in Re: Aidyn Rocher an Adult ( 2016 )

Affirmed and Memorandum Opinion filed August 2, 2016.
In The
Fourteenth Court of Appeals
NO. 14-15-00462-CV
IN RE AIDYN ROCHER, AN ADULT
On Appeal from the 308th District Court
Harris County, Texas
Trial Court Cause No. 2015-04730
MEMORANDUM OPINION
Alex Winston Hunter, formerly known as Aidyn Rocher, appeals from the
trial court’s denial of a request to change Hunter’s designated gender from female
to male. The trial court granted Hunter’s request for a name change but denied the
request for a gender designation change. We affirm.
Discussion
On January 28, 2015, Hunter filed an Original Petition for Change of Name
of Adult expressly pursuant to section 45.102 of the Texas Family Code. Tex.
Fam. Code § 45.102 (governing petitions to change the name of an adult). In that
petition, Hunter requested not only a change in name, from Aidyn Rocher to Alex
Winston Hunter, but also a change of “sexual designation” from female to male.1
Other than section 45.102, which contains no reference to, or authorization for, a
gender designation change, the petition does not cite any other law as a basis for
the requests.
At a hearing on the requests, the trial judge noted that he had reviewed two
cases that had apparently been provided to the court by Hunter’s counsel: In re
Estate of Araguz, 443 S.W.3d 233 (Tex. App.—Corpus Christi 2014, pet. denied),
and In re N.I.V.S., No. 04-14-00108-CV, 2015 WL1120913 (Tex. App.—San
Antonio March 11, 2015, no pet.) (mem. op.). Hunter’s counsel then called Hunter
to the stand and asked basic, name-change-related questions, such as date and
place of birth, lack of a felony criminal record, and that the request was not being
made to avoid creditors.2 Near the end of the hearing, counsel cited section
2.005(b)(8) of the Texas Family Code and noted that under the section, proof of an
order relating to a sex change could be used to prove identity for purposes of an
application for a marriage license. As stated, the trial court granted Hunter’s
request for a name change but denied the request for a change in gender
designation.
Family Code section 2.005 requires that in issuing a marriage license, the
county clerk is to verify the identity and age of the applicants. Tex. Fam. Code §
1
Although Hunter did not specify below the purpose of the request, on appeal, Hunter
specifically states that the change is sought for driver’s license purposes. The Texas Department
of Public Safety states on its website that the gender on a driver’s license can be changed with
“an original certified court order verifying the change.” See
http://dps.texas.gov/DriverLicense/changes.htm (last visited July 20, 2016).
2
Hunter’s only gender-related testimony was an affirmative answer to the question, “You
are currently a female legally, correct?”
2
2.005(a). Proof of identity and age can be in several forms, including “(8) an
original or certified copy of a court order relating to the applicant’s name change
or sex change.” Id. § 2.005(b)(8). Although the section appears to contemplate the
possibility of orders relating to gender designation, it does not itself authorize or
provide any procedures or rules for Texas courts to issue such orders. In Araguz,
the court of appeals concluded based on section 2.005(b)(8) that “Texas law
recognizes that an individual who has had a ‘sex change’ is eligible to marry a
person of the opposite sex.” 443 S.W.3d at 245. The Araguz court did not,
however, suggest that the section authorized a trial court to order a change in a
person’s gender designation. In N.I.V.S., the San Antonio court of appeals noted
that one of the parties had “obtained a court order changing his identity from
female to male,” citing section 2.005(b)(8). 2015 WL1120913, at *1 & n.2. As to
that order, however, the court stated that “[b]ecause it is not necessary to the
disposition of this appeal, we do not comment on the effect, if any, of such an
order.” Id. at *4 n.4.3
In short, none of the law Hunter cited to the trial court—Family Code
sections 2.005 and 45.102, Araguz, and N.I.V.S.—authorized the court to make the
3
The issue in N.I.V.S. was whether a party who had obtained a court order changing the
party’s gender designation from female to male had standing to bring a proceeding to adjudicate
parentage of adopted children. 2015 WL1120913, at *1-2. The court noted that standing must
exist at the time of the filing of a lawsuit and that the party in question obtained the court order
only after filing the lawsuit. Id. at *4. Accordingly, the court affirmed the dismissal of the
lawsuit without addressing the merits of the order. Id. at *4 n.4, *7. In a subsequent lawsuit (not
raised by Hunter), the same party again asserted standing. See In re Sandoval, No. 04-15-00244-
CV, 2016 WL 353010 (Tex. App.—San Antonio Jan. 27, 2016, orig. proceeding). In its
subsequent opinion, the court of appeals again found the party lacked standing; however, in
dicta, the court stated that the gender change order “may . . . be sufficient to acknowledge [the
party’s] legal status as a man.” Id. at *3. The court also emphasized, though, that “[t]he Order
Granting Change of Identity was not challenged in the proceeding in which it was obtained.” Id.
