marker with a newspaper and set the

      matter for another hearing. A.L. subsequently obtained counsel. On August

      23, 2016, A.L. filed a motion to correct error, asserting that the trial court’s

      requirement that he publish notice of his intent to change his gender marker

      was contrary to Indiana law.




      1
       A person who is “transgender” is “a person whose gender identity differs from the sex the person had or
      was identified as having at birth[.]” Merriam-Webster Dictionary, at https://www.merriam-
      webster.com/dictionary/transgender (last visited July 17, 2017).
      2
        His initial request was oral and he filed a written petition to that effect before leaving the courthouse that
      same day.

      Court of Appeals of Indiana | Opinion 79A02-1703-MI-473 | August 10, 2017                             Page 3 of 15
[6]   At an October 26, 2016, hearing, A.L. testified as to the good faith of his

      petition for change of gender marker and presented evidence of his medical

      transition. The trial court took the matter under advisement, later denying the

      petition because A.L. had not published his intent to change his gender marker

      with a newspaper. Following further litigation, on December 9, 2016, the trial

      court again denied A.L.’s request to avoid publication and ordered A.L. to

      provide proof of publication before the trial court would issue an order

      changing his gender marker. In relevant part, the trial court held as follows:

              9.       The Court specifically finds that Petitioner’s requested
                       gender change is being made in good faith without any
                       fraudulent intent. . . .


              10.      The legislature [h]as provided no direct authority to the
                       courts to specifically address gender marker changes and
                       the Court of Appeals has provided only limited guidance
                       thus far.


                                                        ***


              12.      Petitioner’s request to proceed without published notice is
                       based primarily on arguments that transgender[]
                       individuals are disproportionately subjected to violence
                       based on their status as transgender[] individuals. The
                       Petitioner has made no showing that the Petitioner is
                       personally at increased risk for violence (other than as a
                       general member of the transgender[] community) or that
                       this Petition would lead to an increased risk of violence for
                       the Petitioner.


                                                        ***

      Court of Appeals of Indiana | Opinion 79A02-1703-MI-473 | August 10, 2017    Page 4 of 15
        18.      The Petitioner’s arguments on this issue favor a general
                 rule that would require no notice for any individual
                 seeking to change their legal gender and have their birth
                 certificate amended. Without notice the potential for
                 fraud greatly increases in that individuals might be able to
                 seek multiple gender changes in attempts to avoid
                 identification by creditors, governmental actors, or other
                 aggrieved parties without those parties having an
                 opportunity to object or even be aware of said changes. . . .
                 [T]o proceed without notice would prevent the public
                 interests from being voiced or addressed in the only forum
                 currently addressing said issues as members of the public
                 would be generally unaware, if even the[y] wished to be,
                 that such decisions are occurring.


        19.      The court is understandably reluctant to force well-
                 meaning and potentially vulnerable individuals to address
                 intimate and personal issues central to their personal
                 identity in the harsh public light of open court. However,
                 such is the burden of a multitude of citizens who seek or
                 are subjected to court intervention in the most personal
                 areas of their lives. The judicial preference for open,
                 transparent, and public court proceedings is well
                 established in American jurisprudence. Similarly the
                 importance of appropriate notice to potentially interested
                 parties before legal redress is an essential element of our
                 notice pleading practice. The facts of this instant case,
                 however sympathetic, are not sufficient to justify a
                 departure from those essential and long standing principles
                 of the Indiana Court system.


Appellants’ App. Vol. II p. 13-15. The trial court held that petitions for change

of gender marker should follow the same procedural rubric as petitions for

change of name. A.L. now appeals.


Court of Appeals of Indiana | Opinion 79A02-1703-MI-473 | August 10, 2017    Page 5 of 15
                                                        L.S.

[7]   On September 7, 2016, L.S. filed a petition for change of name and gender, a

      request for waiver of publication, a request for sealing of the record, a notice of

      exclusion of confidential information pursuant to Indiana Administrative Rule

      9(G)(5), and a memorandum in support of these requests. The trial court held a

      hearing on the Administrative Rule 9 request on November 9, 2016. On

      December 9, 2016, the trial court denied L.S.’s motion to proceed under

      Administrative Rule 9 and ordered L.S. to publish his intent to change his name

      and gender marker in a newspaper. With respect to L.S.’s request to waive

      publication of his intent to change his gender marker, the trial court repeated

      much of its analysis set forth above in A.L.’s case, including another explicit

      finding that L.S. was acting in good faith without an intent to defraud. With

      respect to L.S.’s request to waive publication of his intent to change his name

      and invocation of Administrative Rule 9, the trial court found as follows:


              8.       . . . Petitioner further requests relief from the statutory
                       requirement to publish notice of Petitioner’s name change
                       specifically because it occurs in the context of a gender
                       change. The court finds no statutory authority to proceed
                       with a name change absent published notice and as will be
                       addressed in the context of Petitioner’s Administrative
                       [Rule] 9 request, the court does not find the specific facts
                       of this case would allow a name change absent
                       publication.


