In re Gray and Rice , 2021 UT 13 ( 2021 )

2021 UT 13IN THE
SUPREME COURT OF THE STATE OF UTAH
IN THE MATTER OF THE SEX CHANGE OF
SEAN W. CHILDERS-GRAY, F.K.A. JENNY PACE, and
ANGIE RICE, F.K.A. ARTHUR EDWARD RICE,
Appellants.
No. 20170046
Heard January 8, 2018
Supplemental Briefing Completed January 6, 2020
Filed May 6, 2021
On Direct Appeal
Second District, Morgan
The Honorable Noel S. Hyde
No. 163500015
Second District, Ogden
The Honorable Noel S. Hyde
No. 163900359
Attorneys:1
T. Christopher Wharton, Eric Kyler O‘Brien, Bethany M. Jennings,
Troy L. Booher, Beth E. Kennedy, Alexandra Mareschal,
Salt Lake City, for appellants
JUSTICE HIMONAS authored the opinion of the Court in which
JUSTICES PEARCE AND PETERSEN joined.
CHIEF JUSTICE DURRANT filed an opinion concurring in part,
dissenting in part, and concurring in the judgment.
ASSOCIATE CHIEF JUSTICE LEE filed a dissenting opinion.
__________________________________________________________
1Amicus Curiae attorneys are Sean D. Reyes, Att‘y Gen., Tyler
R. Green, Solic. Gen. (fmr.), Stanford E. Purser, Deputy Solic.
Gen., Salt Lake City, for the State of Utah.
IN RE SEX CHANGE
Opinion of the Court
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶1 Appellants, Sean Childers-Gray and Angie Rice,
petitioned the district court to change their legal sex designations
because the designations do not reflect their identities. Supposing
such matters implicate a purely legislative prerogative, the district
court denied Appellants‘ petitions.
¶2 The district court was mistaken in its supposition. A
person has a common-law right to change facets of their personal
legal status, including their sex designation. In recognition of this
right, the Utah legislature has statutorily declared that, as a matter
of the public policy of this state, when ―a person born in this state
has a name change or sex change approved by an order of a Utah
district court,‖2 they can file such order with the state registrar
with an application to change their birth certificate. UTAH CODE
§ 26-2-11(1).3 If the registrar determines the application is
complete, the registrar must change the sex on the person‘s birth
certificate. Id.
¶3 Associate Chief Justice Lee‘s dissent disagrees on all
fronts, contesting the relevant legislation and the historical
practice of Utah courts. The dissent suggests that it is protecting
the interests of the State. See, e.g., infra ¶ 195 (suggesting that our
articulated standard ―will control all future proceedings in our
Utah courts and will bind the executive branch of our government
. . . going forward‖). Yet the State does not argue for the principles
__________________________________________________________
2 To be more exact, the relevant statutory provision also
extends to orders of ―a court of competent jurisdiction of another
state or a province of Canada.‖ UTAH CODE § 26-2-11(1).
3 Utah Code section 26-2-11 was originally enacted in 1975. See
1975 Utah Laws 222; (originally codified at UTAH CODE
§ 26-15-16.5 (1975)). In 1981, the legislature re-codified the entire
chapter and re-numbered it, resulting in the current citation—
section 26-2-11. 1981 Utah Laws 598. Aside from the renumbering,
no material change was made to this section. A change was only
made in 1995, which included minor linguistic changes. See 1995
Utah Laws 676. Neither the parties nor the concurrence or dissents
claim any such changes matter. In this opinion, we refer to the
section in its current numbering and language unless we explicitly
say otherwise.
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the dissent advances. In its amicus brief, the State either opposes
the dissent‘s position or presents arguments for why we should
not reach such a resolution. Nevertheless, we take care
throughout our opinion to respond to the dissent‘s arguments,
which we firmly reject.
¶4 Today, we provide a plain-meaning interpretation of the
duly enacted law allowing individuals to change their sex
designations. In the process, we explain that Mr. Childers-Gray
and Ms. Rice met the requirements—articulated by us today but
rooted in common law and applied by Utah district courts and
other authorities—for their sex-change petitions to be approved.4
Accordingly, we reverse and remand with instructions to enter
orders granting their sex-change petitions.5
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4 Language matters: We address appellants by their
appropriate pronouns. The ease with which we could have
misgendered them by using opposite-sex pronouns, despite their
appearances and pronouncements, amplifies the importance of
matching their government identification documents to their
held-out identities.
5 Again, language matters: Appellants and the district court
use several different terms to describe the change to legal status or
identification requested in the petition. For the convenience of the
reader, and without definitively rejecting other terms, we use in
this opinion the terms ―sex change‖ and ―sex designation
change,‖ rather than ―gender change.‖ We also note that the
legislature has indicated in another context that in Utah, ―‗sex‘
means gender.‖ UTAH CODE § 57-21-2(22). We recognize that these
terms do ―have distinct meanings. ‗Gender‘ generally refers to a
social construct based on psychological characteristics that classify
an individual as feminine or masculine, while ‗sex‘ generally
refers to biological sex as evidenced by chromosomes, genitals,
and other physical characteristics.‖ Gram v. Intelligender, LLC, CV
10-4210 ABC (VBKx) 2010 WL 11601035, at *1 n.2 (C.D. Cal. Oct. 8,
2010). In this context, we find it noteworthy that while the
legislature said that ―‗sex‘ means gender,‖ it did not say the
opposite, i.e., that gender means sex. Therefore, we assume that by
choosing this equation, the legislature, in its wisdom, conferred
broader meaning to the term ―sex.‖
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IN RE SEX CHANGE
Opinion of the Court
BACKGROUND
¶5 Sean Childers-Gray6 is a transgender7 man who was
assigned female at birth. He ―lives 100% as a male‖ and holds
himself out as a male to his family, friends, and the public. He
was diagnosed with gender identity disorder8 and underwent
hormone therapy to change his physical appearance. At the time
of his petition, he had been treated with hormone therapy for
more than three years. This therapy significantly changed his
voice, body hair growth, and breast tissue, and caused his female
organs to no longer function.
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6 Mr. Childers-Gray has changed his birth name to reflect his
identity.
7 The American Psychological Association defines transgender
as ―an umbrella term for persons whose gender identity, gender
expression or behavior does not conform to that typically
associated with the sex to which they were assigned at birth.‖
Transgender People, Gender Identity and Gender Expression, AM.
PSYCH. ASS‘N, https://www.apa.org/topics/lgbt/transgender
(last visited April 21, 2021); see also Transgender, OXFORD ENG.
DICTIONARY ONLINE,
https://www.oed.com/view/Entry/247649?redirectedFrom=tra
nsgender#eid (last visited April 21, 2021) (defining transgender as
―[d]esignating a person whose sense of personal identity and
gender does not correspond to that person‘s sex at birth, or which
does not otherwise conform to conventional notions of sex and
gender‖); Transgender, BLACK‘S LAW DICTIONARY (11th ed. 2019)
(―A person whose physical sex at birth differs from the sex with
which the person later identifies.‖).
8 Appellants do not define ―gender identity disorder,‖ but an
American Medical Association resolution defines it as ―a
persistent discomfort with one‘s assigned sex and with one‘s
primary and secondary sex characteristics, which causes intense
emotional pain and suffering . . . .‖ AM. MED. ASS‘N, RESOLUTION
122 (A-08) at 1 (2008),
http://www.imatyfa.org/assets/ama122.pdf; see also F.V. v.
Barron, 286 F. Supp. 3d 1131, 1136–37 (D. Idaho 2018) (citing the
American Medical Association‘s definition of gender identity
disorder). Although Mr. Childers-Gray uses the term ―gender
identity disorder‖ to describe his diagnosis, we use the term
―gender dysphoria‖ for the reasons we set forth in ¶ 6 n.10.
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¶6 Angie Rice9 is a transgender woman who was assigned
male at birth. She ―lives 100% as a female‖ and holds herself out
as a female to her family, friends, and the public. She was
diagnosed with gender dysphoria,10 and at the time of her
petition‘s filing, she had been treated with hormone therapy for
five years to change her physical appearance.
¶7 Mr. Childers-Gray and Ms. Rice each filed petitions in the
district court, seeking orders to change their names and sex,
which would allow them to change the designations on their birth
certificates. The petitions complied with the requirements
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9 Ms. Rice has also changed her birth name to reflect her
identity.
10 Appellants do not define ―gender dysphoria‖ either.
However, another court has explained that it is a ―clinical medical
condition‖ that ―can result from‖ the emotional stress produced
from a gender identity disorder. F.V., 286 F. Supp. 3d at 1136–37.
That court also adopted the definition of the American Psychiatric
Association for gender dysphoria, which further explains that
―[p]eople with gender dysphoria may often experience significant
distress and/or problems functioning associated with this conflict
between the way they feel and think of themselves (referred to as
experienced or expressed gender) and their physical or assigned
gender.‖ Id. at 1137 n.7 (quoting What is Gender Dysphoria?, AM.
PSYCHIATRIC ASS‘N (Jack Turban, Physician Reviewer, Nov. 2020),
https://www.psychiatry.org/patients-families/gender-
dysphoria/what-is-gender-dysphoria).
The American Psychiatric Association found that the term
―disorder‖ suggests a ―stigma‖ that can get in the way of
―ensur[ing] clinical care‖ for those who might otherwise seek it.
