Ohio Supreme Court hits impasse over trans woman's birth certificate

COLUMBUS, Ohio (CN) — In a rare and unusual decision, the Ohio Supreme Court failed to reach a consensus on the disposition of a case involving a transgender woman’s attempt to modify her birth certificate and left a lower court ruling undisturbed.

The justices could not reach the majority necessary to render a judgment in the case of Hailey Adelaide, who sought to change the sex on her birth certificate from male to female, and so a probate court’s initial denial of the request remains intact.

The decision did not come without comment and controversy; several justices wrote opinions to explain their points of view and preferred method of resolution for the case. A lack of adversity became a central issue for the justices, and stemmed from the fact no party opposed Adelaide’s initial request to alter her birth certificate.

Justice Patrick Fischer called the outcome “unfortunate for the litigants and Ohioans.” His court’s failure to order additional briefing on the issue of adversity — raised for the first time during oral arguments — was an “egregious judicial mistake,” the judge said.

Fischer himself saw no issue with the lack of an adverse party, however, and pointed out that the state registrar’s office has an interest in the litigation regardless of whether it intervened or opposed Adelaide’s request.

In his view, the court should have reached the merits of Adelaide’s appeal, and based on the plain language of the statute regarding corrections to birth certificates, her request was properly denied.

“The birth-registration process is focused on recording the event and the circumstances of the person’s birth,” Fischer said. “Accordingly, any ‘correction’ to a person’s birth record would be limited to the circumstances and facts at the time of a person’s birth.

“The probate court denied Adelaide’s application because her sex was properly and accurately recorded at the time of her birth, as demonstrated by her testimony that she was born with male anatomy,” he concluded.

Justice Michael Donnelly agreed with Fischer that the court should reach the merits of the case and affirm the probate court’s rejection, and wrote his own opinion to further explain his reasoning.

“Given the history and purpose of this statutory scheme, it does not follow that the scheme was intended to provide the relief Adelaide requests. One may imagine the General Assembly as understanding the provision as allowing for the correction of clerical errors … but those corrections relate to the circumstances of the birth,” Donnelly said.

“While I do not question the lived experience of those persons who, like Adelaide, find themselves born in a body whose biological sex does not correspond to their understanding of their gender identity, I do not believe that the purpose of the statutory scheme at issue was intended to cover the relief Adelaide requests.”

Justice Jennifer Brunner argued in her opinion the case should be remanded to the probate court, which not only possesses the statutory authority to grant Adelaide’s request, but was required to process it when it was submitted.

“The applicant, whoever that may be, must state and verify ‘all of the available facts required on a birth record and the reasons for making the application,’” she wrote. “If the probate court finds ’that the facts are as stated,’ then it ‘shall make an order correcting the birth record.’” (Emphasis in original.)

Brunner agreed with Fischer that adversity is a nonissue in Adelaide’s case, and emphasized “the rule of law is not a zero-sum game” that requires opposing parties and contentious litigation.

Justice Joe Deters, who won reelection to his seat on the court earlier this month, disagreed in a brief opinion explaining his belief the appeals court lacked jurisdiction over the case.

The former Hamilton County Prosecutor said the court can only decide active, legal controversies, and such controversies can exist only when there are opposing parties.

“There is no opposing interest. Were the probate court to grant Adelaide’s application, no other person or entity would suffer a diminution of a legal interest,” Deters said.

Donnelly was critical of Deters’ “wrongheaded” viewpoint in his own opinion and accused him of avoiding the central question of the case by focusing on adversity.

“Justice Deters would have this court announce a new rule of law: Ohio’s appellate courts lack jurisdiction to decide appeals that lack adversity. The result advocated by Deters flows from a strained analysis and is in spite of the reality that no party to this appeal is advocating for this new jurisdictional rule … and that this court has not received any briefing on the adversity issue,” he said.

Justice Melody Stewart joined in Donnelly’s opinion, while Chief Justice Sharon Kennedy and Justice Patrick DeWine joined in Deters’ opinion.

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