In re: K.L. ( 2021 )

IN RE K.L., No. 1302, September Term, 2020
CHILD IN NEED OF ASSISTANCE - - MINOR CHILD - - JUVENILE COURT
ORDER GRANTING DEPARTMENT OF SOCIAL SERVICES SOLE
AUTHORITY TO CONSENT TO FILING OF PETITION TO CHANGE NAME
AND DECLARE GENDER IDENTITY OF MINOR CINA - - BEST INTERESTS
OF THE CHILD STANDARD - - CHANGE OF FIRST NAME TO CONFORM TO
GENDER IDENTITY - - DECLARATION OF GENDER IDENTITY WHEN
GENDER IDENTITY DIFFERS FROM SEX-ASSIGNED-AT-BIRTH - -
PERTINENT FACTORS - - HARMONIZING NATURE OF EVIDENCE
SUPPORTING ADMINISTRATIVE CHANGE OF SEX DESIGNATION ON
BIRTH CERTIFICATE WITH NATURE OF EVIDENCE SUPPORTING
JUDICIAL DECLARATION OF GENDER IDENTITY - - APPEALABILITY OF
ORDER UNDER SECTION 12-203(3)(X) OF THE COURTS AND JUDICIAL
PROCEEDINGS ARTICLE.
Seventeen-year-old child has been a CINA for ten years due to Mother’s neglect.
Child’s sex-assigned-at-birth is male, but her gender identity is female. When child was
thirteen, juvenile court ruled, over Mother’s opposition, that Department could consent to
child’s receiving puberty blockers and feminizing hormones to transition physically from
male to female. Mother has never accepted child’s gender identity. When child was
sixteen, she filed a motion to grant the Department sole authority to consent to the filing of
a petition to change her first name and to have her gender identity declared to be female.
Juvenile court granted the motion, over Mother’s opposition. Mother appealed. Child and
Department moved to dismiss the appeal as not taken from an appealable order.
Held: Order is appealable under CJP section 12-303(3)(x), which permits a party
to appeal from an interlocutory order “[d]epriving a parent . . . of the care and custody of
his child ….” A parent whose child is a CINA does not lose the fundamental constitutional
right to raise the child, although that right must be balanced against the State’s interest in
protecting the child from harm. Care and custody of the child includes right to make
decisions about important aspects of the child’s life. The right of a parent to consent to a
legal course of action that could result in the child’s name being changed and a judicial
declaration of gender identity different from sex-assigned-at-birth is fundamental to raising
the child. Because the order in this case deprived Mother of that right, it is appealable under
CJP section 12-303(3)(x).
The standard governing the juvenile court’s decision whether to expand the
Department’s limited guardianship as requested is the best interests of the child. The
“extreme circumstances” test applied in disputes between parents over changing their
child’s last name when the child has been using that last name has no relevance to a case
in which a child is seeking a change in first name to conform to the child’s gender identity.
Two jurisdictions that have addressed the question whether it was in the best interests of a
transgender child to grant a change in first name to correspond to the child’s gender identity
have identified relevant factors, which are different than the factors relevant to cases where
parents are disputing whether a child’s last name should be changed.
In 2003, in In Re Heilig, the Court of Appeals held that a circuit court has the power
to declare that a transgender person’s gender had “changed” from the gender the person
was born with. (Gender identity now is understood to be immutable once formed, and
usually formed at an early age). The Court harmonized the proof necessary to obtain such
a declaration with the proof necessary, at that time, for the person to obtain an amended
birth certificate with a new sex designation. Since then, the General Assembly has amended
the law to provide that a person may obtain a new birth certificate with a change in sex
designation upon proof of treatment short of surgery, such as medical treatment to achieve
physical transition. The principle of In re Heilig dictates that treatment short of a permanent
and irreversible physical transition will suffice to obtain a judicial declaration of gender
identity different from sex-assigned-at-birth.
The undisputed facts before the juvenile court showed that the child likely could
present satisfactory proof to a circuit court to support the petition, that the child had
identified as a gender different from her sex-assigned-at-birth for many years, and that
Mother was not accepting of the child’s gender identity and had engaged in a long history
of neglect of child. The court did not err or abuse its discretion in ruling that it was in the
child’s best interests to grant the Department sole authority to consent to the filing of a
petition to change name and declare gender identity on child’s behalf.
Circuit Court for Baltimore County
Case No.: 03-I-12-000154
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1302
September Term, 2020
______________________________________
IN RE: K.L.
______________________________________
Fader, C.J.,
Kehoe,
Eyler, Deborah S.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Eyler, Deborah S., J.
______________________________________
Filed: September 1, 2021
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2021-09-01 10:05-04:00
Suzanne C. Johnson, Clerk
Appellant E.H. (“Mother”) is the natural mother of appellee K.L., who is seventeen
years old. K.L. is a transgender female. As we shall explain, K.L.’s biological sex at birth
was male and her gender identity is female.1
When K.L. was seven years old, the Circuit Court for Baltimore County, sitting as
the juvenile court, declared her to be a “child in need of assistance” (“CINA”).2 She has
been a CINA ever since. In 2020, K.L., through counsel, filed a motion to expand the
limited guardianship of appellee Baltimore County Department of Social Services
(“Department”). The juvenile court granted the motion, as follows:
ORDERED, that the limited guardianship . . . be expanded to include sole
and full authority to consent, on behalf of [K.L.], to a petition filed by K.L.
through her counsel to change her name and gender marker.
The order was issued on December 9, 2020 and docketed on December 16, 2020.
(“December 16, 2020 Order”).
In this appeal, Mother contends the juvenile court erred by granting the Department
the authority to consent to the filing of a petition to change K.L.’s name and gender
1
We shall refer to K.L. by her chosen pronouns.
2
A “child in need of assistance” is “a child who requires court intervention because:
(1) [t]he child has been abused, has been neglected, has a developmental disability, or has
a mental disorder; and (2) [t]he child’s parents, guardian, or custodian are unable or
unwilling to give proper care and attention to the child and the child’s needs.” Md. Code
(1974, 2020 Repl. Vol.), § 3-801(f) of the Courts & Judicial Proceedings Article (“CJP”).
“CINA” is the standard acronym for “child in need of assistance.” CJP § 3-801(g).
marker.3 The Department, joined by K.L., has filed a motion to dismiss on the ground that
the December 16, 2020 Order is not appealable, to which Mother has filed an opposition.
The Department and K.L. assert, in the alternative, that the juvenile court’s decision was
not in error.
We hold that the December 16, 2020 Order deprived Mother of a substantial
decision-making right respecting K.L. and therefore is an appealable order under Md. Code
(1974, 2020 Repl. Vol.), section 12-303(3)(x) of the Courts & Judicial Proceedings Article
(“CJP”). We further hold that the standard for deciding whether to expand the
Department’s limited guardianship to include authority to consent to a change in name and
gender marker is the best interests of the child and that the juvenile court did not err or
abuse its discretion in granting the Department that authority over K.L.
BACKGROUND AND TERMINOLOGY RELEVANT TO
TRANSGENDER STATUS
In Grimm v. Gloucester County School Board, 972 F. 3d 586 (4th Cir. 2020),
rehearing en banc denied, 976 F. 3d 399 (September 20, 2020), cert. denied, ___U.S.___,
2021 WL 2637992 (June 28, 2021), the Fourth Circuit held that the Equal Protection Clause
of the Fourteenth Amendment to the United States Constitution and Title IX of the
Education Amendments of 1972, 20 U.S.C. section 1681(a), “can protect transgender
students from school bathroom policies that prohibit them from affirming their gender.”
3
Mother’s single question presented is: “Did the juvenile court err in granting
[K.L.’s] motion to expand the Department’s limited guardianship so the Department can
consent to the child’s petition to change name and gender marker?”
2
Id. at 593.4 With the aid of amici briefs and an expert witness on behalf of the plaintiff,
the court set forth “a fact-based understanding of what it means to be transgender[.]” Id. at
594. It explained:
Given a binary option between “Women” and “Men” most people do
not have to think twice about which bathroom to use. That is because most
people are cisgender, meaning that their gender identity - - or their ‘deeply
felt, inherent sense’ of their gender - - aligns with their sex-assigned-at-birth.
But there always have been people who ‘consistently, persistently, and
insistently’ express a gender that, on a binary, we would think of as opposite
to their assigned sex.
Such people are transgender, and they represent approximately 0.6%
of the United States adult population, or 1.4 million adults. Just like being
cisgender, being transgender is natural and is not a choice.
972 F. 3d at 594 (footnotes and citations omitted) (expert reports cited primarily rely upon
Am. Psychol. Ass’n, Guidelines for Psychological Practice with Transgender and Gender
Nonconforming People, 70 Am. Psychologist 832 (2015), and Am. Psychiatric Ass’n,
Position Statement on Discrimination Against Transgender and Gender Variant
Individuals (2012)).
As this makes clear, one’s sex refers to the biological state of the person at birth,
while one’s gender is the gender one identifies with. The Grimm court further spelled out
that, “[f]or many of us, gender identity is established between the ages of three and four
years old. Thus, some transgender students enter the K-12 school system as their gender;
others, like [the plaintiff], begin to live their gender when they are older.” Id. at 596. The
4
The Fourth Circuit noted that it “join[ed] a growing consensus of courts in holding”
so. Id.
3
court estimated based on the material before it that among teenagers in the United States,
“approximately 0.7%” or “about 150,000 teens” identify as transgender. Id. 5
In this opinion, we shall adopt the factual understandings and nomenclature cited
and used by the Fourth Circuit in Grimm, which are based on the present state of treatment
of gender-nonconforming people within the established medical, psychiatric, and
psychological communities. When we use the word/phrases “sex,” “biological sex,” or
“sex-assigned-at-birth,” we mean the sex a person is assigned at the time of birth. When
we use the word/phrases “gender,” “gender marker,” or “gender identity,” we mean the
gender a person perceives, understands, and experiences as a central identity in life.