See AM. PSYCHIATRIC ASS‘N, GENDER DYSPHORIA (2013),
https://www.psychiatry.org/File%20Library/Psychiatrists/Pract
ice/DSM/APA_DSM-5-Gender-Dysphoria.pdf (noting that DSM-
5 ―replace[d] the diagnostic name ‗gender identity disorder‘ with
‗gender dysphoria‘‖ to ―avoid stigma and ensure clinical care for
individuals who see and feel themselves to be a different gender
than their assigned gender‖). We therefore use the term ―gender
dysphoria‖ throughout this opinion. We note that other courts
have recently done the same. See, e.g., Hecox v. Little, 479 F. Supp.
3d 930, 945 (D. Idaho 2020), appeal docketed, No. 20-35813 (9th Cir.
Sept. 17, 2020).
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IN RE SEX CHANGE
Opinion of the Court
outlined in Utah Code section 42-1-1, which governs name-change
petitions (Utah does not have a statute governing the express
content of sex-change petitions). Specifically, the petitions
included the reasons for the name and sex changes and statements
that Mr. Childers-Gray and Ms. Rice had been residents of the
county where they lived for at least one year before filing. See
UTAH CODE § 42-1-1. In addition, both petitions included letters
from a medical doctor stating that appellants had been treated for
gender dysphoria and had undergone ―the appropriate clinical
treatment‖ for gender transition. The petitions also stated that
appellants were not listed on the sex offender registry, involved in
any legal proceedings, placed on probation or parole, seeking to
avoid creditors, or seeking the name- and sex-designation changes
for any fraudulent purpose. Ms. Rice‘s petition also documented
her personal history, the significant emotional distress that she
endured in the past when presenting herself as a man, and the
negative treatment she endures now because her ―documentation
doesn‘t match who‖ she is.
¶8 The district court granted Mr. Childers-Gray‘s and Ms.
Rice‘s name-change petitions, ruling that all statutory
requirements had been satisfied. But the district court denied their
sex-change petitions.
¶9 The district court gave two reasons for denying Mr.
Childers-Gray‘s sex-change petition. First, it held ―there is no
statute in the State of Utah that sets forth either standards or
procedures under which the court may consider such request.‖
The district court found that such lack of legislative guidance
meant that a sex-change matter is a nonjusticiable political
question. Second, the district court denied the sex-change petition
under the name-change standard. It explained that a name-change
petition must be denied if it will ―affect the legal rights or duties
of either the petitioner or anyone else.‖ Applying that standard to
sex-change petitions, the district court found that granting the
sex-change petition was undoubtedly bound to affect others‘
rights. It then gave numerous hypotheticals in which a sex change
would affect the ―rights and duties of others that interact with‖
Mr. Childers-Gray.
¶10 The district court did not rely on this second reason
when it denied Ms. Rice‘s sex-change petition. It held only that
―[t]he procedure for obtaining a sex/gender marker change must
be set forth by the legislature,‖ and because it was not, the district
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court found itself ―prohibited from invading the legislature‘s
prerogative on this issue.‖
¶11 Appellants appealed the orders denying their petitions
for sex changes. We consolidated the cases.11
¶12 During oral argument in January 2018, we noted sua
sponte that appellants come before us unopposed and questioned
whether this lack of adversariness deprived us of jurisdiction to
hear the case. In November 2018, we issued an order staying this
case pending our decision in In re Gestational Agreement, a case
that also lacked adversariness and in which we expected to
address the impact of such posture on our jurisdiction. We issued
an opinion in that case in August 2019, In re Gestational Agreement,
2019 UT 40, 449 P.3d 69, and consequently requested
supplemental briefing from appellants and called for the views of
the State, through the Attorney General, under rule 25A(c) of the
Rules of Appellate Procedure. We have jurisdiction under Utah
Code section 78A-3-102(3)(j).
STANDARD OF REVIEW
¶13 Although we have never reviewed a district court‘s
decision to grant or deny a petition for sex change, we have
reviewed decisions on petitions for name change ―under an abuse
of discretion standard.‖ In re Porter, 2001 UT 70, ¶ 4, 31 P.3d 519.
Because name changes and sex changes are analogous, see infra
¶¶ 40–43, we also review for abuse of discretion a district court‘s
decision to grant or deny a petition for a sex change. And we
review the legal questions underlying the determination for
correctness. See Taylor v. Univ. of Utah, 2020 UT 21, ¶ 13, 466 P.3d
124.
¶14 ―We review questions of statutory interpretation for
correctness, affording no deference to the district court‘s legal
conclusions.‖ State v. Outzen, 2017 UT 30, ¶ 5, 408 P.3d 334(citation omitted). And we review ―the constitutionality of a
statute for correctness, giving no deference to the lower court‘s
interpretation,‖ State v. Greenwood, 2012 UT 48, ¶ 26, 297 P.3d 556,
presuming ―the statute is constitutional‖ and resolving ―any
reasonable doubts in favor of constitutionality.‖ Brown v. Cox,
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11 For the ease of the reader, we treat the consolidated cases in
the singular form.
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IN RE SEX CHANGE
Opinion of the Court
2017 UT 3, ¶ 11, 387 P.3d 1040 (quoting State v. Drej, 2010 UT 35,
¶ 9, 233 P.3d 476)).
ANALYSIS
¶15 We begin with jurisdiction. Sex-change petitions
quintessentially ask for a change in a person‘s legal status or
identification. We have ―judicial power‖ to adjudicate sex-change
petitions because they seek changes to a petitioner‘s legal status or
identification, and such ―function[] w[as] intended by the framers
of our constitution to be included in the constitutional grant to the
judiciary.‖ In re Gestational Agreement, 2019 UT 40, ¶ 13, 449 P.3d
69. And so, we have jurisdiction to adjudicate them.
¶16 With jurisdiction to hear sex-change petitions, we move
to the question of a district court‘s authority to adjudicate them,
i.e., whether there is a framework for adjudicating such petitions.
Utah district courts have common-law authority, as codified by
statute, to adjudicate petitions for a name change. In re Porter,
2001 UT 70, ¶ 8, 31 P.3d 519. Utah law presupposes a district
court‘s authority to order name and sex changes, see UTAH CODE
§ 26-2-11(1) (referring to ―[w]hen a person born in this state has a
name change or sex change approved by an order of a Utah
district court‖), thereby conferring on sex-change adjudication the
common-law authority existing with respect to name-change
adjudication. See Maxfield v. Herbert, 2012 UT 44, ¶ 31, 284 P.3d 647(―[W]hen a word or phrase is transplanted from another legal
source, whether the common law or other legislation, it brings the
old soil with it.‖ (internal quotation marks omitted)). Any lack in
a statute to detail the content of a sex-change petition has no effect
on a district court‘s authority to adjudicate and approve such a
petition because the district court‘s authority is based on common
law and independent from statute. As such, we find ample
authority in the district court to adjudicate sex-change petitions.
¶17 We then examine whether there are any constitutional
barriers to our adjudication of sex-change petitions. We hold that
neither Utah Code section 26-2-11 nor the adjudication of sex-
change petitions run afoul of the Utah constitution or separation-
of-powers principles.
¶18 Finding jurisdiction, authority, and no constitutional
impediment to adjudicating sex-change petitions, we next
articulate and explain the test to decide sex-change petitions. In
doing so, we refute the test identified by the dissent. Our test has
already been used by our district courts, exercising their common-
law judgment. The test we articulate borrows from our common-
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law jurisprudence about name-change petitions and is adapted to
fit sex-change petitions. We conclude that, as a general rule, sex-
change petitions should be granted if (1) they are not ―sought for
a wrongful or fraudulent purpose,‖ In re Porter, 2001 UT 70, ¶ 8
(quoting Isom v. Cir. Ct. of the Tenth Jud. Cir., 437 So.2d 732, 733
(Fla. Dist. Ct. App. 1983)), and (2) they are supported by objective
evidence of a sex change, which includes, at minimum, evidence
of appropriate clinical care or treatment for gender transitioning
or change, provided by a licensed medical professional.
¶19 Finally, we apply the test to the petitions before us and
conclude Mr. Childers-Gray and Ms. Rice met its requirements.
We accordingly reverse and remand with instructions to enter
orders granting their sex-change petitions.
I. WE HAVE JURISDICTION TO HEAR THIS CASE
¶20 Before getting to the meat of the matter, we address our
jurisdiction to hear it. 12 We have jurisdiction to hear matters that
are within the scope of the ―judicial power of the state.‖ UTAH
CONST. art. VIII, § 1. Our case law has ―traditionally‖ limited our
judicial power ―to the adjudication of disputes.‖ In re Gestational
Agreement, 2019 UT 40, ¶ 12, 449 P.3d 69. So, when ―no dispute
between opposing parties exists‖—that is, when there is a lack of
adversariness—we will often, but not always, decline to hear a
case.13 See id. ¶¶ 12–13. Recognizing that this case lacks
__________________________________________________________
12Following the structure of our supplemental briefing order,
in this section we only discuss adversariness concerns. We
address authority and constitutionality in Parts II and III below.
