A probate court's decision to deny an application to change the sex marker on the birth certificate of a transgender woman remains undisturbed by the Supreme Court of Ohio.

A divided Supreme Court announced today it could not reach a majority decision on whether state law allowed the Clark County Probate Court to change the sex marker on Hailey Adelaide’s birth certificate. The Court left undisturbed the Second District Court of Appeals decision, which found R.C. 3705.15 permits correction to a birth record only when the sex identified at birth was incorrectly recorded. The Second District concluded that Adelaide did not provide evidence that the record indicating she was born a male was incorrectly recorded at the time of her birth.

Justice Joseph T. Deters, joined by Chief Justice Sharon L. Kennedy and Justices R. Patrick DeWine, wrote that neither the appeals court nor the Supreme Court had the judicial power under the Ohio Constitution to consider Adelaide’s appeal. The justices argued the case lacked “adversity” because there was no interest adverse to Adelaide’s.

Justice Deters explained the Ohio Constitution grants courts judicial power to “decide actual controversies between parties legitimately affected by specific facts and to render judgments which can be carried into effect.” He noted some probate court orders, such as contesting a will, can be appealed, but other probate court functions, such as appointing commissioners of a park district board, are administrative and unappealable.

“Just as one cannot appeal a probate court’s decision on whom to place on a park district board, one cannot appeal a probate court’s decision on whether to change a sex marker on a birth certificate,” Justice Deters wrote.

Justices Patrick F. Fischer, Michael P. Donnelly, Melody Stewart, and Jennifer Brunner determined the Second District and Supreme Court had the authority to hear the case and adversity was not at issue. However, the majority rejecting the adversity argument could not agree on how to resolve the merits of the case. Justices Fischer, Donnelly, and Stewart would affirm the probate court’s decision. Justice Brunner would overrule the probate court.

Justice Fischer noted in an opinion that the adversity issue was raised for the first time during oral argument in the case. He wrote the proper step would have been for the Court to require additional briefing by Adelaide and any other interested party before the Court considered the issue. But since a majority of the Court declined to order supplemental briefing, Justice Fischer, based on his own research, found the argument unconvincing that the appellate court lacked jurisdiction to review the probate court’s decision due to a lack of adversity in this case. Justice Fischer emphasized that the Ohio Constitution requires adversity to invoke the jurisdiction of the common pleas court but that it does not contain the same requirement to invoke the jurisdiction of the appellate court.

But even if adversity was required at the appellate level, Justice Fischer found that the state registrar, who keeps vital statistics for the Ohio Department of Health, is likely the adverse party in the case because the General Assembly had tasked the state registrar with the duty “to administer and enforce” the rules to correct birth records. Had the Court addressed the merits of Adelaide’s appeal, he agreed with Justice Donnelly that R.C. 3705.15 does not allow corrections based on changes in circumstances after a person’s birth, and would have affirmed the Second District’s decision.

Justice Donnelly, joined by Justice Stewart, stated that he found the arguments against the adversity requirement by Justice Fischer and Justice Brunner more convincing than those raised by Justice Deters, and that he would reach the case’s merits. He wrote separately to explain his reasoning on why Adelaide was not entitled to change the birth certificate. Analyzing both the text of R.C. 3705.01 and the structure of state laws related to changing information on birth certificates, Justice Donnelly reasoned that Adelaide did not meet the law’s requirements for changing the sex marker of her birth certificate. He urged the legislature to change the law to recognize the concerns of transgender citizens.

Justice Brunner agreed the Court had the authority to hear the case, but would find the probate court had authority to make the changes. Justice Brunner wrote that prior to 2015, Ohio probate courts did grant requests from transgender individuals to change the sex marker, and a Department of Health policy change has muddied the interpretation of the law. She stated some counties permit a change and others do not, and probate judges would have benefitted from a Supreme Court decision.

“The General Assembly’s words are its words, and the plain meaning of them in R.C. 3705.15, without equivocation, is that birth certificates may be corrected when they are not properly and accurately recorded,” she wrote.

Birth Certificate Update Requested
In 1973, Adelaide was born and named Brian Edward DeBoard. Her birth certificate stated that name and indicated the gender as male. In 2021, Adelaide applied to the probate court to change the sex marker on her birth certificate from male to female.