FACTS AND PROCEEDINGS
K.L. was born in July 2004, when Mother was a CINA herself and was living in
foster care.6 By 2011, Mother had given birth to four more children, one of whom was
medically fragile and died when very young.
In March 2012, when K.L. was seven, the Department received complaints that
Mother was neglecting her children. On June 29, 2012, the Circuit Court for Baltimore
County, sitting as the juvenile court, found K.L. and her three siblings to be CINAs and
granted the Department an Order of Protective Supervision (“OPS”), with the children
5
The Grimm court further explained that not all people identify as cisgender or
transgender or on a binary of male or female. Because the question in that case was limited
to transgender youth, the court did not address issues having to do with nonbinary people.
That is the situation in this case as well.
6
K.L.’s father’s identity is known, but he has had virtually no contact with her
throughout her life.
4
remaining in Mother’s physical custody. See CJP § 3-819(c)(1)(i). Six weeks later, the
police were called when the children, having been left alone at night without electricity,
were found attempting to cross a busy road by themselves, in a torrential downpour. The
juvenile court rescinded the OPS and placed the children in foster care with a permanency
plan of reunification with Mother.7 In K.L.’s case, the Department was granted a limited
guardianship, pursuant to CJP section 3-819(c)(1)(ii), “for medical, educational and out of
state travel purposes, and psychological and mental health decision-making, including the
administration of medication and psychotropic drugs, if appropriate, dental care,
educational services, and other appropriate services.”
In the nine years since then, K.L. has not been reunified with Mother and has had
many foster care placements.8 She has suffered from severe behavioral problems that
brought some of those placements to an end. Many of K.L.’s placements have been at
therapeutic and diagnostic facilities. Early on, she was diagnosed with attention deficit
hyperactivity disorder and oppositional defiant disorder.
Beginning at a young age, K.L. perceived herself as being female, even though her
sex-assigned-at-birth was male, and preferred wearing feminine clothing and accessories.
According to Department reports, by March 2016, K.L. was identifying “more and more
as a female” and by August 2016, she was “identifying fully as a female” and wanted to be
7
Immediately before that, Mother fled to Florida with the children. The police
located them in Orlando, and they were returned to Maryland.
8
Eventually, the CINA cases of the three siblings who were placed in foster care at
the same time as K.L. were closed with custody and guardianship granted to non-relatives.
5
addressed “by female pronouns.” By then, Mother was living in Pennsylvania. She was
preoccupied with another child she had given birth to and was having difficulty accepting
K.L.’s female gender identity. K.L. had some overnight and weekend visits with Mother,
but they experienced conflict and K.L. was uncertain about the prospect of reunifying with
Mother, which until then had remained her permanency plan.
In very early 2017, Mother told the Department she wanted to support K.L. in her
desires but still was having difficulty accepting her gender identity. In February of that
year, K.L.’s permanency plan was changed to custody and guardianship with a non-
relative.9 Six months later, when K.L. was age 13 and beginning to go through puberty,
she was examined by pediatric endocrinologist Elyse Pine, M.D. Dr. Pine diagnosed K.L.
with gender dysphoria, which “refers to the distress that may accompany the incongruence
between one’s experienced or expressed gender and one’s assigned gender.” American
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (DSM-V),
Gender Dysphoria at 451 (5th ed. 2013).10 Dr. Pine recommended that K.L. start taking
9
Mother did not note an appeal from that order or from any order in K.L.’s CINA
case up until this appeal.
10
The DSM-IV, published in 1994, classified transgender and other gender-
nonconforming people as having “gender identity disorder[,]” which was a mental disorder.
In 2012, the American Psychiatric Association, which publishes the DSM, recommended
eliminating gender identity disorder and instead adopting the condition “gender
dysphoria,” which is not a mental disorder. In 2013, the DSM-V was published, with that
change. Accordingly, the general psychiatric community no longer considers gender-
nonconforming people to be suffering from a mental illness.
6
puberty blocker medications, which K.L. wanted to do.11 Mother refused to consent to that
treatment. Through counsel, K.L. filed an emergency motion to expand the Department’s
limited guardianship to give it authority to consent to such medical decisions. Mother filed
an opposition.
For two days in September 2017, the juvenile court held a hearing on K.L.’s motion,
during which it took testimony from witnesses, including Dr. Pine, and received relevant
medical literature in evidence. On October 11, 2017, the court granted K.L.’s motion and
entered an order giving the Department “sole and full authority to consent, on behalf of
[K.L.], to any and all medical, psychiatric and/or psychological treatment, including, but
not limited to the administration of psychotropic drugs, hormones, or other drug treatment,
that addresses [K.L’s] condition of gender dysphoria.”
In November 2017, K.L. was moved to a therapeutic placement and began to receive
puberty blockers, administered by Dr. Pine. Soon after, her interactions with Mother
improved and her permanency plan was changed to a concurrent plan of reunification with
Mother, and custody and guardianship with a non-relative. That only lasted a year. In
September 2018, an extended home visit with Mother ended early because of friction
between K.L. and Mother. After that, visits were supervised for a while.
K.L. made progress in a residential treatment center in 2019. Her therapist
recommended that visits with Mother remain supervised because K.L. would become
verbally aggressive in response to Mother’s not using her chosen first name and pronouns.
11
Puberty blockers stop the development of secondary sexual characteristics while
they are being taken.
7
By November 2019, on the recommendation of Dr. Pine, K.L. was receiving feminizing
hormone treatments in addition to puberty blockers. Visits were made unsupervised. K.L.
resumed some overnights with Mother but still became upset when Mother would not use
her chosen pronouns. In December 2019, the juvenile court continued the permanency
plan of reunification with Mother concurrent with custody and guardianship by a non-
relative.
At a permanency planning hearing before a magistrate on August 3, 2020, the
Department reported that K.L. was doing well and recommended changing her permanency
plan to “another permanent planned living arrangement” (“APPLA”).12 Mother did not
attend the hearing but her lawyer was present and said she had been unable to reach Mother
by telephone or mail. By then, K.L. was 16 years old and had fully transitioned to female,
except for gender confirmation surgery.13 K.L.’s lawyer mentioned that she intended to
file a petition to change name and gender marker on K.L.’s behalf. The magistrate
recommended that K.L.’s permanency plan be changed to APPLA. On August 14, 2020,
the juvenile court issued an order changing K.L.’s permanency plan as recommended.14
12
APPLA means, for a child at least 16 years old, a permanency plan that
“[a]ddresses the individualized needs of the child, including the child’s educational plan,
emotional stability, physical placement, and socialization needs” and “[i]ncludes goals that
promote the continuity of relations with individuals who will fill a lasting and significant
role in the child’s life[.]” CJP § 3-823(e)(1)(i)(5).
13
In the past, such surgery commonly was referred to as “sex reassignment surgery.”
Other than in quoted material, we shall use the more modern term “gender confirmation
surgery.” See, e.g., Edmo v. Corizon, Inc., 935 F.3d 757, 767 (9th Cir. 2019).
14
During a permanency planning hearing on January 4, 2021, Mother confirmed
that she agreed to changing K.L.’s permanency plan to APPLA.
8
On September 15, 2020, K.L., through counsel, filed a motion to expand the
Department’s limited guardianship to include authority to consent to a change of name and
gender marker. In the motion, K.L. related that with the Department’s assistance, she had
obtained an Identification Card from the Maryland Motor Vehicle Administration. It gave
her gender as male and did not identify her by her chosen first name. K.L. asserted that
she “now wishes to have a name that conforms to her physical appearance, as her name
and gender marker on her identification is a clear indication that she is genetically male.
This places her in danger of ridicule and violence.” She further asserted that Mother had
been living in Pennsylvania for five years and had attended only a few of the permanency
planning hearings over the many years K.L. had been in foster care; that K.L.’s last visit
with Mother had gone badly; and that, although she and Mother had had some telephone
conversations, it had been a long time since she had seen Mother.
On October 30, 2020, a hearing on K.L.’s motion took place before a magistrate.
Mother, who was living in Texas, participated remotely, first through her lawyer and then
speaking directly. Mother stated that although she had concerns, she did not want to stand
in K.L.’s way; would not “go against” K.L.; and wanted for K.L. whatever K.L. wanted.
Finding that it was in K.L.’s best interest to pursue changes to her name and gender marker,
the magistrate recommended granting the motion.
Notwithstanding what she had said during the magistrate’s hearing, Mother filed
exceptions. The court held a hearing on December 7, 2020. K.L.’s lawyer, Mother,
Mother’s lawyer, the Department’s lawyer, and K.L.’s social worker attended. K.L. did
9
not attend. At the outset, the lawyers representing Mother and K.L. agreed that they would
proceed by argument as no facts were in dispute.
K.L.’s lawyer recounted the history of K.L.’s 2017 gender dysphoria diagnosis and
the treatments she has been receiving to physically transition from male to female. Counsel
referred to Dr. Pine’s testimony from the 2017 hearing, where she had opined that
administering puberty blockers and hormone treatments reduced the chance of K.L.
experiencing bullying, violence, and engaging in self-harm, all of which are risks for
transgender youth. Counsel asked the court to take judicial notice of that testimony and
the Department’s prior reports to the juvenile court addressing K.L.’s gender dysphoria
and treatment for that condition. Counsel also referenced an October 2018 study discussing
how allowing transgender youth to use their chosen names, in supporting environments,
helps prevent suicidal ideations, depression, and suicidal behaviors.15
Counsel explained that to the outside world K.L. presents as female. K.L. does not
want to change her last name (surname). She only wants to change her official first name
(given name) to a feminine name that is similar to her original given name. K.L. does not
intend to repudiate her parents, counsel asserted, but only to have a feminine first name so
she will not be “outed” as transgender when she uses her identification. Counsel argued
that the standard for expanding the Department’s guardianship was whether that change
would be in K.L.’s best interest.