13 This court recently engaged in a debate ―regarding the
source of [the adversariness principle] and the limits of our
judicial power.‖ Salt Lake Cnty. v. State, 2020 UT 27, ¶ 37 n.44, 466
P.3d 158. And that was not the first time such a debate was had.
Justice Pearce, concurring in In re Gestational Agreement, , opined
that adversariness might well be a prudential and not a
jurisdictional concern because the Utah constitution, unlike the
federal constitution, does not expressly include the ―case or
controversy language‖ as a limit on our judicial power. 2019 UT
40, ¶ 86 (Pearce, J., concurring). And while we find much to
commend in Justice Pearce‘s analysis, we need not reach the issue
today. This case, like In re Gestational Agreement and Salt Lake
County, can be resolved without conclusively deciding this
(continued . . .)
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IN RE SEX CHANGE
Opinion of the Court
adversariness, we asked appellants and the Attorney General for
supplemental briefing on two questions:
(1) Does the lack of adversariness prevent this Court
from exercising jurisdiction over this matter? (2) Is an
application seeking approval of an amendment to a
birth certificate a matter ‗intended by the framers of
our constitution to be included in the constitutional
grant [of power] to the judiciary‘? If not, does it
resemble other matters our state courts handled at the
time of statehood?
(Alteration in original) (citations omitted.)
¶21 The appellants and, notably, the Attorney General as
representative of the State provided identical answers: ―no‖ to our
first question and ―yes‖ to the second. We agree with their
answers, but, as we explain below, not necessarily with all of their
reasoning. We hold that we have jurisdiction over sex-change
petitions because, historically, Utah courts adjudicated changes to
legal status or identification, and they did so without
adversariness. And, as this opinion explains, sex-change petitions
seek to change the petitioner‘s legal status or identification. As a
result, sex-change petitions are within the grant of judicial power,
and we have jurisdiction over them.
A. Our Constitutional Power Is Not Limited to Adversarial Issues
¶22 ―[A]dversariness does not completely define the scope
of our constitutional power.‖ In re Gestational Agreement, 2019 UT
40, ¶ 13. Indeed, Utah courts‘ judicial power includes ―functions‖
that ―were intended by the framers of our constitution to be
included in the constitutional grant to the judiciary,‖ even if they
are ―entirely non-adversarial.‖ Id. One function that Utah courts
have had since even before statehood is the authority to decide
name-change petitions—even when the petition lacks
adversariness. Sex-change petitions have an identical function to
question. And so, again, we leave the ―possibil[ity] that, in a
future case, a historical analysis of the original meaning of the
Utah Constitution may lead us to rethink the way our case law
has described the limits of the judicial power‖ but ―decline to
revisit that case law unnecessarily here.‖ Salt Lake Cnty., 2020 UT
27, ¶ 37 n.44.
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name-change petitions, see infra ¶¶ 40, 42, and so we have
jurisdiction over them, too.
¶23 This opinion holds that the constitutional grant of
power to the judiciary includes jurisdiction over changes to legal
status or identification, regardless of the existence (or lack thereof)
of adversariness.
¶24 In arguing against the judiciary‘s jurisdiction to hear
non-adversarial matters, the dissent draws a distinction between
adverse ―argument‖ and adverse ―interests.‖ See infra ¶¶ 161–180.
Though we find no need today to conclusively adjudicate the
question of whether the Utah Constitution limits our jurisdiction
to issues involving adversariness, we will briefly address this
argument. The dissent explains that adverse argument is not
constitutionally required, given that arguments may be forfeited
or waived. See infra ¶ 166. So far, we agree. But the dissent next
posits that ―adverse interests‖ are ―required as a matter of
historical practice.‖ Infra ¶ 168 (citing Ann Woolhandler, Adverse
Interests and Article III, 111 N.W. U. L. REV. 1025, 1032 (2017)). In
other words, the dissent insists that the existence of adverse
interests—whether stated, waived, or forfeited—is a prerequisite
for judicial resolution. According to the dissent, cases with
adverse interests but no adverse briefing are not non-adversarial
but merely ―uncontested.‖ Infra ¶ 169.
¶25 We disagree on several grounds. To begin, our case law
draws no distinction between adverse arguments and interests
when determining justiciability. Rather, it looks to whether the
courts have otherwise been granted the substantive power to
adjudicate the matter, regardless of adversariness. As recently as
2019, we‘ve held ―that the traditional principle of adversariness in
our justiciability jurisprudence does not apply‖ in matters in
which the courts have been otherwise granted a substantive
power.14 In re Gestational Agreement, 2019 UT 40, ¶ 18 (finding that
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14 The dissent states that in In re Gestational Agreement, this
court ―reinforced the longstanding general rule that our courts lack
jurisdiction in the absence of any justiciable controversy between
adverse parties.‖ Infra ¶ 175 (emphasis added) (quoting In re
Gestational Agreement, 2019 UT 40, ¶ 12) (internal quotation marks
omitted). We disagree with this characterization of the court‘s
opinion in that case. The court recognized the adjudication of
adoption rights ―to be a substantive category over which Utah
(continued . . .)
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IN RE SEX CHANGE
Opinion of the Court
courts may validate gestational agreements because the
―termination and creation of parental rights [is] a substantive
power intended to be included in the constitutional grant of
judicial power to the courts . . . despite the lack of adversariness in
gestational agreement proceedings‖ (footnote omitted)); see also
Salt Lake Cnty. v. State, 2020 UT 27, ¶ 37 n.44, 466 P.3d 158 (noting
―that a debate exists regarding the source of th[e] principle
[against deciding abstract questions] and the limits of our judicial
power‖).
¶26 Perhaps overlooking this case law, the dissent
significantly relies on a law review article from which it draws the
distinction and respective jurisdictional requirements of legal
argument versus interests. See infra ¶¶ 168–72. While we respect
Professor Woolhandler‘s scholarship, it is not binding on this
court.
¶27 Further, the dissent‘s distinction between adverse
―argument‖ and ―interests‖ swallows itself. The dissent refutes
the notion that naturalization proceedings are non-adversarial,
pointing to Tutun v. United States, 270 U.S. 568 (1926), for the
proposition that ―[t]he United States is always a possible adverse
party‖ in such proceedings. Infra ¶ 174 (alteration in original). But
a court could always identify a ―possible‖ adverse party for any
matter before it. The dissent‘s examples regarding the societal
consequences of today‘s decision, infra ¶ 144, provide an example
of how mere speculation of possible adverse interests might result
in a judge‘s unilateral identification of adverse interests beyond
the briefing by the parties and amicus curiae. To put it another
way, the dissent differentiates between ―possible adverse
part[ies]‖ and adverse parties that actually appear to represent
their interests, ultimately equating ―possible adverse part[ies]‖
courts had historical power to preside, notwithstanding the
absence of a controversy between adverse parties.‖ In re
Gestational Agreement, 2019 UT 40, ¶ 13 (emphasis added). To this
end, the court explained ―that the courts had sufficient power to
participate in proceedings that lacked a dispute between opposing
parties,‖ id. ¶ 16—at least in proceedings involving parental
rights—and did not further consider whether such proceedings
are non-adversarial or merely ―uncontested.‖ And so, we cannot
agree with the dissent‘s belief that In re Gestational Agreement
reinforced any adversariness requirement.
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with adverse interests. This conception of adverse interests is so
expansive as to obviate the need for an explicit requirement of
―justiciable controversy.‖
¶28 The State and appellants also argue that we have
jurisdiction over this case because there is a potential for adverse
litigation here, which is sufficient to invoke ―case or controversy‖
jurisdiction under United States Supreme Court precedent. See
Tutun, 270 U.S. at 577.
¶29 It is true that, unlike the statute in In re Gestational
Agreement, the statute here does not explicitly require
nonadversariness. Compare UTAH CODE § 78B-15-803(2)(e) (2008),15
with id. § 26-2-11, and id. § 42-1-1. But because sex-change petitions
resemble other petitions over which Utah courts had jurisdiction
at founding, we have jurisdiction to address this matter and
therefore need not address the potential adversariness argument.
See infra ¶¶ 40–43. We do note, however, the existence of a serious
debate on this topic.16
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15 This statute was amended in 2020, after our disposition of In
re Gestational Agreement, resulting in a renumbering. The relevant
provision is now § 78B-15-803(2)(d).
16 Compare James E. Pfander & Daniel D. Birk, Article III Judicial
Power, the Adverse-Party Requirement, and Non-Contentious
Jurisdiction, 124 YALE L.J. 1346, 1394, 1402 (2015) (arguing that the
language in Tutun was ―a stray statement,‖ only
―hypothesiz[ing]‖ this ground for its decision, and concluding
that ―it does not make sense to try to explain away ex parte
proceedings through the possible adversary theory‖), and Michael
T. Morely, Consent of the Governed or Consent of the Government?
The Problems with Consent Decrees in Government-Defendant Cases,
16 U. PA. J. CONST. L. 637, 669 (2014) (stating that Tutun used the
―possible adverse party‖ language ―in passing . . . but did not
delve further into the question of adverseness,‖ and that ―[t]his
approach seems inconsistent with the Court‘s core adverseness
jurisprudence‖), with Woolhandler, Adverse Interests and Article III,
111 NW. U. L. REV. at 1056 (arguing that naturalization petitions,
such as those at issue in Tutun, ―are perhaps Pfander and Birk‘s
best example of non-contentious jurisdiction, but the Court
explicitly approved the practice as appropriate under Article III
(continued . . .)
