                                                                        FILED
                                                                    Jun 21 2019, 7:12 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEYS FOR APPELLANT
Michael R. Limrick
Hoover Hull Turner LLP
Indianapolis, Indiana
Megan Stuart
Indiana Legal Services, Inc.
Bloomington, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Name                                  June 21, 2019
Change of K.H.,                                            Court of Appeals Case No.
                                                           18A-MI-3077
K.H.,
                                                           Appeal from the Hamilton Circuit
Appellant-Petitioner.                                      Court
                                                           The Honorable Paul A. Felix,
                                                           Judge
                                                           Trial Court Cause No.
                                                           29C01-1808-MI-7453



Baker, Judge.




Court of Appeals of Indiana | Opinion 18A-MI-3077 | June 21, 2019                           Page 1 of 12
[1]   K.H. is a transgender woman who seeks to change her name and gender

      marker. She filed requests to waive publication and seal the record pursuant to

      Indiana Administrative Rule 9. The trial court directed her to publish notice of

      the Rule 9 hearing in a newspaper and to notify the Indiana Attorney General.

      While the trial court did not require her to include her name, it required her to

      include her cause number, date and time of hearing, and the fact that she

      desired to change her name from a traditionally male name to a traditionally

      female one. We find that these directives were erroneous. We also find that

      the record supports K.H.’s Administrative Rule 9 requests. We therefore

      reverse and remand with instructions that this case shall remain sealed and for

      further proceedings.


                                                            Facts
[2]   K.H. was assigned male at birth but identifies as female. On August 14, 2018,

      K.H. filed a verified petition to change her name and gender marker; a verified

      request for waiver of publication; a verified request to seal the record pursuant

      to Administrative Rule 9; and an affidavit supporting her requests to waive

      publication and seal the record.1 The next day, the trial court ordered the case

      sealed temporarily and set the matter for a hearing.


[3]   In advance of that hearing, the trial court ordered K.H. to do two things. First,

      it ordered her to publish notice of her desire for a name change. While it did




      1
          K.H. initiated the matter pro se but later retained counsel.


      Court of Appeals of Indiana | Opinion 18A-MI-3077 | June 21, 2019        Page 2 of 12
      not require her to include her name, it required the notice to state that “[t]he

      Petitioner desires to change the Petitioner’s own name from a name commonly

      used by males to a name more commonly used by females” and to include the

      cause number and date and time of the hearing so that objectors could be

      present. Appellant’s App. Vol. II p. 16. Second, it ordered her to give notice of

      the hearing to the Indiana Attorney General.


[4]   On September 14, 2018, K.H. filed a motion asking the trial court to reconsider

      its demands that she publish notice and notify the Attorney General of her

      requests to waive publication and seal the record. The trial court denied the

      motion because the public “should be given a general idea as to why the

      petitioner is seeking to exclude the records from public access” and because the

      Attorney General should be able to “make a determination whether to ask to

      intervene.” Id. at 29.


[5]   On November 7, 2018, K.H. submitted a supplemental affidavit supporting her

      Rule 9 request. Among other things, she attested as follows:


          • Publishing notice and notifying the Attorney General “will cause me to
            suffer the immediate and irreparable harm that I understood was to be
            prevented by my request to maintain the confidentiality of my requests to
            change my name and gender.”
          • The notice required by the trial court “would be an invitation to the
            public to come to the Court and offer their opposition to my very
            existence as a trans woman . . . . I understand the Court’s order does not
            require me to specifically say that I am changing my gender, but that is
            the reasonable presumption that would be made by someone reading
            language that I intend to change my name from one commonly
            associated with males to one commonly associated with females.”

      Court of Appeals of Indiana | Opinion 18A-MI-3077 | June 21, 2019         Page 3 of 12
          • “All of this puts a huge target on my back for people who dislike and
            hate transgender people. I do not believe that I can comply with the
            Court’s notice requirements without being subjected to all forms of
            transphobic persecution.”
          • “I am also worried that my family and loved ones will also be targeted
            and terrorized because of who I am.”
          • “Publishing a notice that tells people I am trans and inviting them to the
            hearing would give power to the community to dictate my life. No one
            has the right to dictate anyone’s life, especially when they are just trying
            to live their best life and be happy. This is my life. This is who I am.”
          • “All I am trying to do is overcome obstacles and the challenges of being
            accepted as my real self.”
          • “Please let me live my life like everyone else without having to risk
            death.”

