                                                                               FILED
                                                                           Jun 21 2019, 7:51 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 M.E.B.,                                          Court of Appeals Case No.
                                                           19A-MI-118
M.E.B.,
                                                           Appeal from the Orange Circuit
Appellant-Petitioner.                                      Court
                                                           The Honorable Steven L. Owen,
                                                           Judge
                                                           Trial Court Cause No.
                                                           59C01-1809-MI-272



Baker, Judge.




Court of Appeals of Indiana | Opinion 19A-MI-118 | June 21, 2019                               Page 1 of 11
[1]   M.B. 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 found that she did not meet her

      burden under Rule 9. We disagree. Therefore, we reverse and remand with

      instructions that this case shall remain sealed and for further proceedings.


                                                       Facts
[2]   M.B. was assigned male at birth but identifies as female. On September 24,

      2018, M.B. filed a verified petition for change of name and gender marker and a

      verified written request to prohibit public access pursuant to Administrative

      Rule 9, asking the trial court to waive the publication requirement and seal the

      record.


[3]   In support of her request to prohibit public access, M.B. attested as follows: “I

      am aware of the high rates of violence, discrimination, and invasion of privacy

      against transgender people in Indiana and nationwide[.] I fear that if the public

      knows I am transgender, I will personally experience violence, discrimination,

      and an invasion of my privacy.” Appellant’s App. Vol. II p. 14. M.B. also

      included data about “the high rates of violence, discrimination, [] invasion of

      privacy,” and harassment both nationwide and in Indiana. Id. at 14-16. She

      also noted that she feared for her safety


              because of my personal experience with violence and
              discrimination in my community. I know of a man in Orange
              County who has outspoken anti-trans views and has said that if
              he finds out about a trans person, he will kill them. I have also

      Court of Appeals of Indiana | Opinion 19A-MI-118 | June 21, 2019            Page 2 of 11
              faced discrimination from pharmacists when they discovered my
              gender identity.


      Id. at 16.


[4]   On November 19, 2018, the trial court held a hearing on M.B.’s request to

      prohibit public access. M.B. testified at the hearing. Among other things, she

      explained her fears to the trial court:


          • “I believe it would be dangerous [if people learned that she was changing
            her name and gender marker]. There’s lots of people, both within the
            United States and within the State of Indiana that would like to harm
            transgender people and there are some in Orange County that I do know
            of that it would be dangerous for me and I could get killed.” Tr. Vol. II
            p. 8.
          • “I have [personally faced discrimination based on gender identity] when
            picking up my prescriptions at the Paoli Walmart pharmacy one of the
            ladies that works there didn’t want to serve me and I had to get someone
            else to help me.” Id. at 9.
          • “. . . I’m on Facebook quite a bit and there’s someone who lives in Paoli,
            they have a red truck and they said if they knew someone was
            transgender and they saw them they would shoot them.” Id.

      Following the hearing, M.B. filed a supplemental memorandum regarding the

      request to prohibit public access.


[5]   On December 4, 2018, the trial court denied M.B.’s request to prohibit public

      access. Among other things, the trial court found as follows:


              9.       At the hearing, only the testimony of [M.B.] was
                       presented. [M.B.’s] 2 ½ minute testimony is summarized
                       as follows:


      Court of Appeals of Indiana | Opinion 19A-MI-118 | June 21, 2019          Page 3 of 11
                  a.       . . . [M.B.] testified that he/she [sic1] suffers from
                           “gender identity disorder”. [M.B.] stated his/her
                           [sic] name and gender marker are not correct.
                           [M.B.] “perceives” himself/herself [sic] as a female
                           however he/she [sic] was “assigned male
                           hardware”. This has created problems with how
                           he/she [sic] perceives himself/herself [sic]. [M.B.]
                           came to Court wearing women’s clothing and
                           hairstyle. [M.B.] had makeup on and spoke in a
                           feminine voice. He [sic] requested that Court refer
                           to her as [M.B.].