              9.       Petitioner further seeks protection of Petitioner’s personal
                       identifying information pursuant to Administrative Rule 9.
                       Specifically Petitioner seeks sealing of these records under
                       9G(4) arguing that public access to these records will
      Court of Appeals of Indiana | Opinion 79A02-1703-MI-473 | August 10, 2017   Page 6 of 15
                 create a significant risk of substantial harm to the
                 requestor. The gravamen of the Petitioner’s request is
                 based on the demonstrable violence and harassment
                 suffered by the transgender[] community as a whole. This
                 issue cannot be simply overlooked. It is certainly true that
                 the transgender[] community is disproportionately targeted
                 for violence as a result of their transgender[] status. The
                 court does not doubt that Petitioner’s fear is very real and
                 the court has tremendous sympathy for the difficult
                 choices faced by individuals who confront gender
                 dysphoria. However, similar to the request to proceed
                 without publication, Petitioner’s request, on these facts,
                 would amount to a categorical ruling that in all instances
                 for requested name change and gender marker change,
                 transgender[] individuals would be entitled to proceed
                 anonymously pursuant to the protections of
                 Administrative Rule 9. The court declines to make such a
                 categorical finding. Specifically, the court notes that
                 Petitioner has made no showing that this Petitioner has
                 been subject to any specific threats or violence as a result
                 of Petitioner’s transgender[] status. Further, and more to
                 the point, Petitioner has made no showing that proceeding
                 publicly with his petition would subject Petitioner to any
                 increased risk of violence or harassment than that
                 currently faced by Petitioner as a member of the
                 transgender[] community. Moreover, there has been no
                 evidence submitted that establishes that the public filing of
                 such court cases has resulted in targeted violence against
                 transgender[] individuals. The protections of
                 Administrative Rule 9 represent a deviation from the
                 courts[’] longstanding preference for public and
                 transparent proceedings. As such, that deviation must be
                 justified by a significant factual showing. In the instant
                 case, the Petitioner has not met that burden.




Court of Appeals of Indiana | Opinion 79A02-1703-MI-473 | August 10, 2017    Page 7 of 15
       Id. at 18. The trial court did not rule on L.S.’s petition to change his name.

       L.S. now brings this interlocutory appeal. For the purpose of this appeal,

       A.L.’s and L.S.’s cases have been consolidated.


                                     Discussion and Decision
[8]    This appeal presents us with three issues to consider: (1) are transgender

       individuals who intend to seek a gender marker change required to provide

       notice by publication of that intention; (2) are transgender individuals who

       intend to seek a name change required to provide notice by publication of that

       intention; and (3) did the trial court err by finding that L.S. did not meet the

       burden of showing entitlement to relief under Administrative Rule 9?


[9]    The first two issues are matters of law, to which we apply a de novo standard of

       review. E.g., Town of Zionsville v. Town of Whitestown, 49 N.E.3d 91, 94 (Ind.

       2016). As to the third issue, to the extent that our review requires us to

       construe the language of Administrative Rule 9, we will again apply a de novo

       standard of review. Angelopoulos v. Angelopoulos, 76 N.E.3d 852, para. 13 (Ind.

       Ct. App. 2017). To the extent that our review requires us to review the trial

       court’s factual determinations, we will apply a clearly erroneous standard. Id.


                                               I. Publication
[10]   Here, the trial court found that both A.L. and L.S. are required to publish

       notice of their intent to change their gender marker and that L.S. is required to

       publish notice of his intent to change his name.



