Dispute Over ‘Correcting’ Sex on Transgender Birth Record Heads to Ohio Supreme Court

Some Ohio counties would have rubber-stamped Hailey Adelaide’s request to change an official birth record “sex marker” from male to female.

But Adelaide, who was born with obvious male anatomy but has lived as a female, lodged the request in a county where officials believe state law gives them no authority to alter that aspect of a birth certificate.

Now Adelaide’s dispute is heading to the state’s highest court amid national debates over a flurry of transgender issues, including pending lawsuits attacking transgender birth certificate policies in  Montana and Tennessee.

The Ohio Supreme Court agreed to accept Adelaide’s case on Oct. 11. Coincidentally, on that date, the national LGBT community was marking National Coming Out Day to encourage and support people who openly declare they are transgender, like Adelaide, or consider themselves lesbian, gay, or bisexual.

Case Clears Hurdle

Although some appeals to Ohio’s highest court are automatic, Adelaide’s case did not fall into that category.

The court could have rejected it, which is what happens with 93 percent of discretionary appeals, according to a law firm’s analysis of the court’s data.

But Adelaide’s lawyers persuaded the court to accept the case, so the justices can “resolve substantial constitutional questions and issues of public and great general interest,” they wrote in court records.

Attorneys representing Adelaide are asking the court to reverse lower court rulings and order officials to prepare a new, revised birth certificate declaring that their client is officially female.

They also want the Supreme Court to address the state’s inconsistent handling of other requests to change sex markers on birth certificates.

Adelaide testified that the original birth certificate was issued with an “error,” the male sex marker, because that notation was based on physical attributes, without regard to “mental state,” a court record says.

However, the Ohio 2nd District Court of Appeals in Dayton found that the initial birth certificate for Adelaide correctly recorded “male” based on observed anatomy. Thus, “there was nothing to be corrected,” the appeals court said in its August ruling.

Law Unclear

Ohio law distinguishes between corrections and amendments on birth certificates. Corrections are allowed only to fix “errors at the time of recordation,” the court said.

Amendments are permitted under specific circumstances, such as adoptions, but there is no provision for amending the sex marker on a birth record, the court said.

That ruling, issued in August, effectively bars probate courts from granting such requests, Adelaide’s lawyers said.

The appeals court’s rulings apply to six counties under its jurisdiction: Champaign, Clark, Darke, Greene, Miami, and Montgomery.

While probate courts in some of Ohio’s remaining 82 counties have been approving transgender birth certificate changes, a handful of others have been turning them down, court records say. The denials are based on a “narrow interpretation” of state law, Adelaide’s lawyers say.

Ohio An Outlier

Ohio’s transgender birth certificate dilemma is unusual.

Nearly all U.S. states allow transgender people to obtain birth certificates with a sex marker revised to match their declared gender, regardless of anatomy or biology.

About a dozen states allow a “gender-neutral” or “gender X” designation on birth certificates.

Restrictions are in place or in flux in only three states: Ohio, Montana and Tennessee.

For some period before 2015, Ohio had allowed sex to be amended on birth certificates. That year, state officials re-evaluated the practice and stopped it in 2016, citing a lack of legal authority under Ohio law.

In 2018, several transgender people sued, seeking to force the state to allow sex-marker charges on birth certificates.

Two years later, a federal judge ruled it was unconstitutional for the Ohio Department of Health to refuse to process transgender “Court-Ordered Correction of Birth” forms from probate courts.

However, the ruling doesn’t explicitly require probate courts to issue those orders in response to every request—and the 2nd District’s recent ruling in Adelaide’s case has further clouded the birth-certificate correction process, Adelaide’s lawyers said.

They called upon the Supreme Court to shed “guiding light” on the issues.

Chad Eggspuehler, a Cleveland lawyer, represents Adelaide, along with attorney Maya Simek of the Equality Ohio Legal Clinic, which specializes in LGBT issues.