                                                    ***


         11.      . . . [I]t is readily apparent that [M.B.’s] evidence falls
                  considerably short of proving by clear and convincing
                  evidence that publication of the notice of the petition in
                  this case would create “a significant risk of substantial
                  harm”. [M.B.] has failed to prove that following the
                  statutorily mandated procedure of giving notice, in and of
                  itself, would create a significant risk of substantial harm.
                  No evidence was presented of any violence that has
                  resulted to [M.B.] because of his/her [sic] trans-
                  gender [sic2] identity. No evidence was presented of
                  violence being perpetrated against an Indiana resident who
                  identifies as trans-gender [sic]. A generalized statement of
                  two violent acts occurring in [other states] is not persuasive




1
  Throughout its order, the trial court fails or refuses to use M.B.’s preferred pronoun. The order is also
permeated with derision for M.B. We would hope that the trial courts of this state would show far greater
respect (as well as objectivity and impartiality) to all litigants appearing before them.
2
 “Transgender” is one word, with no hyphen. See, e.g., Merriam-Webster Dictionary, at
https://www.merriam-webster.com/dictionary/transgender (last visited June 10, 2019); MacMillan
Dictionary, at https://www.macmillandictionary.com/us/dictionary/american/transgender (last visited June
10, 2019); Dictionary.com, at https://www.dictionary.com/browse/transgender (last visited June 10, 2019).

Court of Appeals of Indiana | Opinion 19A-MI-118 | June 21, 2019                                  Page 4 of 11
                       to ignore the legal requirements of obtaining a name
                       change pursuant to I.C. 34-28-2-3.


              12.      In [M.B.’s] pleadings there were concerns presented that
                       giving notice by publication could be harmful to [M.B.] by
                       “outing” the petitioners [sic] trans-gender [sic] identity or
                       making public his [sic] trans-gender [sic] diagnosis.
                       However, those concerns are not present here. The
                       Petitioners [sic] actions, dress, and demeanor profess to all
                       that he/she [sic] is trans-gender [sic]. It is not a secret or
                       private diagnosis. It is readily apparent and obvious to the
                       public. Following the statutorily mandated legal notice
                       requirement will not “out” [M.B.], [M.B.’s] actions have
                       already done that.


      Appellant’s App. Vol. II p. 7-10. M.B. now brings this interlocutory appeal.


                                    Discussion and Decision
[6]   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.


[7]   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” 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 . . . .” Id. at 285.




      Court of Appeals of Indiana | Opinion 19A-MI-118 | June 21, 2019              Page 5 of 11
[8]    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


[9]    Here, the trial court found that M.B. did not provide sufficient evidence to

       support her claim that maintaining public access to her case records (including

       the requirement of notice publication) would create a significant risk of

       substantial harm to her.


[10]   The trial court had two primary reasons for its denial of M.B.’s Administrative

       Rule 9 petition. First, it noted that she had failed to provide evidence of “any

       violence that has resulted to [M.B.]” because of her gender identity or of

       “violence being perpetrated against an Indiana resident” who identifies as




       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
       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 19A-MI-118 | June 21, 2019                                    Page 6 of 11
       transgender. Neither of these forms of evidence is required. Indeed, in A.L.,

       the trial court, in denying one of the petitions before it, found as follows:


                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.


       81 N.E.3d at 290. This Court explicitly disapproved of that reasoning, noting

       the sobering statistics regarding the risk of harassment, violence, and homicide

       to the transgender population, both nationwide and in Indiana. Id. We

       likewise found 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 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.


[11]   In other words, the fact that M.B. did not provide evidence that she, herself, or

       other citizens of Indiana4 have been a target of violence is of no moment. The

       goal of Rule 9 is proactive; it seeks to prevent harm. To force petitioners to wait




       4
         Though in fact, M.B. did provide evidence of a specific act of violence to a transgender person in Indiana.
       Appellant’s App. Vol. II p. 15. She also provided evidence of a specific act of discrimination that she has
       faced as a result of her gender identity. Tr. Vol. II p. 9.

       Court of Appeals of Indiana | Opinion 19A-MI-118 | June 21, 2019                                   Page 7 of 11
       until they have already experienced that harm would vitiate the purpose of the

       rule.


[12]   Rather than focus on the evidence that M.B. did not provide, the trial court

       should have focused on the evidence she did provide. With respect to the

       general rates of discrimination, harassment, violence, and homicide

       experienced by people who are transgender, M.B. provided the following

       evidence:


               8.       Data shows that transgender individuals are
                        disproportionately impacted by violence and homicide.
                        Between 2013 and 2015, hate crimes against transgender
                        people increased 239 percent, with LGBT people more
                        likely than any other minority group to experience hate
                        crimes in the United States. Haeyoung Park and Iaryna
                        Mykhyalyshyn, L.G.B.T. People Are More Likely to Be Targets
                        of Hate Crimes Than Any Other Minority Group, N.Y. Times,
                        June 16, 2016.


