COLUMBUS, Ohio – The Ohio Supreme Court on Tuesday punted an appeal of a probate court’s decision to deny an application to change the sex marker on the birth certificate of a transgender woman, effectively upholding the lower court ruling.
The divided court announced it could not reach a majority decision on whether state law allowed Clark County Probate Court to change the sex marker on Hailey Adelaide’s birth certificate. The decision leaves intact the Ohio 2nd District Court of Appeals decision that found state law permits a correction to a birth record only when the sex identified at birth was incorrectly recorded.
The 2nd District Court said that Adelaide didn’t provide evidence that the record stating she was born male was incorrectly recorded at the time of her birth.
Republican Justices Joseph T. Deters, R. Patrick DeWine and Chief Justice Sharon L. Kennedy 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, according to Court News Ohio, a service of the Supreme Court.
Justices Patrick F. Fischer, a Republican, joined the court’s three Democrats, Michael P. Donnelly, Melody Stewart and Jennifer Brunner, in the majority opinion that says the 2nd District and Supreme Court had the authority to hear the case and adversity was not at issue. Their opinion is considered a majority since they’re four of the seven justices.
But as a majority, they couldn’t agree on how to resolve the merits of the case, with Fisher, Donnelly and Stewart saying they’d affirm the probate court’s decision and Brunner saying she’d overrule the probate court.
The decision was fairly broad, and the implications could be felt statewide.
The attorneys representing Adelaide, when appealing the case to the Ohio Supreme Court, wrote that the matter was important.
“This case raises substantial constitutional questions and is one of public and great general interest,” they wrote in an Aug. 1 notice of appeal.
On Tuesday morning, Chad M. Eggspuehler, one of Adelaide’s attorneys, said he didn’t have a comment. Maya Simek of Equality Ohio Legal Clinic, her other attorney, didn’t return a message.
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Court records for the case show a variety of people, organizations and Columbus and Cincinnati cities submitted friend-of-court briefs. No one submitted any briefs in opposition to Adelaide’s appeal.
But the Supreme Court nevertheless ultimately upheld the Clark County probate court.
“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,” Deters wrote.
Brunner, who in the new year will be the only Democrat on the court after general election voters ousted Stewart and Donnelly, said the court had the authority to hear the case and that the probate court had the authority to make the changes.
Brunner wrote that prior to 2015, Ohio probate courts granted 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,” her opinion stated.
Adelaide was born in 1973. Her birth certificate stated her name and indicated her gender as male. In 2021, she applied to the probate court to change the sex marker from male to female.
During a hearing, she explained to the court that around age 4, she began to believe she was a female. She views the sex marker as incorrect because it didn’t consider how she’d identify herself later in life.
Ultimately, the court concluded it could only change the sex marker if the information was improperly recorded at the time of her 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 2nd District appeals court, with no one opposing her appeal. The appellate court upheld the probate court’s decision.
Laura Hancock covers state government and politics for The Plain Dealer and cleveland.com.