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Opinion of the Court
¶30 The dissent appears to overlook this debate, insisting
instead that we are establishing that ―our courts can adjudicate
any case over which we have been granted . . . substantive power
by the legislature, at least where the decision amounts to a change
in a person‘s legal status or identification.‖ Infra ¶ 185 (emphasis
added) (quoting this opinion) (citation omitted) (internal
quotation marks omitted). Not so. As we emphasized in In re
Gestational Agreement, this ―substantive power‖ does not flow
from the legislature; rather, it was intended and understood ―to
be included in the constitutional grant of judicial power to the
courts . . . despite the lack of adversariness.‖ 2019 UT 40, ¶ 18. In
sum, we stand behind our position that adversariness is not a
requirement for justiciability in matters involving changes to legal
status or identification.
B. Utah Courts Historically Have Had Jurisdiction to Adjudicate
Changes to Legal Status or Identification
¶31 Having shown that adversariness is not a limitation on
the constitutional grant of power to the courts, at least with
respect to a person‘s legal status or identification, we now turn to
whether adjudication of sex-change petitions is within the
―judicial power‖ granted to the judiciary by article VIII, section 1
of the Utah Constitution. We first explain why our supplemental
briefing order, asking if our framers could have intended courts to
have a constitutional grant to approve ―an amendment to a birth
certificate,‖ was not quite the right inquiry. Then we address the
proper inquiry—whether our progenitors understood the courts
to have power to hear petitions for sex change. We hold that,
while sex-change petitions were not specifically contemplated at
the time of statehood, the judicial power nonetheless includes the
power to hear such petitions because they ―resemble other
matters our state courts handled at the time of statehood,‖
specifically name-change petitions.
¶32 Whether anyone around at the time of the adoption of
the Utah Constitution intended to include adjudication of a petition
to amend a birth certificate in the grant of judicial power is the
only after [statutory] provisions for notice to, and potential
appearance by, the United States‖).
14
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wrong inquiry in this case.17 That is because sex-change and
name-change petitions do not ask the court to approve an
amendment to a birth certificate. Rather, sex-change and
name-change petitions today—like the historical name-change
petitions we discuss below—ask a court to approve a legal change
to the petitioner‘s name or sex, i.e., a change of legal status or
identification. It is only after the court approves that change that a
petitioner may choose to request an amendment to their birth
certificate from the state registrar. UTAH CODE § 26-2-11.
¶33 The proper inquiry, thus, is whether a petition for sex
change—not a petition to amend a birth certificate—is a matter
―intended by the framers of our constitution to be included in the
constitutional grant [of power] to the judiciary.‖ (Alteration in
original.)
¶34 That brings us to the next step of our inquiry. We show
that petitions for a sex change ―resemble other matters our state
courts handled at the time of statehood‖: petitions for name
changes. Crucial to this step is the understanding that ―[t]he Utah
Constitution enshrines principles, not application of those
principles.‖ South Salt Lake City v. Maese, 2019 UT 58, ¶ 70 n.23,
450 P.3d 1092. We employ analogies not because doing so is
necessary to discern a principle, but because it helps us to better
understand those fundamental principles. Accordingly, we
discuss Utah courts‘ historical power to preside over name-
change petitions. Then we explain that the adjudication of a
name-change petition, when it comes right down to it, is merely
one part of a broader ―substantive category over which Utah
courts had historical power to preside‖: the adjudication of
__________________________________________________________
17 Neither the framers of our constitution nor the general
public specifically contemplated including adjudication of a
petition to amend a birth certificate in the judiciary‘s
constitutional grant because, simply put, birth certificates did not
exist in 1896. And so, birth-certificate changes were not
contemplated at the time. See Birth Records, UTAH DIV. OF
ARCHIVES & RECORDS SERV.,
https://archives.utah.gov/research/guides/birth.htm#pre
(noting that the Utah Department of Health introduced birth
certificates in 1905 for all individuals born in the state and linking
relevant databases) (last visited on April 21, 2021).
15
IN RE SEX CHANGE
Opinion of the Court
changes to the legal status or identification of an individual. In re
Gestational Agreement, 2019 UT 40, ¶ 13. As a result, adjudicating
changes to the legal status or identification of individuals was a
―function[] . . . intended by the framers of our constitution to be
included in the constitutional grant to the judiciary.‖ Id. As we
explain below, sex-change petitions are petitions to change the
legal status or identification of an individual because they are
analogous to name-change petitions, and so adjudicating them is
a function that falls squarely within the judicial power.
¶35 To put it simply, name-change petitions seek to change
the legal status or identification of an individual because a name
is one of an individual‘s numerous legal attributes. These legal
attributes, some of which are indicated on a birth certificate, may
serve as conditions that shape an individual‘s opportunities and
obligations, such as marital or civil status. See, e.g., Obergefell v.
Hodges, 576 U.S. 644, 669–70 (2015) (―[J]ust as a [married] couple
vows to support each other, so does society pledge to support the
couple . . . . [States] have throughout our history made marriage
the basis for an expanding list of governmental rights, benefits,
and responsibilities.‖). Or they may serve for purposes of
identification, such as name, sex, and age or birthdate. See, e.g.,
State v. Chism, 2005 UT App 41, ¶ 18, 107 P.3d 706 (noting that the
date of birth reflected on a state-issued identification card ―is
reliable and presumptively establishes the bearer‘s age despite his
or her somewhat younger physical appearance‖); infra ¶ 196 n.94
(noting that a birth certificate ―serve[s] as proof of an individual‘s
age, citizenship, status, and identity‖ (alteration in original)
(citation omitted)). Thus, information contained in a government-
issued identification document—name, sex, date of birth,
permanent address—has legal significance.
¶36 Before evaluating the similarities between sex-change
and name-change petitions, we address the history of Utah courts‘
adjudication of name-change petitions. In Utah, an individual has
a ―common law right to adopt another name at will.‖ In re Porter,
2001 UT 70, ¶ 8, 31 P.3d 519; In re Cruchelow, 926 P.2d 833, 834
(Utah 1996); accord Moskowitz v. Moskowitz, 385 A.2d 120, 122
(N.H. 1978) (―[A]t common law a person could adopt another
name at will.‖); Smith v. U. S. Cas. Co., 90 N.E. 947, 950 (N.Y. 1910)
(―The elementary writers are uniform in laying down the rule that
at common law a man may change his name at will.‖); 57 AM. JUR.
2D Name § 16 (2020) (―A person has a common-law right to
assume or use any name that he or she lawfully chooses.‖); G.S.
16
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Arnold, Personal Names, 15 YALE L.J. 227, 229 (1906) (―[W]ithout
statutes, any person may at will change [their] name.‖).
¶37 At common law, the right to change one‘s name did not
require state assistance. See Smith, 90 N.E. at 950 (―At common law
a man may lawfully change his name, or by general usage or habit
acquire another name than that originally borne by him, and this
without the intervention of either the sovereign, the courts, or
Parliament.‖ (quoting 21 AM. & ENG. ENCYC. OF LAW (2d Ed.)
311)). But state recognition, through courts, of a name change
gave ―greater sanction to it, and ma[de] it more notorious.‖ Davies
v. Lowndes (1835) 131 Eng. Rep. 1247, 1255. Consequently, courts
have long held the common-law authority to adjudicate this
individual right. See, e.g., Bearbrook v. Read (1600) 1 Brownl. &
Golds. 47 (―The name of Confirmation must stand, for Sir Francis
Grady was christened Thomas, and confirmed Francis, by that
name he must be called.‖).
¶38 State legislatures have enacted procedures for courts to
adjudicate name-change petitions. These statutes do ―not repeal
the common law by implication or otherwise‖; rather, they serve
as powerful affirmations of, and in aid of, the courts‘ common-law
authority. Smith, 90 N.E. at 950 (citation omitted); see also In re
Porter, 2001 UT 70, ¶ 8 (―Statutes similar to sections 42-1-1 and -2
are recognized to merely provide a codified process to aid an
individual‘s common law right to adopt another name at will.‖
(citing In re Cruchelow, 926 P.2d at 834)); In re Knight, 537 P.2d
1085, 1086 (Colo. App. Ct. 1975) (―Statutes setting forth
procedures to be followed in changing a name merely provide an
additional method for making the change.‖); Moskowitz, 385 A.2d
at 122 (holding that the statutes did not ―abrogate or supersede
the common law, but merely affirm[ed] and aid[ed] it‖).