               9.       The systemic violence transgender people experience
                        neither begins nor ends with hate crimes, physical assault
                        or homicide. Transgender people are more likely than the
                        general population to experience discrimination,
                        harassment, and violence in every facet of life, including
                        family relations, education, employment, housing, public
                        accommodations, obtaining accurate identification
                        documents, and accessing adequate and appropriate
                        medical treatment. See e.g. James et al., The Report of the
                        2015 U.S. Transgender Survey (2016), available at
                        http://www.ustranssurvey.org/reports/; National Coalition
                        of Anti-Violence Programs, A Report from the National Coalition
                        of Anti-Violence Programs: Lesbian, Gay, Bisexual, Transgender,
                        Queer, and HIV-Affected Hate Violence in 2013 (2014),

       Court of Appeals of Indiana | Opinion 19A-MI-118 | June 21, 2019              Page 8 of 11
                  available at
                  http://www.avp.org/storage/documents/2013_ncavp_hv
                  report_final.pdf[5]; Jaime M. Grant et al., Injustice at Every
                  Turn: A Report of the National Transgender Discrimination
                  Survey 2 (2011), available at
                  http//www.thetaskforce.org/downloads/reports/reports/
                  ntds_full.pdf.


         10.      This is no less true in the state of Indiana. A survey of
                  transgender people in Indiana conducted in conjunction
                  with the National Transgender Discrimination Survey
                  found that 73% of respondents reported harassment in
                  their K-12 school; and 27% reported physical assault.
                  National Center for Transgender Equality and the
                  National Gay and Lesbian Task Force, Findings of the
                  National Transgender Discrimination Survey: Indiana Results
                  (2015), available at
                  http://www.transequality.org/sites/default/files/docs/us
                  ts/USTSINStateReport%281017%29.pdf. In another
                  study of Transgender Hoosiers, 74% of respondents
                  reported experiencing harassment or mistreatment on the
                  job. Christy Mallory and Brad Sears, Employment
                  Discrimination Based On Sexual Orientation and Gender
                  Identity in Indiana, August 2017, available at
                  https://williamsinstitute.law.ucla.
                  edu/research/in_discrimination_ aug_2017/[6].


         11.      Often, this violence is fatal. In 2016, an Indiana
                  transgender woman was shot in the face while her attacker
                  yelled anti-transgender sentiments. Alleged Hate Group



5
 We found a better citation for this resource to be as follows: http://avp.org/wp-
content/uploads/2017/04/2013_ncavp_hvreport_final.pdf.
6
 We found a better citation for this resource to be as follows: https://williamsinstitute.law.ucla.edu/wp-
content/uploads/IN_discrimination_Aug_2017.pdf.

Court of Appeals of Indiana | Opinion 19A-MI-118 | June 21, 2019                                 Page 9 of 11
                        Member Charged in Shooting of Trans Woman in Indiana, The
                        Advocate (July 17, 2016), available at
                        http://www.advocate.com/transgender/2016/7/17/alleg
                        ed-hate-group-member-charged-shooting-trans-woman-
                        indiana. Across the nation, violence against transgender
                        individuals is on the rise. Maggie Astor, Violence Against
                        Transgender People Is on the Rise, Advocates Say, N.Y. Times,
                        Nov. 9, 2017.


       Appellant’s App. Vol. II p. 14-16. And M.B. also offered evidence of two

       specific instances causing her to believe she is at great risk of public harm:


           • “I have [personally faced discrimination based on gender identity] when
             picking up my prescriptions at the Paoli Walmart pharmacy one of the
             ladies that works there didn’t want to serve me and I had to get someone
             else to help me.” Tr. Vol. II p. 9.
           • “. . . I’m on Facebook quite a bit and there’s someone who lives in Paoli,
             they have a red truck and they said if they knew someone was
             transgender and they saw them they would shoot them.” Id.

       We find that this evidence readily supports M.B.’s argument that, if she had to

       publish notice of her name change petition and maintain a publicly open case

       file, she would be at significant risk of substantial harm. The trial court erred in

       ruling otherwise.


[13]   Second, we are compelled to address the trial court’s conclusion that M.B.

       could not be “outed” because of the way she presents in person. This subjective

       assessment is not an element of an Administrative Rule 9 petition, nor should it

       be. Appearance is in the eye of the beholder, and regardless of the trial court’s

       own opinions about how men and women “should” look, M.B. has the right to


       Court of Appeals of Indiana | Opinion 19A-MI-118 | June 21, 2019            Page 10 of 11
       appear as she desires while maintaining public confidentiality about her gender

       identity. This was a wholly improper reason to deny M.B.’s petition.


[14]   The trial court should have granted M.B.’s Administrative Rule 9 petition to

       waive publication of notice of her name change and to seal her case record.


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

       this case shall remain sealed and for further proceedings.


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




       Court of Appeals of Indiana | Opinion 19A-MI-118 | June 21, 2019       Page 11 of 11