At a hearing, she explained to the probate court that around the age of 4, she began to believe she was a female and that she now identifies as a female. In her view, the sex marker identifying her as male was incorrect because it did not consider how she would identify herself later in life. The probate court declined to change her sex marker. The court concluded it could only change the sex marker if the information was improperly recorded at the time of birth. Because Adelaide was born with male anatomy, the birth certificate indicating a male sex marker was not improperly recorded, the court ruled.

Adelaide appealed to the Second District. No one opposed her appeal. The Second District in 2022 affirmed the probate court’s decision.

Adelaide appealed to the Supreme Court, which agreed to hear the case. However, the justices could not agree on how to decide Adelaide’s case.

Appeal Should Be Dismissed, Three Justices Maintain
Citing the Court’s 1970 Fortner v. Thomas decision, Justice Deters explained that before the Supreme Court determined the merits of Adelaide’s appeal, it first had to ensure resolving the case was within its “judicial power.”

Judicial power extends only to actual controversies where there are competing legal interests, he explained.

“It is the existence of the adverse interest that matters, not whether the party has appeared to advocate for its interests,” Justice Deters wrote.

In Adelaide’s case, the legal interest of no other person or entity would be disadvantaged if the probate court granted her application, he stated.

The opinion stated a lack of an adverse interest is not uncommon for probate court matters because of its unique role under Ohio state law. A probate court performs a variety of functions where adversarial proceedings occur, such as deciding the validity of wills and trusts and determining actions to disinter human remains.

However, other probate matters, such as granting marriage licenses, solemnizing marriages, and making park district appointments are administrative and not adversarial. Changing birth certificates falls into the administrative role of the probate court ,and its decisions on these matters cannot be challenged through an appeal, because the matters lack the necessary adversity, the opinion noted.

Justice Deters did indicate in his opinion that while an appeal in this case is not appropriate, he argues Adelaide and others are not prevented from seeking relief through another form of litigation.

The Appellate Court’s Decision Should Be Affirmed, Justice Argues
Justice Fischer noted when the Court is concerned about its authority to decide a case and the matter has not been raised by the parties, the proper course is to request supplemental briefing. He wrote that analyzing Adelaide’s appeal without supplemental briefing on the adversity issue “was an egregious judicial mistake.”

In response to the argument that the appeal lacked adversity, Justice Fischer focused on the differing language in Article IV, Section 3 of the Ohio Constitution, which states the jurisdiction of the appellate courts, and Article IV, Section 4, which provides jurisdiction of the common pleas courts.

“To hold that the justiciability requirement applies to courts of appeals is to add language to Article IV, Section 3 of the Ohio Constitution that does not exist,” Justice Fischer concluded.

But even if adversity at the appellate level was required under the Ohio Constitution, Justice Fischer also found the Department of Health’s state registrar would have had an adverse interest under the office’s duties stated in R.C. 3705.03(A)(1).

“The General Assembly tasked the state registrar to head Ohio’s office of vital statistics and ‘[a]dminister and enforce’ the rules set forth in R.C. Ch. 3705.” And “[s]ince corrections of birth records are listed within R.C. Ch. 3705,” Justice Fischer concluded that “the state registrar has an interest in ensuring that applications to correct birth certificates are granted in accordance with the rule.” He argued that if the Court held that Ohio’s state registrar completely lacks any interest in enforcing these rules, then the Court reads R.C. 3705.03(A)(1) as meaningless.

Justice Fischer further pointed out that other statutes supported the state’s interest in maintaining accurate birth records. He noted one provision, R.C. 3705.15(B), allows for an application to register an unrecorded, lost, or destroyed birth certificate. The applicant may be cross-examined by a county prosecutor to verify the accuracy.

“If the State has an interest in an unrecorded, lost, or destroyed birth record, how does the State not have an interest in the correction of a birth record?” he wrote.

Because the Court should have considered the case, Justice Fischer analyzed the law and concluded that Adelaide was not entitled to have the sex marker changed. He agreed with Justice Donnelly’s analysis, which found the law does not allow for a change of the sex marker when there are changes in facts or circumstances that happen after the birth of the child.