      Id. at 31-33.


[6]   On November 27, 2018, the trial court held a hearing on K.H.’s motions to

      waive publication and seal the record. On November 30, 2018, the trial court

      denied the motions because K.H. did not publish the above-described notice

      and did not notify the Attorney General. The trial court certified the order for

      interlocutory appeal.


                                    Discussion and Decision
[7]   We apply a de novo standard of review to matters of law, including the

      construction of statutes and rules. In re A.L., 81 N.E.3d 283, 288 (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.




      Court of Appeals of Indiana | Opinion 18A-MI-3077 | June 21, 2019         Page 4 of 12
[8]   We have considered this set of issues before. In In re A.L., we found that “there

      is no statutory requirement to publish notice of intent to change one’s gender

      marker”2 and that “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 . . . .” 81 N.E.3d 283, 285 (Ind. Ct. App. 2017).


[9]   In A.L., we noted that as a general rule, a petitioner seeking a name change

      must give notice of the petition in a qualifying newspaper. The legislature has

      deemed Indiana Code chapter 34-28-2 to be subject to Administrative Rule 9,

      which provides that as a general rule, all court records are publicly accessible.

      Ind. Administrative Rule 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 the

      exception for cases in which “[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).3




      2
        Although we find the publication requirement in this case as a whole to be erroneous, we note that the trial
      court’s astonishing demand that K.H. include in the published notice the fact that she “desires to change [her]
      own name from a name commonly used by males to a name more commonly used by females,” appellant’s
      app. vol. II p. 16, is plainly an attempt at an end-run around the legislature. There is no statute or rule
      requiring that an individual seeking a gender marker change publish notice of that intent. Had the trial court
      truly only wanted her to notify the public that she intended to change her name, there would have been no
      need to require the gender specific language in the notice. It is apparent that the trial court intended to force
      K.H. to signal implicitly to the world that she seeks to change her gender. In so doing, it exceeded its
      authority.
      3
        We also note that this case may fall under the exception for case records that are excluded from public
      access or declared confidential by Indiana statute or other court rule. Admin. R. 9(G)(2)(b). Medical and
      mental health records are confidential and protected from public disclosure. E.g., Ind. Code § 16-39-3-10
      (declaring that a patient’s mental health records and testimony related to a patient’s mental health offered in

      Court of Appeals of Indiana | Opinion 18A-MI-3077 | June 21, 2019                                   Page 5 of 12
[10]   When seeking to waive publication and seal the record in such a case, the

       petitioner is required to take a number of steps. Relevant here is the notice

       requirement, which states as follows:


                (b)      Notice and Right to Respond.


                         (i)      The person seeking to prohibit access has the
                                  burden of providing notice to the parties and such
                                  other persons as the Court may direct.


                         (ii)     The person seeking to prohibit access shall provide
                                  proof of notice to the Court or the reason why notice
                                  could not or should not be given consistent with the
                                  requirements found in Trial Rule 65(B).


                         (iii)    A party or person to whom notice is given shall
                                  have twenty (20) days from receiving notice to
                                  respond to the request.


       Admin. R. 9(G)(4)(b) (emphases added).


[11]   Here, the trial court couched its notice requirements of K.H. under subsection

       (b)(i), finding that both the general public and the Attorney General qualify as

       “such other persons as the Court may direct.” While there is no explicit limit

       on the trial court’s discretion in naming people to be notified, it is certainly the

       case that its discretion is not unfettered. It could not, for example, require a




       a legal proceeding must be a confidential court record). A petitioner’s status as transgender will likely
       implicate both her medical and mental health records.

       Court of Appeals of Indiana | Opinion 18A-MI-3077 | June 21, 2019                                   Page 6 of 12
       name change petitioner to notify a specific person unknown to her and

       unrelated to the case that she sought the protections of Administrative Rule 9.