¶39 Utah‘s territorial legislature was no different: It
formally vested the right to adjudicate name-change petitions
with Utah courts. See Of Change of Names, § 1128, 1884 Utah
Laws 354 (―Applications for change of names must be heard and
determined by the district courts.‖); see also id. § 1129; Of Change
of Names, §§ 3861–62, 1888 Utah Laws 422. The State legislature
did the same. See Names, §§ 1545–47, 1898 Utah Laws 394. But,
like in all other jurisdictions, these legislative actions were
―merely‖ to ―aid‖ the common-law right. In re Cruchelow, 926 P.2d
at 834. And our courts have continuously used common-law
17
IN RE SEX CHANGE
Opinion of the Court
standards to adjudicate this right. See In re Porter, 2001 UT 70,
¶¶ 7–11; In re Cruchelow, 926 P.2d at 834–35.18
__________________________________________________________
18 Before 1884, the territorial legislature had heard name-
change applications and approved them in the form of ―private
laws.‖ See, e.g., Change of Names Act Mar. 13, 1884, ch. LII, 1884
Utah Laws 136 (changing the names of six people); Name Change
Act of Feb. 20, 1878, 1878 Utah Laws 166 (changing the name of
Ephraim Powell to Ephraim Brettel Bolton); Name Change Act of
Jan. 30, 1872, ch. I, § 1, 1872 Utah Laws 1 (surname change of five
people). But the 1896 Constitution expressly took away any
authority that the territorial legislature might have had to change
names. UTAH CONST. art. VI, § 26(2) (1896) (―The Legislature is
prohibited from enacting any private or special laws . . .
[c]hanging the names of persons.‖).
This historical detail raises the question of whether before
1884, name-change petitions were of a legislative province rather
than a judicial one. The answer is no.
Aside from the sources we describe above that point to courts‘
common-law authority over name-change petitions, we find
support for this proposition in our territorial case law about
divorce decrees (another personal legal status change). Although
we have no case law from the period addressing name changes,
we do have case law about divorce decrees—another area
forbidden for legislative action in the 1896 Constitution. See UTAH
CONST. art. VI, § 26(1) (1896). Our territorial supreme court
explained that any legislative divorce decree was ―granted in the
exercise of judicial power; that they were recognized as judicial
subjects and not as legislative.‖ In re Est. of Higbee, 5 P. 693, 697
(Utah 1885). And our early case law suggests that the territorial
legislature had invaded the judicial department‘s functions on
other occasions. See, e.g., In re Handley’s Est., 49 P. 829, 831 (Utah
1897) (―If we were to affirm the validity of the law in question, we
would, in effect, say that the legislature may exercise judicial
powers.‖).
Building on Higbee, it is clear that article VI, section 26 of the
1896 Utah Constitution was meant to respect separation of powers
and was mandated by article V, section 1, which established three
separate departments of government and forbade any department
from ―exercis[ing] any functions appertaining to either of the
others.‖ UTAH CONST. art. V, § 1. Therefore, if anything can be
(continued . . .)
18
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C. We Have Jurisdiction to Adjudicate Sex-Change Petitions Because
They Are Changes to Legal Status or Identification
¶40 Having settled the question of this court‘s power to
adjudicate non-adversarial name-change petitions as changes to
legal status or identification, we turn to sex-change petitions. We
hold that sex-change petitions are likewise within the judiciary‘s
jurisdictional purview. Sex-change petitions are closely analogous
to name-change petitions because they are both changes to a
person‘s legal status or identification. See, e.g., In re Heilig, 816
A.2d 68, 82 (Md. 2003) (stating that actions to change incorrect
information on a person‘s birth certificate ―relate principally to
the legal status or identification of an individual‖). At birth, a
third party gives a person‘s name and designates their sex. But a
person experiencing gender dysphoria later in life may seek to
update their legal status or identification by petitioning for a
name or sex change. These changes are not just symbolic; they
help avoid the confusion that can result when people hold
themselves out as having one name or as being one sex but have
government identification that says differently.19
¶41 Other courts have observed the similarity between
name changes and sex changes and have deduced from it that the
procedures to effect such changes should also be similar. See, e.g.,
Radtke v. Misc. Drivers & Helpers Union Loc. No. 638 Health, Welfare,
Eye & Dental Fund, 867 F. Supp. 2d 1023, 1025–26, 1033 (D. Minn.
2012) (explaining that Wisconsin Statutes section 69.15(1) provides
that a birth-certificate amendment could be made by the state
registrar if a court issued an order providing for ―name change
with sex change,‖ and consequently mentioning that a Wisconsin
state court decision granted such order); In re McDannell, 2016 WL
482471, at *8 (Ct. Com. Pl. Del. Feb. 5, 2016) (holding that ―since
the Court of Common Pleas is vested with the authority to change
names, it is only logical that it is a court of competent jurisdiction
to consider the petition [for sex change]‖ when both changes are
learned from the legislative acts granting name changes, it is that
for a limited time our territorial legislature performed a judicial
function, which it expressly disclaimed in the decade leading up
to, and in, the Utah Constitution.
19 Indeed, condoning such confusion by refusing a valid
petition for a name or sex change would obviate the very purpose
of legal identification. See supra ¶ 35.
19
IN RE SEX CHANGE
Opinion of the Court
stated together in a regulation); In re Change of Birth Certificate, 22
N.E.3d 707, 708–09 (Ind. Ct. App. 2014) (explaining that the courts
have authority to adjudicate both changes because of general
statutory treatment of ―additions to or corrections in a certificate
of birth‖); In re Heilig, 816 A.2d at 82–83 (equating the two
changes). We do the same.
¶42 The dissent resists the analogy between name changes
and sex changes, see infra ¶¶ 181–83, suggesting that name change
proceedings are a unique ―carve-out.‖ Infra ¶ 183. But such is not
the nature of reasoning by analogy. Our analogy rests on the
function shared by name- and sex-change petitions—that is,
changes to legal status or identification. Buttressing our analogy is
that the statute positions name and sex change jointly, UTAH CODE
§ 26-2-11, and that other courts before us have found the analogy
compelling and relevant. And in another exchange with the
dissent‘s author, we explained that ―analogies only require
‗similar[ity] in some ways.‘ Requiring identical circumstances
obviates our ability to use analogies.‖ Ipsen v. Diamond Tree
Experts, Inc., 2020 UT 30, ¶ 19 n.13, 466 P.3d 190 (first alteration in
original) (emphasis added) (quoting Analogy, BLACK‘S LAW
DICTIONARY (11th ed. 2019)). By way of example, in the past we
held that ―parental termination proceedings‖ are ―‗analogous to
[a] court‘s termination of the marriage relationship between a
husband and wife.‘‖ D.A. v. State (In re W.A.), 2002 UT 127, ¶ 22,
63 P.3d 607 (alteration in original) (quoting In re Interest of M.L.K.,
768 P.2d 316, 319 (Kan. Ct. App. 1989)). We do not see these two
proceedings as identical. Instead, we base the analogy on the fact
that ―[i]n both custody and termination proceedings, the court
principally determines where and with whom a child should or
should not live.‖ In re Interest of M.L.K., 768 P.2d at 319. The same
is true in this case. The district court is called to approve a change
in a designation both in the name- and sex-change context.
Likewise, our search here is for analogies to situations that would
have been understood to be ―included in the constitutional grant
of judicial power to the courts,‖ In re Gestational Agreement, 2019
UT 40, ¶ 18, such that we can appropriately apply the existing
common law to those situations. We do not search for our
20
Cite as: 2021 UT 13Opinion of the Court
forebearers‘ specific understanding of the current situation.20 If we
had that, we would not need to use analogies.
¶43 In summary, deciding a petition for sex change, much
like one for a name change, involves adjudication of a change in
the legal status or identification of an individual. Our progenitors
intended for the adjudication of a person‘s legal status or
identification to be ―a substantive power . . . included in the
constitutional grant of judicial power to the court.‖ Id. And so, ―it
is appropriate for our courts‖ to adjudicate changes to the legal
status or identification of an individual—specifically, name- and
sex-change petitions—even if they lack adversariness.21 See id.__________________________________________________________
20 In further support of the analogy, we note that this court
spoke broadly in In re Gestational Agreement, recognizing that
―[c]ertain functions that our courts perform may be both entirely
non-adversarial and still appropriately fall within the ‗judicial
power.‘‖ 2019 UT 40, ¶ 13.
21 The dissent chides us for not inviting adversarial or amicus
briefing. Infra ¶¶ 198–200. But we ordered supplemental briefing
on several key constitutional questions. The order solicited the
views not only from the petitioners but also from the Attorney
General‘s Office on the questions presented. All supplied
supplemental briefing, and, notably, the views of the Attorney
General in its amicus brief were largely in line with the views
expressed by the court today. The dissent is advocating for yet
another round of briefing, which would significantly delay the
resolution of this three-year-old matter. That is something we are
unwilling to do.
But our disinclination to engage in another round of briefing
must not be misunderstood as a prioritizing of certain interests
over others. We do not outright reject the possibility that certain
sex-change petitions may involve adverse interests. Even though
lack of adversariness is not a bar to our jurisdiction in changes to
legal status or identification, adverse interests may certainly play
a role, though not in the way the dissent suggests: If a third
party‘s rights are affected by a court‘s order in a name- or sex-
change petition, the third party may have standing to file suit
with respect to the specific interest affected. See, e.g., Parents for
Priv. v. Dallas Sch. Dist. No. 2, 326 F. Supp. 3d 1075, 1081–82 (D. Or.
2018) (implicitly finding standing for cisgender students and their
parents who sued the school district to enjoin it from enforcing its
(continued . . .)
21
IN RE SEX CHANGE
Opinion of the Court
Therefore, we have jurisdiction to resolve this appeal, and we do
so now.