15
See “Chosen Name Use is Linked to Reduced Depressive Symptoms, Suicidal
Ideation and Behavior among Transgender Youth,” J. Adolesc. Health, 2018 Oct. 63 (4),
503-05, National Center for Biotechnology Information, U.S. National Library of Medicine
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6165713/.
10
The Department’s lawyer supported K.L.’s motion and asked K.L.’s social worker,
Norah Stephanos, LCSW, to address the court. According to Ms. Stephanos, K.L. was not
present for the hearing because she was upset that Mother was opposing the motion after
saying she was supportive. In addition, it is distressing for K.L. to appear at a court
proceeding where she is introduced using a masculine name she no longer identifies with
and is not referred to by her chosen pronouns. Ms. Stephanos explained that she and K.L.
have had a long treatment relationship, and that K.L. consistently has expressed the desire
to change her first name to be feminine. Recently, in applying for jobs, K.L. had to provide
her official identification, thereby involuntarily revealing her transgender status. Ms.
Stephanos expressed the clinical opinion that K.L.’s mental health is negatively affected
by remaining in a position of having to use a masculine first name and official identification
that shows a masculine first name and gender marker.
Mother’s lawyer responded that it is not in K.L.’s best interest to expand the
Department’s limited guardianship as requested because having a feminine name and male
genitals could put her at risk of harm. She added that there was no evidence that K.L. had
experienced harm or violence in her current situation. In addition, she argued that the study
referenced by K.L.’s attorney was not specific to K.L. and the situation was not urgent.
Mother addressed the court, complaining generally that parents are being stripped
of authority over their children and stating she had been a “good mother” to her children.
As she saw it, her relationship with K.L. had been fine until she decided to contest K.L.’s
progression to a name and gender marker change. She argued that the timing of such a
decision was bad given the mental health problems predominating during the COVID-19
11
pandemic. In addressing the court, Mother referred to K.L. using masculine pronouns
instead of K.L.’s chosen pronouns.
Mother noted a timely appeal from the December 16, 2020 Order granting K.L.’s
motion.
DISCUSSION
I.
PERTINENT MARYLAND LAW ON NAMES, GENDER IDENTITY AND BIOLOGICAL
SEX, AND CHILDREN IN NEED OF ASSISTANCE
Name Change
There are two non-mutually exclusive ways to change one’s name in Maryland.
First, Maryland recognizes the common law rule that one may adopt any name so long as
one uses the name consistently and not for a fraudulent purpose. See Hardy v. Hardy, 269
Md. 412, 415 (1973); Klein v. Klein, 36 Md. App. 177, 181 (1977).16 This common law
right is afforded both adults and children. Hall v. Hall, 30 Md. App. 214, 222 (1976).
Second, one may petition for a name change through a judicial proceeding, pursuant
to Rule 15-901, titled “Action for change of name[.]” This is what K.L. seeks to do. The
benefit of using the judicial name change process is that an order granting the petition is
16
In Smith v. United States Cas. Co., 90 N.E. 947, 948-49 (N.Y. 1910), the New
York Court of Appeals laid out the English history of naming customs and conventions,
going back to the 10th century. Citing Smith with approval, we explained in Hall v. Hall,
30 Md. App. 214, 219 (1976) (citation and footnote omitted): “The common law sprang
and was gradually developed out of the groundwork of custom. It was the ancient custom
for the son to adopt a surname at will, regardless of that borne by his father, and the practice
extended to the given name also.”
12
an official court record that may be used to change or obtain other official documents. To
utilize Rule 15-901 for a name change, an individual must file a petition setting forth,
among other things, the person’s present name, the name to which the person seeks a
change, the reasons for the requested change, and a certification that the name change is
not being sought for illegal or fraudulent purposes. Md. Rule 15-901(c)(1)(A) – (E).
The Rule further provides that when “the person whose name is sought to be
changed is a minor,” the petition must provide “the names and addresses of that person’s
parents and any guardian or custodian[.]” Md. Rule 15-901(c)(1)(F). In addition, the
minor’s petition and attachments “shall be served upon that person’s parents and any
guardian or custodian” in accordance with Rule 2-121. Md. Rule 15-901(d). Regardless of
whether the individual seeking a name change is an adult or a minor, “[a]ny person may
file an objection to the petition.” Md. Rule 15-901(f).
Generally, minors lack the capacity to sue under Maryland common law. See Fox v.
Wills, 390 Md. 620, 625-26 (2006).17 Rule 15-901 does not address who may file a petition
for name change on behalf of a minor.18 Under Rule 2-202(b), a suit by an individual under
disability to sue, such as a minor, shall be brought “by a guardian or other like fiduciary
17
There are exceptions. For example, under Md. Code (2019 Repl. Vol.), section 9-
103 of the Family Law Article (“FL”), a minor who is at least 16 years old may
independently file a petition for custody or visitation, without a guardian or next friend.
18
Rule 15-901 derives in part from prior Rules BH70 through BH75. Rule BH70(b)
provided that a petition to change name on behalf of a minor was to be filed by “a parent,
a legal guardian, or a next friend.” In re Adoption/Guardianship No. 3155, 103 Md. App.
300, 309 (1995). That language was not included in Rule 15-901.
13
or, if none, by next friend.” “Guardian” means “a natural or legal guardian[,]” Rule 1-
202(j), and the parents of a minor child are the child’s “joint natural guardians[.]” Md.
Code (2019 Repl. Vol.), § 5-203(a)(1) of the Family Law Article (“FL”).19 Relatedly, as
we discuss below, a parent, guardian, or legal representative of a minor may request, on
the minor’s behalf, a new birth certificate with a changed sex designation. Md. Code (2019
Repl. Vol.), § 4-211(b)(2)(i)(2) of the Health-General Article (“H-G”). If the request is
granted and the individual’s name “has been changed at any time,” the new name on the
birth certificate “shall be the name that was last established and for which appropriate
documentation has been submitted to the Department [of Health and Human Services].”
H-G § 4-211(f)(1)(ii).
The Maryland Judiciary’s form “Petition for Change of Name (Minor)” states in the
caption that the minor’s petition is filed “BY AND THROUGH THEIR
PARENT/GUARDIAN/CUSTODIAN.” See Judiciary Form CC-DR-062 (Rev. 03/2021).
A block advisement adds: “NOTE: You must inform all parents, guardians, or custodians
about your request to change a minor’s name” and “[t]ry to get consent for the minor’s
name change from all parents, guardians, or custodians.” Id.
Under Maryland law, a child’s parents equally enjoy the right to choose their child’s
given name and surname. Dorsey v. Tarpley, 381 Md. 109, 115 (2004) (citing Lassiter-
Geers v. Reichenbach, 303 Md. 88, 94-95 (1985)). The Maryland cases pertaining to
19
There are situations in which one parent becomes the sole natural guardian of the
minor child, including when the other parent “abandons the family[.]” See FL § 5-
203(a)(2)(ii).
14
children’s names all concern last names and almost all are disputes between parents: some
never married and some married and divorced. See Dorsey v. Tarpley, 381 Md. at 111(unmarried parents; petition by father to change name of two-and-a-half-year-old child
from mother’s last name to hyphenation of both parents’ last names); Lassiter-Geers v.
Reichenbach, 303 Md. at 90 (parents married but separated when child born and mother
gave child her maiden name on birth certificate with no agreement with father; in divorce
proceedings father petitioned for child to have his surname); Hardy v. Hardy, 269 Md. at
413-14 (unmarried parents; mother petitioned to change five year old’s surname from
father’s surname to that of man she was living with); West v. Wright, 263 Md. 297, 298
(1971) (divorced parents; mother petitioned to change surname of 11 and 12-year-old
children to that of stepfather); Schroeder v. Broadfoot, 142 Md. App. 569, 571-72 (2002)
(unmarried parents, father not identified on birth certificate; in amended paternity petition
father sought to have infant child given his surname); Lawrence v. Lawrence, 74 Md. App.
472, 473 (1988) (divorced parents; mother petitioned to change names of ten and eight-
year-old children from father’s last name to hyphenation of both parents’ last names); Hall
v. Hall, 30 Md. App. at 216 (divorced parents; father sought to enjoin mother from having
ten-year-old child use stepfather’s last name). As we also shall discuss below, the Court
of Appeals has held that when a child’s parents never agreed on the child’s surname, the
court decides that name using a best interest of the child standard. Dorsey v. Tarpley, 381
Md. at 115. However, when the parents together named the child and the child has been
using that surname, there is a presumption against changing the child’s surname and the
15
court decides whether it will be changed using a best interest and “extreme circumstances”
standard. Id. (quotation marks and citation omitted).
Unlike the cases above, In re Adoption/Guardianship No. 3155, 103 Md. App. 300(1995), addressed the procedural question of how a child’s last name can be changed after
his parents’ rights have been terminated and the child has been placed in the guardianship
of the local department of social services.20 There, the department petitioned the juvenile
court to appoint the child’s foster parents as co-guardians, and the department and the foster
parents together petitioned the same court to change the child’s last name to that of the
foster parents. The lawyer who had represented the child in the termination of parental
rights proceeding was not given notice of the petitions.21 The juvenile court granted the
petitions and counsel for the child appealed. We held that the child’s lawyer was entitled
to notice of the petitions and had standing to pursue the appeal; that the juvenile court
lacked jurisdiction to appoint foster parents as co-guardians; and that only the circuit court,
not the juvenile court, had the power to change the child’s name.22
20
Guardianship of the child after termination of parental rights is governed by FL
section 5-325. “Unless a juvenile court gives legal custody to another person, a child’s
guardian . . . has legal custody.” FL § 5-325(b)(1). Unless ordered otherwise by a juvenile
court, and subject to review, “a child’s guardian may make all decisions affecting the
child’s education, health, and welfare, including consenting: . . . [subject to certain
exceptions for inpatient psychiatric treatment] to medical, psychiatric, or surgical
treatment.” FL § 5-325(b)(2)(i)(5).