       Court of Appeals of Indiana | Opinion 79A02-1703-MI-473 | August 10, 2017    Page 8 of 15
                                          A. Gender Marker
[11]   Authority for trial courts to issue orders requiring that the Indiana State

       Department of Health (ISDH) change an individual’s gender marker on his

       birth certificate stems from a decision of this Court. In re Pet’n for Change of Birth

       Certificate, 22 N.E.3d 707 (Ind. Ct. App. 2014). In Birth Certificate, the trial court

       had denied the petition of a transgender man to change his gender marker,

       finding that it had no authority to grant the request. In considering the issue,

       we examined Indiana Code section 16-37-2-10(b), which provides that the

       ISDH “may make additions to or corrections in a certificate of birth on receipt

       of adequate documentary evidence . . . .” This Court reasoned as follows:


               Like name changes, the ISDH defers to the courts by requiring a
               court order to establish adequate documentary evidence for an
               amendment of gender on a birth certificate. Courts in our state
               have entered such orders. Further, the Indiana Bureau of Motor
               Vehicles expressly recognizes “certified amended birth
               certificate[s] showing a change in . . . gender” as proof of identity
               to obtain, renew, or amend an Indiana driver’s license or
               identification card. See 140 Ind. Admin. Code 7-1.1-3(b)(1)(B)
               and (K).


               Though never addressed by this court, the amendment of a birth
               certificate with respect to gender is not novel. The vast majority
               of states, including Indiana, have allowed it in practice for some
               time.


               I.C. § 16-37-2-10 provides general authority for the amendment
               of birth certificates, without any express limitation (in the statute
               or elsewhere) regarding gender amendments. In light of this
               statute, as well as the inherent equity power of a court of general

       Court of Appeals of Indiana | Opinion 79A02-1703-MI-473 | August 10, 2017    Page 9 of 15
               jurisdiction, we conclude that the trial court had authority to
               grant the petition at hand.


       Id. at 708-09 (internal footnotes and citations omitted). We noted the absence

       of legislative guidance regarding what evidence is required in support of a

       petition for a gender marker change, ultimately holding that “[w]ithout such

       guidance . . . it is our view that the ultimate focus should be on whether the

       petition is made in good faith and not for a fraudulent or unlawful purpose.”

       Id. at 710.


[12]   The relevant statutes have not been substantively amended since Birth Certificate

       was decided. There is no statute or rule requiring that an individual seeking a

       gender marker change publish notice of that intent. In this case, the trial court

       likened gender marker changes to name changes, but the statutory requirement

       for publication in name change cases does not apply to gender marker changes.

       It was erroneous to create a requirement where none exists.


[13]   Unless and until the General Assembly crafts specific requirements regarding

       gender marker changes, this Court’s common sense standard in Birth Certificate

       is the bar that must be met. Thus, a gender marker change petitioner needs to

       establish that the petition is made in good faith and not for a fraudulent or

       unlawful purpose. If a trial court determines that the petitioner has met that

       standard, no further requirements need to be met and the petition should be

       granted. Here, the trial court found that both A.L. and L.S. sought a gender

       marker change in good faith and with no intent to defraud. Appellants’ App.

       Vol. II p. 13, 16. As such, the trial court should have granted their petitions for
       Court of Appeals of Indiana | Opinion 79A02-1703-MI-473 | August 10, 2017   Page 10 of 15
       gender marker change. We reverse on this issue and remand with instructions

       to grant both petitions and issue orders directing the ISDH to amend both birth

       certificates to reflect their male gender.


                                           B. Name Change
[14]   L.S. argues that the trial court erroneously ordered that he publish notice of his

       intent to change his name. As a general rule, upon filing a petition for a name

       change, a petitioner must, in relevant part, give notice of the petition by three

       weekly publications in a newspaper of general circulation published in the

       county where the petition was filed. Ind. Code § 34-28-2-3(a). Except for

       Administrative Rule 9, to which we turn next, there is no exception to this

       general publication requirement. Consequently, unless Administrative Rule 9

       applies, a transgender individual seeking a name change must publish the

       petition just as any other individual seeking a name change.


                                    II. Administrative Rule 9
[15]   A petition to change one’s name under Indiana Code chapter 34-28-2 is,

       however, explicitly “subject to Indiana Rules of Court Administrative Rule 9.”

       I.C. § 34-28-2-2.5(b). We must determine, therefore, whether L.S. is entitled to

       relief under Administrative Rule 9.


[16]   Administrative Rule 9 “governs public access to, and confidentiality of, Court

       Records.” Ind. Administrative Rule 9(A). The rule seeks to balance, among

       other things, the risk of injury to individuals with the promotion of accessibility

       to court records as well as governmental transparency. Id. The Commentary

       Court of Appeals of Indiana | Opinion 79A02-1703-MI-473 | August 10, 2017   Page 11 of 15
       notes that the rule “attempts to balance competing interests and recognizes that

       unrestricted access to certain information in Court Records could result in an

       unwarranted invasion of personal privacy or unduly increase the risk of injury

       to individuals and businesses.” Id. cmt.


[17]   As a general rule, all court records are publicly accessible. Admin. R. 9(D)(1).

