UPDATE, March 11, 10:45 p.m.: The 12th District Court of Appeals has overturned Judge Joseph Kirby’s decision to deny a legal name change to a 15-year-old transgender person, Cincinnati.com reports.
An Ohio judge is violating the civil rights of transgender teenagers by wrongfully denying them legal name changes, according to the allegations of a federal lawsuit filed against the judge late last week.
Judge Joseph W. Kirby of the Warren County Common Pleas Court has engaged in a “pattern and practice” of treating transgender minors differently than other minors by denying transgender minors’ requests for name changes “without a rational basis,” states the complaint filed by three families against the judge.
One family, Stephanie Whitaker and her husband Kylen, along with their 15-year-old teenager, petitioned the Ohio court in April to legally change their child’s name to Elliott, the name that reflects his correct gender identity, according to the complaint. In late June, the family appeared before Judge Kirby for a hearing on their request, after which he ruled against their petition. The family has appealed that decision.
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At that hearing, the Whitakers detailed Elliott’s medical treatment for anxiety and depression at Cincinnati Children’s Medical Center, according to a copy of the transcript from the hearing, which was attached as an exhibit to the families’ complaint. Elliott was eventually diagnosed by doctors at Cincinnati Children’s Medical Center with gender dysphoria. It was during this treatment, which is ongoing, that doctors recommended a name change.
In response, Kirby analogized the family’s request to a teenager asking to quit school. “Um, if a fifteen year old said to me I want to quit school, and the parents said yeah we support it I would say let’s no too that. I mean, let’s get him through school. I mean at eighteen they’re allowed to quit school.” Stephanie Whitaker told Judge Kirby in response, “We have gone through a lot of therapy to convince us that it’s not just a passing phase or fad.”
Stephanie also explained to Kirby that while her child’s school has been generally supportive of Elliot’s transition, it is unable to change permanent records without a court order approving the name change. Her husband, Kylen, also told Judge Kirby that the name change was necessary since Elliott would like to get a driver’s license and apply to colleges just as his peers are doing.
During the course of the hearing Judge Kirby asked the family a number of questions, many of which had nothing to do with the legal standard for determining whether to grant the requested name change. For example, Judge Kirby asked several questions about the history of Elliott’s gender expression and whether or not the teen would be seeking hormone therapy as part of his medical treatment. Judge Kirby also asked whether Elliott was considering gender reassignment surgery or whether he was sexually attracted to women.
And Judge Kirby asked a series of questions about which restroom Elliot used at school. “I am not allowed into a female’s restroom, right? I mean it’s just, I would probably get in trouble or at least called out on it if I did, okay. Is the same as true if somebody who associates themselves as male? Uh, can she go into the male’s restroom?” Kirby asked.
Kirby even suggested that Elliott’s expression of his gender identity was not sincere but, instead, was the result of exposure to media coverage of the transition of Caitlyn Jenner, whom he misnamed and misgendered.
Ohio law details the process to obtain a legal name change. An applicant must petition the court. The statute provides for instances when the court may deny a name change: in the case of people with prior criminal convictions or if there is evidence that the change has the potential for fraud; if the name change would interfere with the rights of others; if the name change would permit the person to avoid a legal duty; or if the change was in some way “contrary to the strong public policy of the state.”
When considering the name change of a minor, the court must determine whether the name change would be in the best interests of the child.
According to the allegations in the complaint, Judge Kirby has a pattern and practice of treating name change requests from transgender adolescents differently than other name change requests. The plaintiffs claim that so far in 2018, Judge Kirby has denied every transgender adolescents’ name change application that he oversaw. In fact, on the same day that Judge Kirby denied Whitaker’s name change request, he denied two other transgender teen name change applications. Judge Kirby used identical language in denying all of the name change requests from transgender adolescents, according to documents filed with the court.
Judge Kirby issued his opinion denying the family’s request on June 22. In the opinion he misgenders Elliott, then excuses the decision as one of style preference.
“The Court is aware of the fact that using a pronoun as it pertains to a person’s sex (which is their biological characteristics) as opposed to a pronoun for a person’s gender (which is that person’s social identity) is offensive to the transgender community. As a compromise, the Court attempted to utilize the singular, gender-neutral third person ‘they’ pronoun in place of him/her and she/him, as introduced by the Associated Press’ Stylebook; however, it made the entry difficult to read and comprehend,” Kirby wrote. “Therefore, the Court opted to use the pronoun associated with the child’s sex and not their preferred gender. No disrespect is meant to the child in this decision.”
Kirby’s three-page decision questions Elliott’s gender dysphoria diagnosis. “Whether [Elliott] is experiencing Gender Dysphoria or is just not comfortable with [his] body is something that only time will reveal,” Kirby wrote.
Kirby then addresses the parents. “In essence, the Court isn’t saying ‘no’ to the name change. The Court is simply saying ‘not yet.'”
Another family and plaintiff in the lawsuit has a hearing requesting a legal name change for their transgender child before Kirby on August 14. A third plaintiff in the lawsuit is an unnamed single parent of a transgender teen who wants to file for a name change, but is “fearful that she and her child will be subjected to an unfair and unconstitutional refusal to consider the name change application.”
Kirby’s alleged practice of denying names changes to transgender teens, should it be allowed to stand, could have far-reaching consequences more permanent than his language of “wait” suggests. Ohio recently enacted new guidelines to obtain a state-issued driver’s license or other identification card. Ohio residents hoping to get a driver’s license or other identification are required to provide documentation proving their name and date of birth, such as a Social Security card, birth certificate, or passport, and additional documents proving residential address. If a resident’s current name is not the same as the name listed on a birth certificate, they must provide a certified copy of a court order granting the name change in order to obtain a compliant identification. The State of Ohio currently refuses to correct the gender markers on transgender people’s birth certificates regardless of what steps a person may have taken to obtain recognition of their gender identity. A lawsuit challenging the constitutionality of this policy is currently pending in federal court.
A mismatch between a transgender person’s their gender identity and their name on official documents can subject that person to a variety of harms. It can interfere with the person’s ability to pass background checks, to obtain government benefits, secure housing and employment, or otherwise obtain benefits that people without such a mismatch normally enjoy.
Being denied the ability to change their names also subjects transgender people to even greater risk of harassment and violence, as it denies them the ability to decide when, where, how, and to whom, their transgender identity is disclosed.
The lawsuit is not seeking any monetary damages from Kirby. Instead, the plaintiffs are hoping for a declaration that Kirby’s name-change denials violated the children’s rights and an order preventing him from issuing such denials in the future.
Kirby has not yet responded to the lawsuit.