21
In TPR proceedings, children are afforded legal counsel. FL § 5-307(b)(1).
Likewise, CINAs are afforded legal counsel. CJP § 3-813(d).
22
Although the appeal was taken by the child, through counsel, it appears to have
been pursued solely to challenge the process the court employed. The child, who was eight
years old, made it known that he wanted to be adopted by his foster parents.
16
No Maryland appellate case has addressed a change of a minor’s first name; a
dispute solely between a child and the child’s parent over changing the child’s first name;
such a dispute in the context of a transgender child; or such a dispute when the child is a
CINA.
Gender Identity and Biological Sex
Maryland does not have a prescribed statutory or rule-based judicial process to
declare an individual’s gender identity. In In re Heilig, 372 Md. 692 (2003), however, the
Court of Appeals held that a circuit court’s general equity jurisdiction affords it the power
“to determine and declare that a person has changed from one gender to another.” In re
Heilig, 372 Md. at 695. In so holding, the Court took guidance from the Maryland law
then in effect governing amendments to birth certificates, which it read as making clear
that the circuit court is empowered to declare a change in gender. Id. at 714-15. What was
then H-G section 4-214(b)(5) stated that “[u]pon receipt of a certified copy of an order of
a court of competent jurisdiction indicating the sex of an individual born in this State has
been changed by surgical procedure and whether such individual’s name has been
changed,” the Secretary of Health and Mental Hygiene “shall” amend the individual’s birth
certificate to so reflect. Id. at 715.
The Heilig Court concluded that an individual petitioning a court to declare a change
in gender must “present sufficient medical evidence of both the relevant criteria for
determining gender and of the fact that, applying that criteria, [the person] has completed
a permanent and irreversible change from [one gender to another].” Id. at 723 (emphasis
added). The petitioner in Heilig, an adult transgender female, had not undergone gender
17
confirmation surgery but was taking medication, including feminizing hormones, to bring
about the physical change from male to female. Id. at 695-96. Very little evidence had
been introduced in the circuit court because that court had ruled, incorrectly, that a
declaration of a person’s gender only could be made in a declaratory judgment action,
which meant there had to be opposing parties, which there were not.23 The Court of
Appeals remanded the matter to give the petitioner an opportunity to introduce evidence of
whether the hormone therapy and other treatments she was undergoing were bringing about
a permanent and irreversible change from male to female.
Heilig was decided almost 18 years ago, and at the time the Court of Appeals
observed, presciently, “This is, clearly, an evolving area.” 372 Md. at 723. As the Grimm
case illustrates, in the years since Heilig, the health care communities that treat the gender-
nonconforming have come to understand that people develop immutable gender identities,
usually from an early age, that for some people do not correlate with their biological sex,
23
As the Court of Appeals put it in Heilig:
[CJP § 3-409,] which governs the appropriateness of declaratory relief in a
civil action not founded specifically on a contract, deed, trust, will, land
patent, statute, or administrative regulation, authorizes the court to grant a
declaratory judgment if it will terminate the uncertainty or controversy
giving rise to the proceeding and (1) an actual controversy exists between
contending parties, (2) antagonistic claims are present between the parties
which indicate imminent and inevitable litigation, or (3) a party asserts a
legal relation, status, right or privilege that is challenged or denied by an
adverse party.
372 Md. at 711. In Heilig, no opposition was filed to the petitioner’s request for a change
in gender.
18
i.e., their anatomical and often genetic sex characteristics. From the standpoint of
nomenclature, the phrase “change of gender” as used by the Heilig Court to describe what
the courts have the judicial power to declare has become a misnomer. A person’s
developed gender identity does not change. In today’s world, that judicial power is best
described as the authority to state, officially, a person’s gender, gender identity, or gender
marker (which in this context are synonymous).
The law likewise has evolved. Twelve years after Heilig, the Maryland General
Assembly enacted legislation, effective October 1, 2015, altering the standard of proof for
changing the “sex designation” on a person’s birth certificate. By Acts 2015, c. 484 § 1
and Acts 2015, c. 485, § 1, the legislature amended H-G section 4-211, which governs new
birth certificates, and H-G section 4-214, the statute the Heilig Court had looked to, which
governs amended birth certificates. As amended, H-G section 4-211(b) provides that, for
an individual born in Maryland, “the Secretary [of Health and Mental Hygiene] shall make
a new certificate of birth” upon “satisfactory proof” of “one of the following” relevant
criteria:
(2)(i) 1. A licensed health care practitioner who has treated or evaluated the
individual has determined that the individual’s sex designation should be
changed because the individual has undergone treatment appropriate for the
purpose of sex transition or has been diagnosed with an intersex
condition[24];
24
“Intersex” is “a group of conditions where there is a discrepancy between the
external genitals and the internal genitals (the testes and ovaries).” Medline Plus Medical
Encyclopedia, a service of the U.S. Library of Medicine, National Institutes of Health,
https://medlineplus.gov/ency/article/001669.htm. See also Zzyym v. Pompeo, 958 F. 3d
1014, 1018 (10th Cir. 2020)(explaining that the State Department “defines an “intersex”
individual as someone ‘born with reproductive or sexual anatomy and/or chromosomal
(continued)
19
2. The individual, or if the individual is a minor or disabled person
under guardianship, the individual’s parent, guardian, or legal representative,
has made a written request for a new certificate of birth with a sex designation
that differs from the sex designated on the original certificate of birth; and
3. The licensed health care practitioner has signed a statement, under
penalty of perjury, that:
A. The individual has undergone surgical, hormonal, or other
treatment appropriate for the individual, based on generally accepted
medical standards; or
B. The individual has an intersex condition and, in the
professional opinion of the licensed health care practitioner, based on
generally accepted medical standards, the individual’s sex designation
should be changed accordingly; [or]
(ii) A court of competent jurisdiction has issued an order indicating that the
sex of an individual born in this State has been changed[.][25]
Subsection (f) of H-G section 4-211 goes on to provide that upon satisfactory proof, the
sex designation on the new birth certificate shall be the one proven; the name on the new
birth certificate shall be in accordance with any name change shown to have been made;
and the new birth certificate shall not be “marked ‘amended’” or reflect that there has been
a change in sex designation or, if applicable, name.
pattern that does not fit typical definitions of male or female’”)(citations omitted). The
Court in Heilig provided a comprehensive discussion of intersex conditions. Id. at 698-
710. K.L. does not have an intersex condition.
25
A third entitlement to a new birth certificate showing a new sex designation is:
“Before October 1, 2015, the Secretary, as provided under regulations adopted by the
Department, amended an original certificate of birth on receipt of a certified copy of an
order of a court of competent jurisdiction indicating the sex of the individual had been
changed.” H-G § 4-211(b)(2)(iii). This does not apply to K.L.
20
The contemporaneous amendment to H-G section 4-214, governing amended birth
certificates, repealed the language that had applied to a change in sex designation, including
the requirement that an individual show proof of gender confirmation surgery in order to
obtain an amended birth certificate. Current H-G section 4-214 does not concern changes
to sex designations on birth certificates at all.
These amendments resulted from passage of Senate Bill 743. The Fiscal and Policy
Note for that bill explained in “Background” the reasoning behind them:
According to a 2014 Reuters article, New York recently amended its
policy regarding sex-change designations for birth certificates: transgender
people born in the state (with the exception of New York City, which
maintains its own policy) no longer have to prove that they had a sex-
reassignment surgery in order to change the sex on their birth certificates.
Instead, a transgender person must only provide a notarized affidavit from a
doctor treating that person for “gender dysphoria” (also known as “gender
identity disorder”). According to the article, many transgender people (those
who identify as having a different sex than the one at birth) do not need, want,
or cannot afford sex-reassignment surgery. Additionally, transgender people
who are unable to change the sex marked on their birth certificates may face
discrimination or embarrassment. Four other states (Vermont, California,
Oregon, and Iowa) as well as Washington, DC, also do not require proof of
surgery before changing sex designations on birth certificates. As of 2010,
the U.S. State Department also does not require proof of sex-reassignment
surgery in order to alter the sex marked on passports and consular birth
certificates.
MD Fisc. Note, 2015 Sess., S.B. 743 at 3 (March 10, 2015).
Accordingly, since 2015, a person born in this State who has requested a birth
certificate reflecting a new sex designation is entitled to one if the person is undergoing
treatment to transition from one sex to another and provides the necessary supporting
information from a treating licensed health care practitioner; or if the person has obtained
a court order indicating that “the sex of the individual . . . has changed.”
21
The previous requirement for gender confirmation surgery that controlled when
Heilig was decided no longer exists. The Heilig Court adopted a standard of proof for a
“change” in gender (now more properly described as a declaration of gender, gender
identity, or gender marker) that coordinated conceptually with the prior version of H-G
section 4-214. Although it did not limit individuals seeking such a declaration by court
order to those who had had surgery, as the prior statute had, it required “sufficient medical
evidence . . . [the person] has completed a permanent and irreversible change from [male
to female or vice versa].” 374 Md. at 723 (emphasis added). Thus, whether a change in
sex designation was sought on a birth certificate or a declaration of gender was sought from
the circuit court, the petitioner was required to prove a permanent and irreversible change.