II. UTAH COURTS HAVE AUTHORITY
TO ADJUDICATE SEX-CHANGE PETITIONS
¶44 Having established our jurisdiction over this case, we
turn to whether Utah courts have authority to hear sex-change
petitions. By authority here we mean a framework that allows
Utah courts to adjudicate a particular matter—in this case, sex-
change petitions. Such framework can be statutory- or common-
law-based. This question is different than our jurisdictional
inquiry above in Part I, which focuses on whether a Utah court
has judicial power to hear a non-adversarial case, like a name- or
sex-change petition.
¶45 The district court here held that it lacked authority to
adjudicate the petitions and denied them. In its order denying Mr.
Childers-Gray‘s petition, it explained that there is ―no statute in
the State of Utah which sets forth either standards or procedures
under which the court may consider such‖ petition. The district
court concluded that this legislative silence meant that the
―standards or procedures‖ ―have simply not yet been
determined.‖ And in denying Ms. Rice‘s petition, the district court
stated that because of these reasons, ―it does not have the
authority to grant the request.‖ Appellants argue that district
courts do have the authority to adjudicate sex-change petitions.
We agree with appellants and conclude that the district court
erred.
¶46 The legislature has provided through statute that an
individual can petition for a sex change and that district courts
have jurisdiction to decide such a petition. The plain language of
the statute is ―the first step of statutory interpretation.‖ State v.
Malo, 2020 UT 42, ¶ 22, 469 P.3d 982 (quoting Garrard v. Gateway
policy allowing transgender students to use the ―restrooms, locker
rooms, and showers that match their gender identit[ies]‖ on a
number of claims (excluding a claim against federal defendants
for violation of the Administrative Procedure Act)). In other
words, if there comes a time when adverse interests ripen, the
judicial system will address those rights. We see no reason in
prohibiting our jurisdiction over sex-change petitions merely in
anticipation of currently unripe interests.
22
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Fin. Servs., Inc., 2009 UT 22, ¶ 11, 207 P.3d 1227). Here, the plain
language of Utah Code section 26-2-11 presupposes judicial
authority to adjudicate sex-change petitions. Utah Code section
26-2-11(1) states that ―[w]hen a person born in this state has a
name change or sex change approved by an order of a Utah
district court . . . a certified copy of the order may be filed with the
state registrar with an application form provided by the
registrar.‖ This language unambiguously assumes there is judicial
authority over the adjudication of name- and sex-change petitions.
It purports to grant the district courts no new powers. Thus, all
that Utah Code section 26-2-11(1) does is, as the Attorney General
eloquently put it in its amicus briefing, ―assume[] that courts have
preexisting jurisdiction to address name- and sex-change
petitions.‖ Our ―judicial humility . . . requires us to refrain from
diminishing‖ this assumption. Bostock v. Clayton Cnty., 140 S. Ct.
1731, 1753 (2020).
¶47 The statute aids courts in the exercise of their
jurisdiction to decide petitions for name and sex changes, and
though it does not provide a test to do so, this is not a bar to our
authority. That neither Utah Code section 26-2-11 nor any other
statute contains explicit standards or procedures for petitions for
sex change is of no moment because we find that ―the legislature
did not intend‖ such silence to obviate the assumption that
district courts have the authority to adjudicate sex-change
petitions. See Cox v. Laycock, 2015 UT 20, ¶ 41, 345 P.3d 689.
¶48 Approaching this gap-filling assignment, we ―seek the
intent of the legislature,‖ id. ¶ 42, because ―[i]t is the duty of this
court, according to its best knowledge and understanding, to
declare the law as it finds it, and determine the intent and purpose
thereof from the language used by the Legislature in expressing
such purpose and intention.‖ Eames v. Bd. of Comm’rs, 199 P. 970,
972 (Utah 1921). We do so by ―analyz[ing] the act in its entirety
and harmoniz[ing] its provisions in accordance with the
legislative intent and purpose.‖ Laycock, 2015 UT 20, ¶ 42 (quoting
Mariemont Corp. v. White City Water Improvement Dist., 958 P.2d
222, 225 (Utah 1998)).
¶49 The legislature‘s choice to address name and sex change
in tandem is a determinative feature of how district courts should
address sex-change petitions and of our gap-filling mission. Of
much importance in this decision is the original statutory text
from 1975: ―Whenever a person born in this state has their name
and/or sex change approved by an order of a court [of any State or
23
IN RE SEX CHANGE
Opinion of the Court
U.S. Territory,] . . . a certified copy of the court order may be filed
with the office of the state registrar upon an application form
provided by such registrar.‖ 1975 Utah Laws 222 (emphasis
added). The statute then went on to direct the Board of Health to
―establish fees to be received for preparation of . . . amended birth
certificates provided in [the original statutory provision].‖ Id.¶50 The legislature knowingly and purposefully combined
name and sex changes together. ―[W]hen a word or phrase is
transplanted from another legal source, whether the common law
or other legislation, it brings the old soil with it.‖ Maxfield v.
Herbert, 2012 UT 44, ¶ 31, 284 P.3d 647 (citation omitted) (internal
quotation marks omitted). When the legislature transplanted
―name change‖ from the common law, it statutorily planted both
―sex change‖ and ―name change‖ in the latter‘s ―old soil.‖
Accordingly, it meant for the same type of evaluation to control in
both changes. And so we fill the gap in standard for sex-change
adjudication with the common-law principles that control name-
change adjudication, with the appropriate adjustments, to ―give
effect to the legislature‘s intent in light of the purpose that the
statute was meant to achieve.‖ Monarrez v. Utah Dep't of Transp.,
2016 UT 10, ¶ 11, 368 P.3d 846 (quoting Biddle v. Wash. Terrace
City, 1999 UT 110, ¶ 14, 993 P.2d 875). In filling this statutory gap
with common-law procedure, we are merely fulfilling our judicial
duty to give effect to—not to usurp—the statute.22
__________________________________________________________
22 Our cases state that our common-law authority is not
dependent on or limited by a statutory provision unless it clearly
says so. See, e.g., Anderson v. Bell, 2010 UT 47, ¶ 16 n.5, 234 P.3d
1147 (explaining that not ―every instance that a statutory scheme
and the common law converge‖ will ―necessarily mean the
legislature has abolished the common law‖), superseded on other
grounds by statute, UTAH CODE § 20A-9-502; Williamson v. Farrell,
2019 UT App 123, ¶ 17, 447 P.3d 131 (holding that district courts
―retain common-law authority‖ to adjudicate declaratory
judgments ―even apart from their authority set out in‖ statute).
Indeed, ―we assume, absent a contrary indication, that the
legislature intends its statutes to work in tandem with our case
law, and we reconcile the common law with statutory law
whenever possible.‖ Hill v. Nakai (In re Est. of Hannifin), 2013 UT
46, ¶ 36, 311 P.3d 1016 (Durham, J., dissenting) (relying on Navajo
Nation v. State (In re Adoption of A.B.), 2010 UT 55, ¶ 33, 245 P.3d
(continued . . .)
24
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¶51 In the name-change context, the Utah Code works in
tandem with our common-law authority to adjudicate name
changes. See supra ¶¶ 36–39. Utah Code section 42-1-1 enumerates
the content of a name-change petition, and section 42-1-2 tells the
court when it may grant a name-change order. Its plain language
requires the district court to determine, among other things,
whether the petitioner has presented adequate proof that proper
cause exists for granting the name change. Id. But it is our case law
that imbues the term ―proper cause‖ with meaning, using
common-law precedents. Indeed, we have held that ―proper
cause‖ means that a petition is not ―sought for a wrongful or
fraudulent purpose.‖ In re Porter, 2001 UT 70, ¶ 8, 31 P.3d 519(quoting In re Cruchelow, 926 P.2d 833, 834 (Utah 1996)). This
standard is not mentioned in the statute, but it does not matter
because the statute, as this court explained in In re Porter, ―merely
provide[s] a codified process to aid [the] common law right to
adopt another name at will.‖ 2001 UT 70, ¶ 8; see also In re
Cruchelow, 926 P.2d at 834.
¶52 Similarly, we have injected meaning into statutory tests
based on common-law principles in other areas, such as marital
status and declaratory judgments. See Whyte v. Blair, 885 P.2d 791,
794–95 (Utah 1994) (holding that ―in determining whether a
relationship satisfies the requirements of [the common-law
marriage statute], numerous factors should be considered,‖ before
turning to explain these factors; as common-law principles, these
factors are distinct from the enumerated statutory elements and
indicate the kind of evidence that may serve to meet the statutory
elements); Williamson v. Farrell, 2019 UT App 123, ¶ 17, 447 P.3d
131 (mentioning that the ―four ‗threshold elements‘ for
711; Olseth v. Larson, 2007 UT 29, ¶ 39, 158 P.3d 352; Bishop v.
GenTec Inc., 2002 UT 36, ¶ 10, 48 P.3d 218). But, ―[i]n the absence
of applicable constitutional or statutory authority, Utah courts
employ the common law.‖ Spackman ex rel. Spackman v. Bd. of
Educ., 2000 UT 87, ¶ 20, 16 P.3d 533; see also UTAH CODE § 68-3-1
(adopting the common law of England); State v. Rowan, 2017 UT
88, ¶ 30, 416 P.3d 566 (Himonas, J., concurring) (explaining that if
this court repudiated the state exclusionary rule, there would be
―a void that would have to be filled by our courts‘ exercising their
common law authority unless and until the legislature chose to
intervene‖).