       There is, however, a list of exceptions to that general rule, which are found in

       Rule 9(G). Relevant to this appeal is an exception providing that a court record

       that would otherwise be publicly accessible may be excluded from public access

       upon a verified written request demonstrating that “[a]ccess or dissemination of

       the Court Record will create a significant risk of substantial harm to the

       requestor . . . .” Admin. R. 9(G)(4)(a)(ii).


[18]   In this case, L.S. presented the following evidence:


           • Transgender individuals are disproportionately subject to violence and
             homicide. Appellants’ App. Vol. II p. 71.
           • LGBT people are more likely than any other minority group to
             experience hate crimes in the United States. Id.
           • In 2016, twenty-six transgender individuals were murdered in the United
             States. Id.
           • A survey of transgender people in Indiana revealed that 74% of
             respondents experienced harassment or mistreatment on the job; 73%
             reported harassment in their elementary, middle, and high schools; and
             27% reported physical assault.
           • L.S. is “aware of the high rates of violence against transgender people in
             Indiana and nationwide” and fears that he “will experience threats and
             actual violence if the record of [his] Change of Name and Gender is
             public.” Id. at 52.



       Court of Appeals of Indiana | Opinion 79A02-1703-MI-473 | August 10, 2017   Page 12 of 15
           • L.S. has personally “witnessed a person, friend of mine, male to female
             transgender individual, a person get out of the car and come and grab her
             by her hair and shoved her face into the sidewalk, and uh, you know,
             hitting her. I mean blood . . . .” Tr. p. 36.
           • L.S. has experienced discrimination because of his transgender identity,
             testifying that he lost an internship opportunity because the interviewer
             discovered that the way in which L.S. was identified by Social Security
             did not “match” with how he appeared. Id. at 34.
           • L.S. testified that he believes that if information about his transgender
             status became public, he would be “at great risk for potential harm. . . . I
             mean it could be anything. I – I – I uh, violence, death, you know, it just
             depends on who – who gets a hold of me you know.” Id. at 35-36.

       The trial court found, based on this evidence, that the transgender community

       is “disproportionately targeted for violence” as a result of gender identity.

       Appellants’ App. Vol. II p. 18. The trial court acknowledged “the

       demonstrable violence and harassment suffered by the transgender[]

       community as a whole.” Id. It also found, however, that L.S. did not establish

       that he had been subject to specific threats or violence; that publishing his

       petition would subject him to an increased risk of violence or harassment that

       exceeds what he already faces as a member of the transgender community; or

       that the public filing of such court cases has resulted in targeted violence against

       transgender individuals. Id.


[19]   Initially, we return to the language of Administrative Rule 9(G)(4), which

       requires that L.S. establish that publication of notice of his petition would create

       “a significant risk of substantial harm” to him. Publication must occur multiple

       times in a newspaper of general circulation; among other things, it would reveal



       Court of Appeals of Indiana | Opinion 79A02-1703-MI-473 | August 10, 2017   Page 13 of 15
       L.S.’s birth name and new desired name. I.C. § 34-28-2-3(b). Thus, to publish

       this notice would be to “out” L.S. as a transgender man to the general public.


[20]   L.S. provided evidence that, as an out member of the transgender community,

       he would face a significantly higher risk of violence, harassment, and homicide.

       He has personally witnessed a transgender friend being violently assaulted

       because of her gender identity. He has personally experienced discrimination in

       the workplace after a discrepancy between the way he looked and the way he

       was identified by Social Security outed him as a transgender individual.

       Publication of his birth name and new name would enable members of the

       general public to seek him out, placing him at a significant risk of harm. And in

       today’s day and age, information that is published in a newspaper is likely to be

       published on the Internet, where it will remain in perpetuity, leaving L.S. at risk

       for the rest of his life. There was no evidence in opposition to L.S.’s evidence.


[21]   Under these circumstances, we find that L.S. established that publication of

       notice of his petition for a name change would create a significant risk of

       substantial harm to him. As a result, the trial court should have granted his

       requests to seal the record and waive publication pursuant to Administrative

       Rule 9. We remand with instructions to ensure that the record of this case

       remains sealed, and for consideration of L.S.’s petition for a name change.




       Court of Appeals of Indiana | Opinion 79A02-1703-MI-473 | August 10, 2017   Page 14 of 15
[22]   The judgment of the trial court is reversed in part and remanded with

       instructions and for consideration of L.S.’s petition for a name change.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 79A02-1703-MI-473 | August 10, 2017   Page 15 of 15