As we see it, the principle underlying the Heilig Court’s holding is that the proof to
support a judicial declaration of a person’s gender that is other than that person’s sex-
assigned-at-birth should harmonize with the proof to support an administrative change of
the sex designation that originated on the same person’s birth certificate. The permanent
and irreversible standard for a declaration of gender by court order, adopted in Heilig, was
compatible with the statutory surgery requirement for changing the sex designation on a
birth certificate, as then existed. Since 2015, that standard no longer comports with the
statutory standard for changing the sex designation on a birth certificate, however. The
holding in Heilig now dictates that in a court proceeding to declare the gender of a non-
intersex person, the petitioner’s evidence should show that the petitioner has undergone or
is undergoing appropriate treatment, whether surgical, hormonal, or other generally
accepted medical treatment, to physically transition to the sex that does not correlate to the
22
person’s sex-assigned-at-birth but does correlate to the person’s gender identity.26 We do
not rule out that there may be other medically equivalent evidence that we are not yet aware
of; this case does not raise that issue. There is no requirement, however, for proof of
surgery or of the “permanent and irreversible” physical change that was the judicial
equivalent to the surgery requirement that once existed in an administrative proceeding.
As the Fiscal and Policy Note to SB 743 made clear, present understanding is that the
seriousness of and commitment to a request to a court to declare gender, gender identity,
or gender marker is not necessarily tied to the irreversibility of the medical treatments
undertaken to effectuate a physical change from sex-assigned-at-birth.
At present, the Maryland Judiciary’s form petition for name change for an adult
includes a space in which the petitioner also may request “that my gender/sex be changed
from _______ to _______ for the purposes of updating my sex designation (gender marker)
on my birth certificate and other identity documents.” See Judiciary Form CC-DR-060
(Rev. 03/12/2021). 27 That form advises the petitioner to “[a]ttach documentation from a
26
Again, we emphasize that we are dealing only with transgender individuals in this
case and not with people who identify as non-binary.
27
The form also correctly states that “[a] court order is not necessary to update your
gender marker on records with the Social Security Administration, Maryland Motor
Vehicle Administration, Maryland Division of Vital Records (for your birth certificate), or
the U.S. Department of State (for your passport).” Judiciary Form CC-DR-060. Since
October 1, 2019, Md. Code (Repl. Vol. 2020), § 12-305(a) of the Transportation Article
(“TA”), has allowed an applicant for a driver’s license, identification card, or moped
operator’s permit to indicate a gender of female, male, or “[u]nspecified or other,” the latter
of which shall be displayed as an “X” in the location for gender. That statute further
prohibits the Maryland State Department of Transportation from requiring such an
applicant to provide proof of sex and from denying an application because the sex selected
(continued)
23
licensed health care practitioner showing you have undergone treatment appropriate for
gender transition or have been diagnosed with an intersex condition[,]” and cites H-G
section 4-211(b)(2)(i). The Judiciary’s form for change of name for a minor does not
include a space for such a request.28
Pertinent Rights of Parents in CINA Cases
“The liberty interest of parents to raise their children as they see fit without undue
interference by the State is a fundamental right under the Fourteenth Amendment of the
United States Constitution.” In re O.P., 470 Md. 225, 234 (2020) (citation omitted). See
also In re Adoption/Guardianship of Rashawn H., 402 Md. 477, 495 (2007) (Parents have
a fundamental constitutional right to raise their children “free from undue and unwarranted
interference on the part of the State[.]”) (citations omitted). “Under the doctrine of parens
patriae, the State has an interest, and a responsibility, to protect the health, safety, and
welfare of children.” In re O.P., 470 Md. at 234. See also In re Yve S., 373 Md. 551, 569
(2003) (citation omitted).
When a child is alleged to have been abused or neglected, the parents’ fundamental
rights in the child and the State’s interest in protecting the child come into conflict. See In
re Adoption/Guardianship of H.W., 460 Md. 201, 205 (2018) (there is a “delicate balance”
by the applicant does not match the sex indicated on another of the applicant’s documents.
TA § 12-305(c).
28
We repeat that the terminology used for a request relating to gender that is
different from sex-assigned-at-birth should not be for a “change” in gender, gender
identity, or gender marker, but for a declaration of gender, gender identity, or gender
marker.
24
between parents’ constitutional right to raise their children and the State’s interest in
protecting the safety and welfare of children). In a CINA case, the best interest of the child
standard applies and “trumps all other considerations” when the fundamental interests of
parents in raising a child are weighed against the State’s important duty to protect the child
from being abused or neglected. In re Adoption of Ta’Niya C., 417 Md. 90, 111 (2010)
(citation and footnote omitted).
The CINA statutory scheme accommodates the competing interests between the
State in protecting a child who is alleged to have been neglected or abused and the child’s
parent who has a fundamental interest in raising that child. The parent does not lose his or
her fundamental rights but, when a child is adjudicated to be a CINA, the court may
determine a disposition that protects the child. For instance, as in this case, the court may
“[g]rant limited guardianship to the department or an individual or both for specific
purposes including medical and educational purposes or for other appropriate services if a
parent is unavailable, unwilling, or unable to consent to services that are in the best interest
of the child[.]” CJP § 3-819(c)(1)(ii).
At present, K.L.’s permanency plan of APPLA is a “permanent child placement”
under CJP section 3-823(e)(1)(i)(5), which is a type of “out-of-home placement” for
children 16 or older. The living arrangement “[a]ddresses the individualized needs of the
child, including the child’s educational plan, emotional stability, physical placement, and
socialization needs; and [i]ncludes goals that promote the continuity of relations with
individuals who will fill a lasting and significant role in the child’s life[.]” CJP § 3-
823(e)(1)(i)(5). Overseen by the Maryland Department of Health and Mental Hygiene, the
25
placement is designed to “[c]oncurrently develop and implement a plan in the best interests
of the child to facilitate a planned, permanent living arrangement for the child who cannot
be reunified.” Code of Maryland Regulations (“COMAR”) 07.02.11.01C. With respect to
parental rights, the regulations governing the APPLA permanency plan provide:
Consistent with the best interest of the child, the parents . . . of a child in out-
of-home placement may: . . . [p]articipate in decisions about major changes
in the life of the child, unless those changes are matters protected by the
child’s privacy rights or contrary to the child’s best interest.
COMAR 07.02.11.07C(8).
II.
MOTION TO DISMISS
The right to appeal in this State is determined by statute and thus must be
“legislatively permitted.” In re C.E., 456 Md. 209, 220 (2017) (citations omitted).
Generally, appeals may be taken only from “a final judgment entered in a civil or criminal
case by a circuit court.” CJP § 12-301. This requirement, commonly referred to as “the
final judgment rule,” “aims to promote judicial economy and efficiency by preventing
piecemeal appeals after every order or decision by a trial court.” In re C.E., 456 Md. at
221 (quotation marks and citation omitted).
In In re D.M., 250 Md. App. 541, 555 (2021), Judge Arthur explained what a final
judgment is.
To qualify as a final judgment, an order must be so final as either to
determine and conclude the rights involved or to deny the appellant the
means of further prosecuting or defending his or her rights and interests in
the subject matter of the proceeding. In other words, the order must be a
complete adjudication of the matter in controversy, except as to collateral
26
matters, meaning that there is nothing more to be done to effectuate the
court’s disposition.
(Quotation marks and citations omitted). The final judgment rule has three exceptions,
however. They are:
(1) appeals from interlocutory orders specifically allowed by statute
[predominately orders enumerated in CJP § 12-303]; (2) immediate appeals
permitted when a circuit court enters final judgment under Maryland Rule 2-
602(b); and (3) appeals from interlocutory rulings allowed under the
common law collateral order doctrine.
In re O.P., 470 Md. at 250 (citation and footnote omitted).
In moving to dismiss this appeal, the Department, joined by K.L., argues that the
December 16, 2020 Order is not a final judgment and that none of the exceptions to the
final judgment rule apply. Mother agrees that the December 16, 2020 Order is not a final
judgment but takes the position that it is appealable under CJP section 12-303(3)(x). That
statutory exception to the final judgment rule permits a party to take an appeal from an
interlocutory order “[d]epriving a parent . . . of the care and custody of his child, or
changing the terms of such an order[.]” Mother also maintains that the December 16, 2020
Order is appealable under the collateral order doctrine.
The parties are correct that the December 16, 2020 Order is not a final judgment.
K.L.’s CINA case remains open and ongoing and the order does not conclude the matter
and resolve all the issues in controversy. If the December 16, 2020 Order is appealable, it
must be so under either CJP section 12-303(3)(x) or the collateral order doctrine.29
Rule 2-602(b), governing a court’s written order directing the entry of a final
29
judgment where the judgment did not dispose of the entire claim, has no application here.
27
Many times over the past twenty years, the Court of Appeals has examined whether
various interlocutory orders in CINA cases are appealable under CJP section 12-303(3)(x).
See In re Damon M., 362 Md. 429, 438 (2001) (order changing permanency plan from
reunification to adoption, long-term care, or permanent foster care was immediately
appealable); In re Samone H., 385 Md. 282, 315-16 (2005) (order denying mother’s motion
for an independent bonding study was not immediately appealable because it did not
deprive her of care and custody of her children or change the terms of the prior order to her
detriment); In re Billy W., 387 Md. 405, 426 (2005) (orders eliminating parent’s
unsupervised visitation with children and requiring parent to secure services of off-duty
police officer to supervise visits were changes to the parent’s detriment and thus were
immediately appealable); In re Karl H., 394 Md. 402, 404-05 (2006) (order changing
permanency plan from reunification to reunification and adoption was immediately
appealable); In re Joseph N., 407 Md. 278, 292 (2009) (order effectively broadening
permanency plan to parent’s detriment by “expand[ing] the universe of persons eligible for
reunification” was immediately appealable); In re C.E., 456 Md. 209, 210-11 (2017) (order
waiving Department’s obligation to make reasonable efforts to unify was not immediately
appealable as it did not change permanency plan or deprive mother of care and custody of
child). See also In re Katerine L., 220 Md. App. 426, 443 (2014) (order denying father’s
motion for genetic testing in CINA case did not fall within CJP section 12-303(3)(x)); In
re D.M., 250 Md. App. at 558-59 (order amending permanency plan of reunification with
parent to add concurrent plan of placement with a relative for custody and guardianship
28
was immediately appealable as it had the potential to deprive a parent of care and custody
of child).