25
IN RE SEX CHANGE
Opinion of the Court
declaratory judgment actions‖ used by courts ―do not appear
anywhere in the Act‖).
¶53 We are not ―mak[ing] pure policy out of whole cloth.‖
Infra ¶ 255. The fact that a field of law, such as sex-change
petitions, is not governed by its own common law is no bar to our
authority. Our cited cases do not stand for the proposition that
when a term is ―transplanted‖ with its ―old soil‖ to a new legal
context, only that term may be planted in that ―soil.‖ Rather, our
only established limitation is that we do not engage in a common-
law analysis that conflicts with statutory guidance. See Rawcliff v.
Anciaux, 2017 UT 72, ¶ 14, 416 P.3d 362 (―[T]he common law
assists in defining the scope of the [fiduciary] duty, as long as the
duty itself is identified by the plain language of the statute and
our common law does not conflict with any statutory guidance on
the scope of that duty.‖) None of this disagrees with the dissent
that our case law ―presuppose[s] the existence of established
bodies of common law to be retained, or to avoid abolishing.‖ Infra
¶ 248. Of course, the common law must exist in order for a court
to engage with it, but such a proposition does not preclude our
ability to apply traditional bodies of common law to analogous
and statutorily related terms. Doing so is not ―mak[ing] policy out
of whole cloth‖ but rather is applying existing name-change
common law to the statutorily and precedentially related sex-
change field.23
__________________________________________________________
23 Because there is no common law specific only to sex-change
petitions, the dissent posits that the ―administrative concept‖ of
sex change applies. Infra ¶ 278. The dissent relies on New Park
Mining Co. v. State Tax Comm’n, 196 P.2d 485 (Utah 1948), and Fed.
Deposit Ins. Corp. v. Phila. Gear Corp., 476 U.S. 426 (1986), to
support its theory that ―[w]here our legislature uses terms that
have a settled ‗administrative interpretation‘ in a particular field,
that interpretation is understood to be carried forward in the
statute.‖ Infra ¶ 277. But the Office of Vital Records and Statistics
has never made such an interpretation. Further, the Office is not
tasked with making any decisions regarding sex designations;
rather, it responds without discretion to court orders pursuant to
Utah Code section 26-2-11(2). There is no room for any
administrative interpretation under this statutory regime. Further,
sex is not designated in the first instance by the Office; rather, sex
is designated (primarily) by medical professionals who
(continued . . .)
26
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¶54 Neither are we running afoul of the non-delegation
doctrine. As discussed in detail above, supra ¶¶ 31–39, the
legislature has recognized the jurisdiction of the courts to
adjudicate non-adversarial changes to legal status or
identification. We are not ―suggesting that there is no legislative
standard that governs‖ sex-change petitions, infra ¶ 306, simply
because we may properly apply the common law associated with
name-change petitions. The legislature may choose to enact a
substantive standard for sex changes at any time, but so far it has
not done so. 24 Section 26-2-11 is a statute enacted in aid of the
court‘s common law authority. And should the legislature find
issue with our decision today, it has the authority to override the
common law with statute. Thus, we are not overstepping our
constitutionally-delegated powers but rather acting with the
authority the legislature has passed to the courts under section 26-
2-11. We find additional support for our conclusion in the manner
that other jurisdictions, including those with similar statutes, have
addressed their authority to adjudicate sex-change petitions.
¶55 The Maryland Court of Appeals (Maryland‘s highest
court) addressed a statute that ordered the secretary of health to
amend a birth certificate ―[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 . . . .‖ In re Heilig,
816 A.2d 68, 82 (Md. 2003) (alteration in original) (quoting MD.
CODE ANN., Health – General, § 4-214(b)(5) (West 2002) (amended
2015)).25 The Court explained that ―the statute, along with other
statutes in the subtitle of which it is a part, evidences a clear
presumably are not versed in the nuances of administrative
definitions in the law.
24 The legislature unquestionably knows how to place
substantive restrictions on our exercise of common law power.
For example, with respect to name-change petitions, the
legislature has provided in Utah Code section 77-41-105(8)(a) that
a court may only grant a name change of someone on the sex and
kidnap offender registry ―if the name change is not contrary to the
interests of the public.‖ See also infra ¶ 80.
25In 2015, Maryland opted to allow persons to change their sex
designation on their birth certificate through an administrative
process, without a court order. See 2015 Md. Laws 2538 (codified
at MD. CODE ANN., Health – General, § 4-214(b)(5) (West 2021)).
27
IN RE SEX CHANGE
Opinion of the Court
recognition by the General Assembly that a person‘s gender can
be changed and that there are courts with jurisdiction to consider
and determine whether that has occurred.‖ Id. at 82.
¶56 The Indiana court of appeals dealt with a statute vaguer
than section 26-2-11 in In re Change of Birth Certificate, 22 N.E.3d
707, 709 (Ind. Ct. App. 2014). The Indiana statute allowed ―[t]he
state department [to] make additions to or corrections in a
certificate of birth on receipt of adequate documentary evidence.‖
Id. at 708 (quoting IND. CODE § 16-37-2-10(b)). The court found that
this language ―provides general authority for the amendment of
birth certificates, without any express limitation (in the statute or
elsewhere) regarding gender amendments.‖ Id. at 709. The court
then relied on that statute, ―as well as the inherent equity power
of a court of general jurisdiction,‖ to hold that trial courts have
―authority to grant‖ sex-change petitions. Id.; see also In re
Clemmer, 135 N.E.3d 168, 2019 WL 5382509, at *1 (Ind. Ct. App.
Oct. 22, 2019) (granting a name- and sex-change petition).
¶57 We recognize that not all courts have found authority in
such generally articulated statutes as did the Maryland and
Indiana courts. But we find those courts‘ decisions
distinguishable. In In re McReynolds, the Texas Court of Appeals
interpreted a statute that provided that to prove their identity and
age when applying for a marriage license, a person may present
―a court order relating to the applicant‘s name change or sex
change.‖ 502 S.W.3d 884, 887 (Tex. Ct. App. 2016) (quoting TEX.
FAM. CODE § 2.005(b)(8)). The Texas court of appeals opined that
because the legislature enacted procedures for name-change
petitions but not for sex-change petitions, it did not ―intend[] to
create a new justiciable right of action for a sex change order‖ and
that the legislature ―would not have left it to the judicial branch to
define the right‘s substantive elements and procedures.‖ Id. To
support its outcome, the court then revisited and distinguished
several prior Texas decisions that presupposed such authority. Id.
at 889–90. But, as the court of appeals itself explained, its decision
did not foreclose sex changes in the state. Id. at 885 n.2. Unlike in
Utah, Texas law does not seem to require a court order to amend a
birth certificate. Rather, Texas Health and Safety Code section
191.028(b) provides for an administrative procedure to amend a
birth certificate. The statute prescribes that ―[a]n 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.‖
TEX. HEALTH & SAFETY CODE ANN. § 191.028 (West 2019); see also
28
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McReynolds, 502 S.W.3d at 885 n.2. Additionally, the decision
ignores the endurance of the common-law right of a person to
change their name and, consequently, their legal status, even
when there is no legislation on the matter. Therefore, the basis for
adjudicating sex-change petitions is different in Utah.
¶58 At least one Ohio court has also held that courts may
not adjudicate sex-change petitions. See In re Ladrach, 513 N.E.2d
828, 832 (Stark Cnty. Ohio Prob. Ct. 1987). But Ohio law is
manifestly different than Utah law. Indeed, an Ohio statute grants
the executive the authority to amend birth certificates for error
correction. See OHIO REV. CODE ANN. § 3705.22 (West 2021)
(providing that a birth certificate shall be amended once the
director of health establishes the alleged facts requiring the
amendment). Only if one seeks to amend the same data a second
time is a court order required. See id. And so, in Ohio, a person
does not need a court order to change their birth certificate (the
first time around), and the case law from Ohio is immaterial. As
we explain below, Ohio‘s executive, however, does not allow such
change. See infra ¶ 59 n.26.
¶59 Bottom line, we have common-law authority to
adjudicate sex-change petitions because they are petitions to
change one‘s legal status or identification, just like name-change
petitions. And we have the authority to adjudicate name-change
petitions. This conclusion is supported by the legislature‘s
assumption in Utah Code section 26-2-11 and is further reinforced
by decisions in other jurisdictions. We accordingly hold that Utah
district courts have authority to adjudicate sex-change petitions.26
__________________________________________________________
26 We also note that, to our knowledge, only four states in the
entire union—Idaho, Kansas, Ohio, and Tennessee—do not
permit transgender individuals to change their sex designation.
They do so through specific prohibitory or limiting statutes. See
F.V. v. Barron, 286 F. Supp. 3d 1131, 1136 n.4 (D. Idaho 2018); Kyle
C. Velte, Mitigating the “LGBT Disconnect”: Title IX’s Protection of
Transgender Students, Birth Certificate Correction Statutes, and the
Transformative Potential of Connecting the Two, 27 AM. U. J. GENDER
SOC. POL‘Y & L. 193, 213 (2019) (―Tennessee bars transgender
people from correcting their birth certificate. The Kansas Division
of Vital Statistics takes the position that it lacks the authority to
correct birth certificates for gender transition. In Ohio, although
state law provides that birth certificates may be amended with a
(continued . . .)