Therefore, neither of these opinions supports the notion that gender identification can be changed
by utilizing the section 45.102 name-change procedure as attempted by Hunter in the present
case.
3
ruling Hunter requested, i.e., a change of Hunter’s gender designation. On appeal,
Hunter additionally notes that Texas provides procedures for amending or
correcting birth certificates. See Tex. Health & Safety Code §§ 191.028(b) (“An
amending certificate may be filed to complete or correct a record that is incomplete
or proved by satisfactory evidence to be inaccurate. The amendment must be in a
form prescribed by the department.”); 192.011 (b) (“On the request of the person
or the person’s legal representative, the state registrar, local registrar, or other
person who issues birth certificates shall issue a birth certificate that incorporates
the completed or corrected information instead of issuing a copy of the original or
supplementary certificate with an amending certificate attached.”). Hunter
acknowledges, however, that as a native of Pennsylvania, the Texas birth
certificate provisions would not apply.
Hunter additionally suggests that it would be unduly burdensome to have to
apply to Pennsylvania for an amended birth certificate. Indeed, Hunter’s main
argument on appeal is a claim that the trial court’s failure to permit him to use the
name change procedure under Family Code section 45.102 to also change gender
designation violated the right to due process guaranteed by the Fourteenth
Amendment to the United States Constitution, citing Obergefell v. Hodges, 135 S.
Ct. 2584 (2015) (finding a constitutional right to same-sex marriage). Hunter,
however, did not make this argument below, so it is not preserved for appellate
review. See Tex. R. App. P. 33.1(a) (providing that preservation of error is a
prerequisite for appellate review); In re L.M.I., 119 S.W.3d 707, 710-11 (Tex.
2003) (holding constitutional claim was waived when not adequately raised in trial
court); Robinson v. KTRK Television, Inc., No. 01-14-00880-CV, 2016 WL
1267990, at *3 (Tex. App.—Houston [1st Dist.] March 31, 2016, pet. denied)
(“Even constitutional complaints must be raised below or they are not preserved
4
for appellate review.”).
We further note that even if Hunter had preserved this constitutional
complaint, Hunter did not present any evidence in the trial supporting the
proposition that Hunter’s current gender designation is inaccurate. See generally
Araguz, 443 S.W.3d at 245-48 (discussing evidence presented in that case
pertaining to both gender change surgery as well as the party-in-question’s pre-
surgery gender identification).4 As set forth above, Hunter only testified regarding
the basic name-change requirements. See Tex. Fam. Code § 45.102. Although
Hunter’s original petition was verified, a mere request for a change in gender
designation is not evidence supporting such a change.
Because Hunter has not established on appeal that the trial court erred in
denying the request for a gender designation change, we overrule Hunter’s sole
issue. We affirm the trial court’s judgment.
/s/ Martha Hill Jamison
Justice
Panel consists of Justices Jamison, Donovan, and Brown.
4
We need not in this case take any position regarding what type of evidence could suffice
to demonstrate a gender change. See generally Alewine v. City of Houston, 309 S.W.3d 771, 779
n.10 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (declining to address issue when not
necessary to disposition of the case).
5