In re Karl H., supra, and In re Joseph, supra, illustrate the reasoning the Court of
Appeals has employed to decide whether an order in a CINA case is appealable under CJP
section 12-303(3)(x). In In re Karl H., the Court explained that in deciding whether an
order changing the CINA’s permanency plan from reunification with the mother to
reunification and adoption is immediately appealable,
the focus should be on whether the order and the extent to which that order
changes the antecedent custody order. . . . If the change could deprive a
parent of the fundamental right to care and custody of his or her child,
whether immediately or in the future, the order is an appealable interlocutory
order.
394 Md. at 430 (emphasis added). Because the order in question had “the potential both
to accelerate the termination [of] and to terminate a parent’s custodial rights . . . adversely
affect[ing] a parent’s rights to care and custody” of her child, it was “sufficiently far enough
along the continuum of depriving a parent of a fundamental right” to make it immediately
appealable under CJP section 12-303(3)(x). Id. at 431, 430.
Similarly, in In re Joseph N., supra, the Court framed the question of appealability
under CJP section 12-303(3)(x) as whether the interlocutory order reaffirming a
permanency plan of reunification with the child’s mother but shifting the child’s physical
custody from the local department to his father, had or would effectuate a “detrimental
change” to the mother’s custody rights. 407 Md. at 291. Recognizing that the order “had
the potential to facilitate and accelerate a grant of full custody to” father and was potentially
“outcome-determinative” due to the “bonding and attachment that could take place”
29
between the child and his father while the child was in father’s custody, the Court
concluded that the order was immediately appealable. Id. at 292, 294.
In all the cases cited above, whether the parent would be deprived of “care and
custody” of the child primarily concerned the present and potential future effect of the order
appealed from on the parent’s physical custody of the child. Recently, in In re K.Y-B, 242
Md. App. 473 (2019), this Court denied a motion to dismiss an appeal from an interlocutory
order in a CINA case where the only appealable issue did not concern physical custody. In
that case, the child was put in shelter care when still an infant. The mother refused to
consent to the administration of routine childhood vaccinations, citing religious reasons.
The juvenile court entered an order extending the duration of the original shelter care order
and expanding the local department’s limited guardianship by granting it authority to
consent to vaccination of the child. The mother noted an appeal, and during its pendency
consented to the continuation of shelter care for the child, thereby waiving her right to
challenge that aspect of the juvenile court’s order. The only issue not waived, and therefore
properly before us, was the ruling on consent to vaccinations. We concluded that the order
had “changed the terms of custody to Mother’s detriment by authorizing the Department
to consent to vaccinations over Mother’s objection,” depriving her of the care and custody
of her child. Id. at 486 n.5. Accordingly, the order was appealable under CJP section 12-
303(3)(x).
We return to the case at bar. As Mother acknowledges, the December 16, 2020
Order does not operate directly or indirectly to deprive her of physical custody of K.L.,
now or in the future. Mother asserts that the order deprives her of “legal custody,”
30
however, in that it negates her right to make an important decision affecting K.L.’s life.
Legal custody, which together with physical custody comprise the entire concept of
custody in family law cases, “carries with it the right and obligation to make long range
decisions involving education, religious training, discipline, medical care, and other
matters of major significance concerning the child’s life and welfare.” McCarty v.
McCarty, 147 Md. App. 268, 271 (2002) (citation and emphasis omitted).
K.L. counters that the definition of “custody” in CJP section 3-801(k) does not
encompass legal custody as that concept exists under Maryland family law principles.30
Further, she asserts that although Mother maintains her parental rights to participate in
important decision-making regarding her life, Mother was given the opportunity to do so
by participating in the hearing on the motion to expand limited guardianship.
The Department, focusing entirely on physical custody, maintains that the
December 16, 2020 Order “has no effect on [Mother’s] custodial rights” as she has not had
physical custody of K.L. for many years and did not oppose implementation of K.L.’s
APPLA permanency plan, which is designed to ease her into independence rather than to
reunify her with Mother. In the Department’s view, the order “merely authorizes consent
for a reversible act . . . that does not materially diminish or impact [Mother’s] custody of
K.L.”
30
CJP section 3-801(k) defines “custody” as “mean[ing] the right and obligation,
unless otherwise determined by the court, to provide ordinary care for a child and determine
placement.”
31
Whether custody of a child is disputed as between the child’s parents or as between
the State and a child’s parent (or parents), the concept of “custody” rests in the first instance
on the parents’ fundamental constitutional right to raise their child. In re Billy W., 386 Md.
675, 683-84 (2005) (citations omitted) (“[A] parent’s interest in raising a child is a
fundamental right, recognized by the United States Supreme Court as well as [the Court of
Appeals].”). That fundamental parental right includes the right to decide where and with
whom the child will live (physical custody) and to make a myriad of other important
decisions affecting the child’s life (legal custody). As we have explained, when a child has
been found to be a CINA, the parents do not lose their fundamental rights in their child,
but their rights must be balanced against the State’s interest in protecting the child from
abuse and neglect.
The definition of “custody” K.L. cites does not support her position, as it does not
limit custody in a CINA case to physical custody. “[T]he right and obligation . . . to provide
ordinary care for a child and determine placement” of CJP section 3-801(k) is verbiage
broad enough to encompass both physical and legal custody. And, as our discussion above
makes clear, up until the point that parents’ rights in their child are terminated legally, the
CINA statute and regulations protect their entitlement to make important decisions about
their child. Moreover, In re K.Y-B stands for the proposition that an order depriving a
parent of the “care and custody of his child” in a way that does not affect physical custody
nevertheless is appealable under CJP section 12-303(3)(x). “Care and custody” encompass
all fundamental parental rights, including, as we have held, the right to decide whether a
child will be vaccinated – an issue unrelated to the child’s physical custody. Therefore, an
32
interlocutory order depriving a parent of an important decision-making right with respect
to the parent’s child can be appealable under CJP section 12-303(3)(x).31
The right of parents to name their child is basic. Except for some children with
intersex conditions, a child’s biological sex is immediately identifiable at birth, visually,
and because name and gender are closely associated, usually is a critical factor in the
parents’ choice of the child’s first name. A child’s sex-assigned-at-birth and first name
both are central, defining characteristics about them, as they are about any person; and the
child’s developed gender identity becomes so. The parties to this appeal agree that parents’
fundamental rights include not only the right to name their children but also the
corresponding right to exercise the power of consent over their children’s changing their
names or having their gender identities declared.
Although a petition to change name for a minor child can be filed by a guardian or
“other like fiduciary” or next friend, the child’s parent has primacy in filing, under Rule 2-
202(b), as the natural guardian who occupies that role automatically, without appointment.
Likewise, to maintain consistency between who may request a change in name and gender
marker on a minor’s birth certificate and who may bring a court action to change a minor’s
name and declare a minor’s gender identity, a child’s parent must have primacy in filing
31
We find no merit in K.L.’s argument that the December 16, 2020 Order is not
appealable because Mother only was entitled to participate in the juvenile court’s decision
whether to grant the Department the authority to consent to the filing of a petition to change
name and gender marker for K.L. The fact that Mother had the right to participate by
making her position known, and that she did so, does not mean that she has no right to
appeal the court’s decision, either now, if the order is appealable, or at the conclusion of
the CINA case.
33
such an action. Thus, ordinarily, Mother would have the right to consent (or withhold
consent) to K.L.’s changing her name and declaring a gender identity other than her sex-
assigned-at-birth and the right to file (or decide not to file) a petition to accomplish that.
In sum, like parents’ rights to consent to childhood vaccinations, the rights of
parents to consent to a legal course of action that could result in their child’s name being
changed and a new declaration of gender marker is fundamental to raising their children.
The December 16, 2020 Order deprived Mother of that right. To be sure, when a petition
to change name is filed on K.L.’s behalf, Mother will receive notice and will have the
opportunity to object. Her right to consent to this course of action for K.L. was lost,
however, which means the order is appealable under CJP section 12-303(3)(x).32
III.
THE JUVENILE COURT DID NOT ERR BY GRANTING THE DEPARTMENT SOLE
AUTHORITY TO CONSENT TO FILING A PETITION TO CHANGE NAME AND
GENDER MARKER ON K.L.’S BEHALF
Mother contends the juvenile court erred by granting the Department “sole and full
authority” to consent to K.L.’s filing, through counsel, a petition for change of name and
gender marker. She offers two reasons in support. First, the court should have applied the
“extreme circumstances” standard, instead of only the best interest of the child standard, in
making its decision. Second, because the evidence before the juvenile court consisted
32
As noted, Mother also argues that the December 16, 2020 Order is appealable
under the collateral order doctrine. We do not need to reach this issue and therefore we do
not.
34
merely of competing proffers, it was legally insufficient to support the court’s decision in
K.L.’s favor, regardless of the standard applied.
We apply a three-pronged standard of review in CINA cases. We review factual
findings for clear error under Rule 8-131(c); we review issues of law de novo and determine
whether further proceedings are required; and we review the juvenile court’s final decision
for abuse of discretion. In re Adoption/Guardianship of H.W., 460 Md. at 214 (citations
omitted). See also In re Yve S., 373 Md. at 586. A court abuses its discretion when “no
reasonable person would take the view adopted by the trial court or when the court acts
without reference to any guiding rules or principles.” Santo v. Santo, 448 Md. 620, 625-
26 (2016) (quotation marks, citation, and bracket omitted).