       Could the trial court here have required K.H. to notify the owner of Bub’s

       Burgers, or the CEO of Conner Prairie, or the mayors of Noblesville, Fishers,

       and Carmel—for that matter, could it have required her to notify her next-door

       neighbor? We think not. Given that the trial court may not require notice to

       specific people unrelated to the case, we have little difficulty taking the small

       step in logic to conclude that the trial court may not require notice by

       publication to the general public—in other words, everyone—that a name change

       petitioner seeks confidentiality.


[12]   To the extent that Administrative Rule 9 contemplates public notice, there is

       one, and only one, way the Rule contemplates that occurring. Rule

       9(G)(4)(c)(ii) requires that if the trial court does not initially deny the

       petitioner’s request to prohibit public access, it shall notify the public by posting

       advance notice of the hearing pursuant to Indiana Code section 5-14-2-5. That

       statute, in turn, directs notice to the general public be made by posting “a copy

       of the hearing notice at a place within the confines of the court accessible to the

       general public.” I.C. § 5-14-2-5.4 Neither the statute nor Administrative Rule 9

       provides for alternate forms of public notice—including notice by publication.




       4
        It is undisputed that this notice was, in fact, posted in this case, though we note that unfortunately, it
       contained the improper language discussed above in footnote 2.

       Court of Appeals of Indiana | Opinion 18A-MI-3077 | June 21, 2019                                     Page 7 of 12
       Therefore, the trial court exceeded its authority and erred by ordering K.H. to

       take this action.


[13]   As for the requirement that K.H. notify the Attorney General, here, too, we

       believe that the trial court has overstepped its authority. The legislature has

       never seen fit to name the Attorney General as a party in interest to name

       change cases or to Administrative Rule 9 cases. The trial court is not entitled to

       create a connection where one does not already exist legislatively. Under these

       circumstances, requiring that K.H. notify the Attorney General is no different

       from requiring that K.H. notify the mayor of Noblesville, which we have

       already found is outside the bounds of the trial court’s authority.


[14]   Moreover, even if we were to accept solely for argument’s sake that “such other

       persons as the Court may direct” could include the general public and the

       Attorney General, we note that the very next subsection provides that the

       petitioner can either provide proof of notice “or the reason why notice could

       not or should not be given consistent with the requirements found in Trial Rule

       65(B).” Admin. R. 9(G)(4)(b)(ii). Trial Rule 65(B) governs temporary

       restraining orders, providing that such an order may be granted without notice

       to the adverse party if


               (1)      it clearly appears from specific facts shown by affidavit or
                        by the verified complaint that immediate and irreparable
                        injury, loss, or damage will result to the applicant before
                        the adverse party or his attorney can be heard in
                        opposition; and



       Court of Appeals of Indiana | Opinion 18A-MI-3077 | June 21, 2019               Page 8 of 12
               (2)      the applicant’s attorney certifies to the court in writing the
                        efforts, if any, which have been made to give notice and
                        the reasons supporting his claim that notice should not be
                        required.


       In name change cases, there is no adverse party, meaning that Trial Rule 65(B)

       is not a perfect fit. But we interpret Administrative Rule 9 to indicate that, in

       name change cases, a petitioner seeking to waive publication and seal the

       record need not notify the public, or anyone else, of the proceeding if (1) it

       clearly appears from specific facts shown by affidavit or by verified pleadings

       that immediate and irreparable injury, loss, or damage will result to the

       petitioner if notice of the proceeding is required; and (2) the petitioner or her

       attorney certifies to the court the reasons why notice should not be required.


[15]   In this case, K.H. met those requirements. First, she submitted an affidavit

       attesting that she is afraid “that if the public knows I am transgender, I will

       experience violence, discrimination and an invasion of my privacy. I am aware

       of the high rate of violence, discrimination, and invasion of privacy against

       transgender people and I fear I too will experience that violence, discrimination

       and invasion of privacy as a transgender female.” Appellant’s App. Vol. II p.