“And despite the many policy concerns in this case, we cannot construe R.C. 3705.15 in a manner inconsistent with its plain language to right a perceived wrong. It is up to the General Assembly to decide whether to create any additional opportunities for persons born in Ohio to amend their birth records,” he wrote.

Justices Find Law Limits Right to Change Certificate
In a separate opinion, Justice Donnelly explained that a probate court could only make the changes Adelaide requested if a statute provided the probate court with that authority. He noted that the legislature enacted a series of laws, which in some instances allow for changes to a birth certificate after the child’s birth. However, looking to the text of  R.C. 3705.15, he suggested, shows that the statute’s purpose to correct information about a birth that was not properly or accurately recorded. This indicated that the statute intended a birth certificate be a “snapshot” of the circumstances of a birth as those events were known at that time.

He also looked to the broader statutory scheme, which contains separate provisions for the modification of a birth certificate to reflect understanding of facts occurring after a birth. Together the text of R.C. 3705.15 and the broader statutory scheme led Justice Donnelly to believe that R.C. 3705.15 only allows changes to information that did not accurately record the facts or circumstances as they were known at the time of the birth. Justice Donnelly wrote that he agreed with the Second District’s assessment that the law does not provide a probate court with the authority to make the changes to the birth certificate that Adelaide had requested. He acknowledged that there might be constitutional implications to that understanding of the law, but that this case did not present that question for the court’s consideration.

Justice Donnelly expressed concerns with the implications that resulted from his assessment of what the law governing changes to birth certificates permitted.

“It is an oft-repeated refrain in my writing that the law is the law, and that jurists may apply the law, even if that application leads to odious or unjust results,” the opinion stated. “Transgender persons are our fellow citizens, they are our neighbors and friends, and they contribute to our communities and this State. They are entitled to respect, equal treatment, and the ability to live their lives as they see fit. However, as it stands now, the statutory scheme concerning the correction of birth records could be interpreted as denying transgender persons these rights.”

Justice Donnelly added that the legislature should adopt a policy allowing a sex marker change.

“It should enact a statute creating a mechanism by which transgender persons born in Ohio may seek a change of the sex marker on their birth certificates to show officially, who they know themselves to be. In my mind, this is not simply a question of policy, but a matter of justice,” he wrote.

Opposing Opinion Found Probate Court Could Change Record
Justice Brunner explained the U.S. District Court of the Southern District addressed a challenge to denying changing the sex marker on a birth certificate in its 2020 Ray v. McCloud decision. In that case, the federal district court noted the Ohio Department of Health adopted a policy in 2015 of not allowing a sex marker to be changed on the basis that a person was transgender. Prior to that, at least 10 transgender individuals had received probate court authority to change their birth certificates.

The federal district court in the Ray case held the department’s policy unconstitutional. After this decision, probate courts were left to decide for their counties whether R.C. 3705.15 provided authority to change a sex marker, Justice Brunner wrote.

Justice Brunner said that she would follow the Ray decision which held under federal constitutional law that persons who are transgender “are entitled to heightened protection under the Equal Protection Clause as a quasi-suspect class.” She stated that, to create judicial exceptions when none exist from the birth-marker-change statute, is unconstitutional. Justice Brunner disagreed with the separate opinions that found the law only applies to the accuracy of the information at the time of birth, because the law allows without exception for an “updating” of the sex marker as it does for other changes, such as a name change, after a child is adopted.

Justice Brunner called the argument that Adelaide’s appeal lacked adversity, “a radical and untested theory of Ohio appellate jurisdiction” and one that is “grossly unworkable and lacking in justice.” She stated that, “[a] court having bona fide adversarial concerns may appoint an adverse amicus curiae, a law professor, or a state agency to raise counterarguments to the arguments presented by a person such as Adelaide,” citing the state’s constitution and that, “No law or constitutional provision requires the presence of an adverse party in a special proceeding to resolve questions of law on appeal in Ohio.”

Justice Brunner stated she would remand the case to the probate court and order it to process Adelaide’s application.

2022-0934. In re Application for Correction of Birth Record of Adelaide, Slip Opinion No. 2024-Ohio-5393.

View oral argument video of this case.

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