At the outset of our discussion, we must focus on precisely what decision we are
reviewing. The parties’ briefs devote much of their legal arguments to appeals in cases
where lower courts ruled on whether to grant a petition to change a child’s name. Here, no
such decision was made, nor could it have been made by the juvenile court. See In re
Adoption/Guardianship No. 3155, 103 Md. App. at 309-10. Rather, the juvenile court
made what amounts to a preliminary decision — that the Department, not Mother, shall
have the right to consent to the filing of a petition to change K.L.’s name and gender
marker. That is the decision we are reviewing. Once a petition is filed in the circuit court,
that court will make the decision whether to grant the change in name and gender marker.33
33
As we have noted, in the Judiciary’s form Petition for Change of Name (Adult),
there is a space for the petitioner to request a change in gender marker as well; but the form
Petition for Change of Name (Minor) does not include such a space. There is no reason
(continued)
35
Nevertheless, Maryland law on name and gender marker changes furnishes some
perspective about the juvenile court’s decision. No matter the standard and measure of
proof applicable to the preliminary issue of consent to the filing of a petition for change in
name and declaration of gender identity, the factors that will come into play, if and when
a petition were to be filed, have a bearing on whether it is in K.L.’s best interest for consent
to be given, and therefore whether it matters who holds the power to consent for her.
Likewise, cases from other jurisdictions that, unlike Maryland, have addressed standards
governing name changes for transgender children can provide guidance.34 Our research
has uncovered only two such cases. In both, name change petitions were filed on the child’s
behalf by a supportive parent.
Sacklow v. Betts, 163 A.3d 367 (N.J. Super. Ct. Ch. Div. 2017), an opinion by a
New Jersey chancery court, is most helpful. In that case, the mother of a 16-year-old
transgender male filed a petition on his behalf to change his first name to Trevor. Id. at
368-69. The child’s parents had divorced, and the father opposed the petition. The court
held a hearing at which mother, father, and child testified. The evidence showed that during
puberty, the child, who the mother always had thought was a “tomboy,” experienced a
drastic downward change in behavior; that he received counseling and psychological
why a request for the court to make a declaration of gender, gender identity, or gender
marker cannot be added to that petition as well, however. The circuit court has jurisdiction
to decide both requested (and related) issues. It is sensible for the decisions to be made
together.
34
See Circumstances Justifying Grant or Denial of Petition to Change Transsexual
or Transgender Individual’s Name, 39 A.L.R. 7th Art. 9, Part III (Child Petitioners) (2018).
36
treatment and was diagnosed with gender dysphoria; that with his parents’ consent, he
started taking puberty blockers and had begun testosterone treatment in 2016; and that he
had used the first name Trevor for five years. The father, who was pro se and cross-
examined the child himself, indicated he was inclined to consent to the name change.
Because it was not clear that he was consenting, however, the court approached the case as
if he were not.
After finding that the best interests of the child standard applied, the court
determined that the following factors should be considered in deciding whether a change
of first name is in the best interest of a transgender child who wishes to have a name that
aligns with the gender the child identifies with:
(1) The age of the child; (2) The length of time the child has used the
preferred name; (3) Any potential anxiety, embarrassment or discomfort that
may result from the child having a name he or she believes does not match
his or her outward appearance and gender identity; (4) The history of any
medical or mental health counseling the child has received; (5) The name the
child is known by in his or her family, school and community; (6) The child’s
preference and motivations for seeking the name change; (7) Whether both
parents consent to the name change, and if consent is not given, the reason
for withholding consent.
Id. at 369. The court evaluated the evidence on these factors and granted the petition.
In Matter of H.C.W., 123 N.E.3d 1048 (Ohio Ct. App. 2019), a mother filed a
petition to change first name on behalf of her 15-year-old transgender child, from his
feminine birth name to a masculine name. The petition was accompanied by consents from
both parents. At a hearing, the child testified that for many years he had sensed that he was
a male, although his sex-assigned-at-birth was female, and beginning about a year prior he
had started to use a masculine name and to present himself as male to his schoolmates. His
37
teachers referred to him by his chosen masculine name. The child’s father testified that the
child had been seeing a therapist and had been diagnosed with gender dysphoria. Both
parents testified that the child was being treated by a doctor who recommended hormone
therapy, which was to begin about a month after the hearing. They expressed belief that it
was in their child’s best interest for his first name to be changed from feminine to
masculine. The court denied the request, finding that the child might be motivated by
“short-term desires or beliefs” that could change and that he was not ready to make “this
life-altering decision.” Id. at 1051 (quotation marks omitted).
The Ohio Court of Appeals reversed, holding that the lower court had abused its
discretion by denying the petition for name change. Explaining that the best interests of
the child was the controlling standard, the court remarked that many factors that are
relevant in disputes between parents over their children’s surnames are not pertinent to
whether it is in the best interest of a transgender child to change the child’s first name to
align with the child’s gender identity. The court determined that the factors enumerated in
Sacklow were pertinent and on the facts adduced in the court below, supported changing
the child’s first name.35
35
In the one other name change case we found pertaining to a transgender child,
also filed by the child’s mother, the Missouri Court of Appeals held that the trial court had
abused its discretion by ordering the child to undergo a mental health examination. State
v. Wagner, 504 S.W.3d 899, 903 (Mo. Ct. App. 2016). Specifically, the court concluded
that the child’s mental health was not in controversy, as required by the Missouri rule
governing mental health examinations.
38
The Extreme Circumstances Standard Did Not Apply
Mother first argues that in deciding whether to grant the Department authority to
consent to a petition for name and gender marker change on behalf of K.L., the juvenile
court should have applied the “extreme circumstances” test, announced in Dorsey v.
Tarpley, supra. This is the test the Court of Appeals held must be used when a parent is
seeking to change the surname the parents gave the child at birth and that the child has been
using. Mother’s argument has no merit.36
As explained, it is well-established that when, in a CINA case, there is a conflict
between a parent’s constitutional right to raise the child and the State’s interest in
protecting the child’s safety and welfare, the best interest of the child standard not only
controls but also is of “transcendent importance.” In re Adoption/Guardianship of
Rashawn H., 402 Md. at 497 (quotation marks and citations omitted). See also Yve S., 373
Md. at 569 (“[T]he State’s interest in all custody, adoption, and visitation disputes is to
protect the best interests of the child caught in the middle of the fight.”). Indeed, the limited
guardianship statute pursuant to which the juvenile court made its decision embodies the
best interest standard. It authorizes the court to grant a local department a limited
guardianship “for other appropriate services if a parent is unavailable, unwilling, or unable
to consent to services that are in the best interest of the child[.]” CJP § 3-819(c)(1)(ii)
36
This argument also is not preserved. At the hearings before the magistrate and
the juvenile court on K.L.’s motion, counsel for Mother did not argue that the “extreme
circumstances” standard should apply. Ordinarily, we would not address this issue because
it was not argued below. See Md. Rule 8-131(a). Because there is a paucity of Maryland
case law on issues having to do with changes of name and declarations of gender identity
for transgender children, we exercise our discretion to address the issue.
39
(emphasis added). There are no CINA cases in which juvenile court decisions about the
welfare of a child in the State’s custody have been decided under an “extreme
circumstances” standard.
Dorsey v. Tarpley has almost nothing in common with this case. There, after a
child’s unmarried parents named him and he had been known by that name for over two
years, his father decided his surname should be changed to a hyphenation of both parents’
surnames. His mother disagreed. Each parent had an equal fundamental constitutional right
to raise the child, including the right to name him, which they already had exercised. The
State was not a party. The Court of Appeals engrafted the “extreme circumstances”
standard onto the best interests of the child standard for deciding what surname the child
should have because the child had become known by the name his parents had given him,
which created a presumption against changing his name.37
37
In Dorsey, the Court of Appeals adopted the following “best interest” factors for
name changes, originally formulated in Schroeder v. Broadfoot, 142 Md. App. 569, 588
(2002) (citations omitted):
1) the child’s reasonable preference, if the child is of the age and maturity to
express a meaningful preference; 2) the length of time the child has used any
of the surnames being considered; 3) the effect that having one name or the
other may have on the preservation and development of the child’s mother-
child and father-child relationships; 4) the identification of the child as a part
of a family unit; 5) the embarrassment, difficulties, or harassment that may
result from the child’s use of a particular surname; 6) misconduct by one of
the child’s parents disparaging of that parent’s surname; 7) failure of one of
the child’s parents to contribute to the child’s support or to maintain contact
with the child; and 8) the degree of community good will or respect
associated with a particular surname.
381 Md. at 117 (citation omitted).
40
The Dorsey Court identified two paramount factors for deciding whether extreme
circumstances existed to rebut that presumption. “First, the court is to consider any
evidence of misconduct by a parent that could make the child’s continued use of the
parent’s surname shameful or disgraceful.” Id. at 115-16 (citation omitted). “Second, the
court is to consider whether th[at] parent wilfully abandoned or surrendered his or her
natural ties to the child.” Id. at 116 (citation omitted). Thus, extreme circumstances are
those strongly warranting a child’s being separated from a surname made infamous by a
parent’s conduct or that implies the parent has been honoring the most basic parental
functions for the child when he has not.
The case at bar is not a private dispute between two parents about whether their
child’s last name should be changed. It does not concern K.L.’s last name, which she made
known she does not want to change. The dispute is over K.L.’s first name, which she wants
to be consistent with her female gender identity. Her parents are not the two opposing
parties. The opposing parties are the State, which has had custody of K.L. for nine years
and supports, as positive for K.L.’s health and welfare, her desire to change her first name,
and Mother, who lost custody of K.L. due to neglect, has not fully accepted K.L.’s gender
identity, and will not consent to a court action to change K.L.’s first name and declare her
gender marker. The purpose of the extreme circumstances test — to allow a change of a
child’s established last name when the parent with that name has disgraced it or has
neglected the child — has no relevance here. The juvenile court was correct to apply the
best interest of the child standard, without an added showing of “extreme circumstances,”
in ruling on K.L.’s motion.