       15. She then submitted a supplemental affidavit explaining as follows:


               2.       Respectfully, I cannot provide the notice required by the
                        Court. Interacting with the Noblesville Times, its
                        readership, and the Attorney General’s office will cause
                        me to suffer the immediate and irreparable harm that I
                        understood was to be prevented by my request to maintain
                        the confidentiality of my requests to change my name and
                        gender.
       Court of Appeals of Indiana | Opinion 18A-MI-3077 | June 21, 2019                 Page 9 of 12
                                                  ***


        4.       Going to a newspaper and asking to publish the language
                 from the Court’s orders, would effectively be outing me. I
                 would have to engage with their employees and explain
                 that the Court intends to have a hearing—not only for the
                 purpose of determining whether this matter should remain
                 confidential, but also by stating the underlying purpose of
                 the matter[] to them that I am trying to change my name
                 and gender.


        5.       The notice itself, if published, would be an invitation to
                 the public to come to the Court and offer their opposition
                 to my very existence as a trans woman and my request to
                 change my gender. . . .


        6.       The same goes with the requirement to send a notice to the
                 Attorney General, who I cannot imagine would have any
                 actual interest in a request to keep this matter confidential
                 from the public.


        7.       All of this puts a huge target on my back for people who
                 dislike and hate transgender people. I do not believe that I
                 can comply with the Court’s notice requirements without
                 being subjected to all forms of transphobic persecution.


        8.       I am also worried that my family and loved ones will also
                 be targeted and terrorized because of who I am. . . .


Id. at 31-32. First, these attestations sufficiently establish that immediate and

irreparable injury, loss, or damage will result to K.H. if she is forced to provide

the notice demanded by the trial court. Second, K.H.’s counsel repeatedly

informed the court of the reasons why notice should not be required, in both the
Court of Appeals of Indiana | Opinion 18A-MI-3077 | June 21, 2019           Page 10 of 12
       motion to reconsider and at the Administrative Rule 9 hearing. Under these

       circumstances, it is readily apparent that K.H. has met the burden of showing

       why notice of her confidentiality request should not be given to the general

       public or to the Attorney General. Therefore, even if the trial court could have

       directed her to provide notice in such a fashion—which we have already found

       it could not—she has met the requirement to show that she need not, in fact,

       comply with that directive.


[16]   In sum, the trial court overstepped its authority by demanding that K.H.

       provide notice by publication and notice to the Attorney General of her intent

       to waive publication and seal the record of her name change case pursuant to

       Administrative Rule 9. Concomitantly, the trial court erred by denying her

       Administrative Rule 9 petition based on her failure to comply with its notice

       directives.


[17]   As to whether K.H. met her burden under Administrative Rule 9 that public

       access to her case records would create a significant risk of substantial harm to

       her, we find that she has. The portions of her affidavits quoted above show that

       if her status as a transgender person becomes publicly known, she would be at

       significant risk of violence and discrimination. Id. at 15; 31-33. Indeed, in A.L.,

       we acknowledged the sobering statistics regarding the risk of harassment,

       violence, and homicide to the transgender population, both nationwide and in

       Indiana. 81 N.E.3d at 290. We likewise noted that requiring a transgender

       person to publish 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

       Court of Appeals of Indiana | Opinion 18A-MI-3077 | June 21, 2019       Page 11 of 12
       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 [the

       transgender person] at risk for the rest of his life.” Id. at 290-91. Under these

       circumstances, and given the attestations of K.H. in her affidavits, we find that

       she met her burden under Administrative Rule 9 to waive publication and seal

       the case record.5


[18]   The judgment of the trial court is reversed and remanded with instructions that

       this case shall remained sealed and for further proceedings.


       Najam, J., and Robb, J., concur.




       5
         The trial court stated that even if it had determined it was necessary to seal the record, “it disagrees with
       [K.H.] that the record should be sealed forever.” Appellant’s App. Vol. II p. 7. Administrative Rule
       9(G)(4)(d)(iv) states that the trial court must use “the least restrictive means and duration when prohibiting
       access.” In this case, the “least restrictive” means of ensuring K.H.’s safety is to keep the case record sealed.
       Unless and until someone offers evidence that K.H. is no longer at significant risk of substantial harm if her
       transgender status becomes publicly known, her record must remain sealed. The only way in which a court
       record excluded from public access may be made accessible is through the procedures set forth in
       Administrative Rule 9(G)(7).

       Court of Appeals of Indiana | Opinion 18A-MI-3077 | June 21, 2019                                   Page 12 of 12
