The Texas 14th District Court of Appeals in Houston upheld a trial judge’s denial of a transgender man’s request for a “gender designation change” embodied in a court order on August 2. In re Rocher, 2016 WL 4131626, 2016 Tex. App. LEXIS 8266. The court’s ruling turned on the absence of any Texas statute or regulation specifically authorizing courts to grant such requests.
According to the opinion for the three-judge panel by Justice Martha Hill Jamison, the petitioner, “formerly known as Aidyn Rocher,” filed an Original Petition for Change of Name of Adult in the Harris County District Court on January 28, 2015, almost exactly six months before the U.S. Supreme Court issued its marriage equality ruling of Obergefell v. Hodges. At the time, same-sex marriage was not available in Texas, so a sexual designation would be important for somebody who sought to get married. The Petition in this case sought not only a legal change of name to Alex Winston Hunter, but also a change of “sexual designation” from female to male. The petitioner was represented by a lawyer, who is not named in the court’s opinion.
The lawyer presented two prior Texas court opinions to the trial judge to support the request for the change: In re Estate of Araguz, 443 S.W.3d 233 (Tex. App. 2014 – petition for review denied), and In re N.I.V.S., 2015 WL 1120913 (2015). Then Hunter testified briefly, with all the testimony relating to the name change request, satisfying the requirement that the court make findings about the date and place of birth, the lack of a felony criminal record (felons may not legally change their names in Texas), and evidence that a name change is not being sought to evade creditors. At the end of the hearing, petitioner’s lawyer pointed out to the court that under the Texas Family Code “proof of an order relating to a sex change could be used to prove identity for purposes of an application for a marriage license.” At the end of the hearing, the trial judge granted the name change but denied the request for a “change in gender designation,” finding that there was no specific authority under Texas law authorizing a court to make such a change in designation.
Texas, in common with most (but not all) states, has a statutory procedure for changing the gender designation on a birth certificate. The petitioner in this case, however, was born in Pennsylvania, and Texas courts have no authority to order another state to issue a new birth certificate. Furthermore, Texas law does not authorize issuance of a birth certificate for somebody who was not born in Texas. The petitioner could try to get a new birth certificate from Pennsylvania, but he argued that this would be unduly burdensome, and that since Texas law does, in a broad sense, recognize the reality of gender transition by allowing such changes on birth certificates, the court should be able to issue such a declaration in the context of a name-change case.
The court discounted the precedential value of the cases that petitioner’s lawyer had presented. In Araguz, the court was dealing with a dispute about inheritance rights of a transgender woman who had married a Texas man, and the court of appeals had concluded, citing a Texas statute authorizing county clerks to accept a copy of a “court order relating to the applicant’s name change or sex change” in processing a marriage license application, that “Texas law recognizes that an individual who has had a ‘sex change’ is eligible to marry a person of the opposite sex.” But, wrote Justice Jamison, “The Araguz court did not, however, suggest that the section authorized a trial court to order a change in a person’s gender designation.” In the other case, N.I.V.S., although the court of appeals had noted that “one of the parties had ‘obtained a court order changing his identity from female to male,’” citing the same section of the marriage statute, the court in that case had stated, “because it is not necessary to the disposition of this appeal, we do not comment on the effect, if any, of such an order.”
Thus, although some past Texas court opinions had intimated that court might, or actually had, issued orders recognizing changes of sex designation, this court found that none of those cases directly answered the question whether a Texas court has authority to do such a thing, and this panel of judges was unwilling to take that step without some direct prior precedent or statutory authorization.
The petitioner had also argued on appeal that in light of Obergefell, it would be unconstitutional for the courts of Texas to refuse to issue such an order if presented with appropriate evidence. Unfortunately, however, the trial hearing took place before Obergefell, so this claim had not been presented to the trial court, and appeals courts generally refuse to consider arguments that were not raised at trial and thus “preserved” for review. A good argument can be made that the Supreme Court’s commentary in that case, and in the prior cases of Lawrence v. Texas and United States v. Windsor, would support a claim that the liberty protected by the Due Process Clause of the 14th Amendment would include a right of self-determination in matters of gender identity, as a matter of respect for individual dignity. But this court ruled out any consideration of that argument.
Indeed, in a footnote the court also stated that because it had found lacking any authority to issue such an order, it “need not in this case take any position regarding what type of evidence could suffice to demonstrate a gender change.” This is a much-contested issue in other jurisdictions, especially focusing on whether and the degree to which a transgender person must undergo surgical alteration before they can claim to have transitioned sufficiently to change their sex for legal purposes.
Of course, after Obergefell it is unnecessary for a transgender person to get a legal designation of sex in order to marry the person with whom they are in love, because the gender of the parties has been rendered irrelevant. But sex still matters for other purposes, and particularly for legal identification documents such as driver’s licenses and voter identification card for non-drivers, so the unavailability of a mechanism in Texas for transgender residents born in other jurisdictions to obtain such a declaration from a Texas court is another unnecessary stumbling block to getting on with one’s life.
Many years ago, a more empathetic court, the Maryland Court of Appeals, ruled in In re Heilig (2003) that a Maryland trial court could draw upon its general equitable powers to declare a change of sex designation for a transgender applicant who was born, coincidentally, in Pennsylvania. And, interestingly, as of August 8, 2016, new regulations in Pennsylvania allow a transgender person born in that state to obtain a new birth certificate by providing certain documentation to the Health Department, including a declaration under oath by a doctor that the individual has received appropriate clinical treatment to be considered male or female, as the case may be, without getting into specifics. The necessary information is easily available on several websites. So the petitioner in this case can download the necessary forms and obtain a new birth certificate from Pennsylvania with minimal expense and fuss. Unfortunately, not every state is so accommodating, and some still refuse to issue new birth certificates for this purpose.