41
The Evidence Was Legally Sufficient to Support the Juvenile Court’s Ruling
and the Court Did Not Abuse Its Discretion
Mother’s second argument calls into question the sufficiency of the evidence to
support the juvenile court’s ruling. Mother states, correctly, that as the moving party K.L.
bore the burden of proving by a preponderance of the evidence that, at the least, it was in
K.L.’s best interest to grant the Department authority to consent to the filing of a petition
for change of name and declaration of gender marker on her behalf. She argues, however,
that K.L. “failed to present any evidence in support of [her] motion,” pointing out that K.L.
did not testify or provide an affidavit and that the court’s ruling rested on competing
proffers, which is a legally insufficient basis to support it.
To be sure, we have twice held that juvenile courts erred by proceeding on
competing proffers instead of receiving evidence. See In re M.C., 245 Md. App. 215, 231-
32 (2020), and In re Damien F., 182 Md. App. 546, 583 (2008). Both times, we concluded
that the juvenile court had abused its discretion in a CINA case by denying a request by a
parent to present evidence relevant to disputes of material fact and instead ruling based on
factually controverted proffers. That was not the circumstance here, however. At the
outset of the December 7, 2020 exceptions hearing, counsel for the parties agreed that there
were no facts in dispute and to proceed by presentation of argument for that reason. None
of the parties called, or asked to call, witnesses. Counsel for the Department asked the
court to hear Ms. Stephanos, K.L.’s social worker, and no one objected.
Moreover, the material facts were not in dispute. Counsel for the Department
referenced Dr. Pine’s testimony at the 2017 hearing about K.L.’s gender dysphoria
42
diagnosis; the use of puberty blockers and hormone medication to effectuate the gender
transition process; and the impact that such treatment likely would have on K.L.’s comfort
with her gender identity. Counsel also referred to Dr. Pine’s 2017 testimony that
medication reduces the risk that transgender people like K.L. will experience violence,
bullying, and self-harm. She asked the court to take “judicial notice” of this prior testimony.
Mother’s counsel neither objected nor asked to present opposing evidence. Indeed, Mother
did not appeal the juvenile court’s 2017 order.
As noted, the Department’s counsel further referenced the 2018 study titled,
“Chosen Name Use is Linked to Reduced Depressive Symptoms, Suicidal Ideation and
Behavior among Transgender Youth,” supra, at n. 14, which emphasizes the positive
impact that use of chosen names has on transgender youth. Mother’s counsel did not
object. Ms. Stephanos explained why it was difficult for K.L. to appear at a hearing at
which her original name is used and she is referred to by masculine pronouns; that K.L.’s
Identification Card identifies her as male and she is “outed” when she must use it in
applying for jobs; that K.L. consistently has expressed the desire to change her first name
to be feminine; and that K.L.’s mental health is adversely affected when she must use a
masculine first name and is referred to with masculine pronouns.
Rather than object to any of this or seek to present countervailing evidence,
Mother’s counsel presented by way of argument (as agreed) reasons why the Department
should not be given authority to consent to a petition for name change and declaration of
gender marker for K.L.: that K.L. had not experienced violence so a name change was not
necessary to protect her; that the study on use of chosen names was not specific to K.L.,
43
for the same reason; and that changing K.L.’s name would mean she would have a feminine
name and male genitals, which itself could expose her to harm.
Unlike in In re M.C. and In re Damien F., the juvenile court in this case did not
proceed on competing proffers in the face of disputed material facts and a request to present
evidence. There were no proffers; the material facts were not disputed; and the parties
agreed to proceed on arguments only and did so.
The undisputed material facts before the juvenile court were that K.L., 16 years old
at the time, had been diagnosed several years earlier with gender dysphoria and, under the
supervision of a health care practitioner and with the support of her social worker, has been
taking feminizing hormones and other accepted medications to transition to female
physically. She perceives herself as female and, consistent with her gender identity,
presents herself as a female. She is embarrassed and humiliated in situations where she
has to use official identification with a masculine name, is called by her masculine given
name from birth, or is referred to with masculine pronouns. She has been using a chosen
feminine name and feminine pronouns and no longer identifies with her given name. She
wants a feminine first name to match her gender identity and does not want to change her
last name.
Although the juvenile court was deciding whether it advances K.L.’s best interests
for the Department, instead of Mother, to have the sole authority to consent to the filing of
a petition for name change and gender marker declaration for K.L., it is worth noting that
the undisputed facts elicited in this case satisfy many of the factors the courts in Sacklow
and Matter of H.C.W. held are central to a judicial decision whether to grant a transgender
44
minor’s request to change first name. We agree with the observations of those courts that
virtually all of the considerations relevant to whether it is in a child’s best interest to
undergo a change in surname are not material to whether a transgender child’s first name
should be changed to align with the child’s gender identity. The best interest factors
approved in Dorsey v. Tarpley, for example, focus on how changing a child’s last name
will affect the parent-child relationship. Dorsey, 381 Md. at 117 (effect of having one
surname or another on mother-child and father-child relationships; identification of child
as part of family unit based on last name; misconduct of parent disparaging surname;
degree of good will or respect associated with particular surname; length of time child has
used surname). These factors are important when parents are in a dispute over their child’s
last name, because a surname reflects association between the child and a parent or a
family. They have no bearing on whether a child’s first name should be changed because
it is inconsistent with the child’s gender identity.
In essence, the arguments Mother’s counsel put forth were that K.L. had not
experienced violence due to her transgender status, so publications advocating that it is
protective for transgender people to change their given names do not apply to her, and that
she might be the target of violence if she has a feminine first name but has not undergone
gender confirmation surgery. There are several weaknesses in these arguments.
Fortunately, K.L. has not yet experienced violence, but that is no reason to discount
the very real danger transgender children face when their status is “outed” by disclosure of
given names that align with their sex-assigned-at-birth but not with their gender identity.
See In re Dustin T., 93 Md. App. 726, 735 (1992) (when assessing the risk of harm to a
45
child, a court need not wait until the child suffers actual injury to protect the child) (citation
omitted). When the same argument was made in Sacklow v. Betts, the chancery court
dismissed it:
The fact that Trevor did not testify to a personal experience of
violence or crime against him based on his gender identity does not negate
the fact that such violence exists. On October 27, 2009, gender identity was
included as a federal hate crime. “Recognizing that transgender people
continue to be disproportionately targeted for bias motivated violence, the
federal statute, known as the ‘Matthew Shepard and James Byrd, Jr. Hate
Crimes Prevention Act’ (Pub. L111-84 § 4701 et seq.), adds…gender
identity…to the categories included in existing federal hate crimes law…”
Matter of E.P.L.[,] 26 Misc.3d 336, 891 N.Y.S.2d 619, 621 (2009).
163 A.3d. at 374.
K.L. has been using a feminized version of her given name, as the common law
allows her to do, which means that most of the time, to the outside world, her appearance
and first name match. This may be protective for her. Her lawyer specified, however, that
there are times when K.L. must use the official given name on her Identification Card,
which is masculine, thereby disclosing, involuntarily, her transgender status and exposing
herself to potential harm. There are many circumstances, for instance those involving
workplaces, school, or health care, where K.L. will have to use her official identification
or state her official given name and thus disclose that she is transgender. Without a court-
ordered name change, that potential risk is continuing. While it is possible she could be
subjected to violence if it becomes known to an unaccepting person that she is a transgender
female who has not undergone gender confirmation surgery, that risk would seem low
compared to the risk of being “outed” by required use of a masculine name outside the
privacy of her home.
46
Likewise, with respect to an action to declare gender identity for K.L., the
preliminary question, whether it is in K.L.’s best interest for Mother to retain her right to
consent (which she has withheld) or for the Department to be granted the right to consent
(which it supports giving), can be measured by assessing whether K.L. likely could prove
to a court that it should grant the requested relief. As discussed, based on our understanding
of the principle espoused in In re Heilig, in a declaration of gender identity action K.L. will
need to adduce proof (or equivalent proof) that an expert health care practitioner has
evaluated her; that that expert attests that K.L. has been receiving feminizing hormones
and/or other medical treatment for the purpose of transitioning physically from male to
female; and that in that expert’s opinion, that treatment satisfies generally accepted medical
standards and warrants a declaration of gender identity for K.L. that is not the same as her
sex-assigned-at-birth. This proof will comport with the proof necessary to obtain a change
in sex designation on a Maryland birth certificate.
The facts before the juvenile court in this case establish that K.L. will be able to
present proof satisfactory for a court to declare that her gender identity is female even
though her sex-assigned-at-birth was male. Dr. Pines evaluated her, diagnosed her with
gender dysphoria, and, as of the date of the hearing, had been treating her with puberty
blockers and feminizing hormones for three years.
When Mother addressed the court, she asserted that mental health problems being
suffered by the public in general due to the pandemic weigh against K.L.’s being permitted
to seek a name change and declaration of gender identity - - notwithstanding the undisputed
fact that K.L.’s mental health is being harmed by her not having an official first name that
47
aligns with her gender identity. Mother demonstrated that she simply is not accepting of
K.L.’s female gender identity, referring to her by the pronoun “he.” The ultimate question
for the court was whether the right to consent on behalf of K.L. should remain with Mother,
who discounts K.L.’s female gender identity even though she has been transitioning to
female for years, or with the Department, which has supported K.L.’s gender transition
over the years, when it is likely that K.L. will be able to prove to a circuit court that her
transgender status militates in favor of changing her gender identity to female and her first
name to a feminine name that comports with that gender.
We consider the juvenile court’s decision not only on those undisputed facts before
it but also in light of the established record of K.L.’s nine years as a CINA, due to Mother’s
neglect, and Mother’s history of refusing to consent to any medical treatment to address
K.L.’s gender dysphoria. Given the total circumstances in this case, we conclude that the
juvenile court’s decision that it is in K.L.’s best interest for the Department to have sole
authority to consent to the filing of an action to change K.L.’s name and to declare her
gender identity was not in error and was well within the scope of its discretion.
ORDER OF THE CIRCUIT COURT FOR
BALTIMORE COUNTY, SITTING AS THE
JUVENILE COURT, AFFIRMED.
COSTS TO BE PAID BY THE
APPELLANT.
48