29
IN RE SEX CHANGE
Opinion of the Court
III. THE POLITICAL QUESTION DOCTRINE
AND ARTICLE V OF THE UTAH CONSTITUTION
¶60 Having concluded that district courts have the
jurisdiction and authority to adjudicate sex-change petitions, we
move on to determining whether their doing so violates the
political question doctrine or article V, section 1 of the Utah
Constitution.
¶61 First, we must ask whether adjudicating sex-change
petitions is a nonjusticiable political question. Second, we ask
whether adjudicating sex-change petitions is unconstitutional
under the ―Separation of Powers‖ clause of the Utah Constitution.
See UTAH CONST. art. V, § 1. The district court answered both
questions in the affirmative, finding that there is ―no statute in the
State of Utah which sets forth either standards or procedures
under which the court may consider such‖ petition, and that
setting standards or procedures would be a legislative task and
not a judicial one.
¶62 The focus of both the district court and our
supplemental briefing question was whether the adjudication of
sex-change petitions is a political question—that is, whether it is
an ―interference in matters wholly within the control and
discretion of other branches of government,‖ Skokos v. Corradini,
900 P.2d 539, 541 (Utah Ct. App. 1995) (citing e.g., Baker v. Carr,
369 U.S. 186 (1962))—given the ―absence of‖ ―procedural and
substantive criteria for granting of a sex-change order.‖ Relatedly,
we asked the parties to brief whether, when district courts
adjudicate sex-change petitions, they ―exercise . . . functions
appertaining to either‖ the legislative or executive departments of
government, thus violating the separation-of-powers requirement
in article V, section 1 of the Utah Constitution. Appellants, of
course, argued that there is no constitutional violation. And the
Attorney General, representing the State, declined to answer the
question, citing our presumption of constitutional validity ―based
on fundamental separation-of-powers precepts.‖ (Internal
quotation marks omitted.)
court order, courts in that state refuse to issue such orders.‖
(citations omitted)). But this last observation about Ohio seems
only partially correct since, as we explain above, a court order is
needed there only to amend a birth certificate a second time
around. See supra ¶ 58.
30
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¶63 Ultimately, our answer to both queries is a resounding
no.
¶64 Article V, section 1 of the Utah Constitution and the
political question doctrine both focus on the proper roles of each
branch of government and aim to curtail interference of one
branch in matters controlled by the others. See Skokos, 900 P.2d at
541. Indeed, we have referred to article V, section 1 as the
―Separation of Powers Clause of the Utah Constitution.‖ Friends of
Great Salt Lake v. Utah Dep’t of Nat. Res., 2017 UT 15, ¶ 16, 393 P.3d
291. Article V ―regulates and guides the apportionment of
authority and function between the branches of government.‖
Vega v. Jordan Valley Med. Ctr., LP, 2019 UT 35, ¶ 15, 449 P.3d 31.
Similarly, the political question doctrine is ―a tool for maintenance
of governmental order,‖ Baker, 369 U.S. at 215, that is ―rooted in
the United States Constitution‘s separation-of-powers premise.‖
Skokos, 900 P.2d at 541. It ―prevents judicial interference in matters
wholly within the control and discretion of other branches of
government.‖ Id. The United States Supreme Court has identified
a political question issue, in part, as involving
a textually demonstrable constitutional commitment
of the issue to a coordinate political department; or a
lack of judicially discoverable and manageable
standards for resolving it; or the impossibility of
deciding without an initial policy determination of a
kind clearly for nonjudicial discretion; or the
impossibility of a court‘s undertaking independent
resolution without expressing lack of the respect due
coordinate branches of government . . . .
Baker, 369 U.S. at 217.
¶65 Utah courts‘ adjudication of sex-change petitions
neither involves a nonjusticiable political question nor violates
article V, section 1 of the Utah Constitution. Our constitution
grants the district courts, as general jurisdiction courts, the
authority to adjudicate matters that affect a citizen‘s legal rights.
See UTAH CONST. art. VIII, §§ 1, 5.
¶66 In adjudicating sex-change petitions—requests for a
change to one‘s legal status or identification—district courts
exercise one of the basic tenets of their judicial role: their
common-law authority. That is because, as we explain above,
supra ¶ 50, the legislature intertwined sex-change petitions with
name-change petitions and planted the ―sex-change‖ adjudication
firmly in the name-change common-law adjudication‘s ―old soil.‖
31
IN RE SEX CHANGE
Opinion of the Court
See Maxfield v. Herbert, 2012 UT 44, ¶ 31, 284 P.3d 647 (quoting
Felix Frankfurter, Some Reflections on the Reading of Statutes, 47
COLUM. L. REV. 527, 537 (1947)). The common law is ―a subject
lodged firmly within the court‘s sphere.‖ Yazd v. Woodside Homes
Corp., 2006 UT 47, ¶ 20, 143 P.3d 283. ―It is the responsibility of the
judiciary to examine those causes of action which it has created, to
alter them when appropriate, and to abolish them when
necessary. The basic evolutionary provisions of the common law
have not been repealed.‖ Norton v. Macfarlane, 818 P.2d 8, 17 (Utah
1991).27 Indeed, ―common-law pronouncements . . . play a role in
governing a district court‘s handling‖ of common-law matters,
Williamson v. Farrell, 2019 UT App 123, ¶ 17, 447 P.3d 131, such as
personal legal status changes.
¶67 And yes, often, our judicial ―characteristic roles . . . may
have significant political overtones.‖ Japan Whaling Ass’n v. Am.
Cetacean Soc’y, 478 U.S. 221, 230 (1986). But that does not mean we
or our district courts can simply ―shirk‖ those roles by
announcing them nonjusticiable. Id. History provides us with a
relevant example: In 1889, our territorial supreme court
adjudicated a naturalization petition of a ―native of the Hawaiian
Islands.‖ In re Kanaka Nian, 21 P. 993, 993 (Utah 1889). In that
procedure—which, similar to the one we adjudicate today, asked
for a change of legal status—our predecessor court did not shy
away from adjudicating the question whether ―the native
inhabitants of the Hawaiian islands belong to the white or African
race,‖ and engaged in the science of the time on the matter. Id.While we do not endorse that analysis, we see it as an example of
our long-standing commitment to effectuate the judicial task laid
upon us by the legislature, despite the sensitivity of the issues
involved.
¶68 The money line here is this: The exercise of common-
law authority, when not abrogated by statute, neither runs afoul
of the political question doctrine nor violates the separation-of-
__________________________________________________________
27 But the ―[j]udicial power to alter, abolish, and create causes
of action does not, of course, restrict the right of the Legislature to
have the last word with respect to [the] law, at least insofar as the
Legislature does not transgress constitutional limitations on its
powers.‖ Norton, 818 P.2d at 17; see also Cruz v. Wright, 765 P.2d
869, 871 (Utah 1988) (holding that the legislature can ―alter[] or
even abolish[] certain rights which existed at common law‖).
32
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powers requirements of article V, section 1. A contrary conclusion
would mean a doomsday for our historic judicial function. In the
background looms our presumption of constitutionality, which
reinforces our holding here. We ―apply a presumption of validity
[to a challenged statute] so long as there is a reasonable basis
upon which both provisions of the statute and the mandate of the
constitution may be reconciled.‖ Richards v. Cox, 2019 UT 57, ¶ 12,
450 P.3d 1074 (alteration in original) (citation omitted). A statute
violates the constitution only when it ―clearly violates a
constitutional provision.‖ Vega, 2019 UT 35, ¶ 12 (emphasis
added). Accordingly, ―a party seeking to challenge the
constitutionality of a law‖ faces a heavy burden and must
―provide a sufficient basis‖ for such challenge, and not merely ―a
‗murky‘ basis for setting it aside.‖ South Salt Lake City v. Maese,
2019 UT 58, ¶ 96, 450 P.3d 1092 (Lee, A.C.J., concurring). In this
case, no party—other than the district court, sua sponte—has
argued that Utah Code section 26-2-11 is unconstitutional, let
alone met their burden to set it aside. And, with all due respect to
the district court, its conclusory decision did not do that either.
Regardless, pursuant to rule 25A(b) of the Rules of Appellate
Procedure—which grants the Attorney General permissive
intervention ―[a]ny time a party challenges the constitutionality of
a statute‖—this court called for the views of the Attorney General
in its August 23, 2019 supplemental briefing order. As noted
above, the Attorney General declined to answer whether the
statute was unconstitutional and instead cited the presumption of
constitutionality existing when no parties have actually made
such a challenge. See supra ¶ 62.
¶69 The dissent disagrees. We discern three arguments it
makes to support its contrary position: 28 (1) sex-change petitions
are akin to ―issuing or amending a government record, license, or
permit,‖ see infra ¶ 154, which are executive functions; (2)
__________________________________________________________
28 The dissent does not explicitly challenge the
constitutionality of section 26-2-11, yet its arguments are rooted in
our constitutional principles of separation of powers and the
scope of ―judicial power.‖ Perhaps the dissent knows that its
propositions, properly framed, would not withstand our
presumption of constitutionality. See supra ¶ 68. Regardless,
because the effect of accepting these arguments is to conclude that
section 26-2-11 is unconstitutional, we address them as such.
33
IN RE SEX CHANGE
Opinion of the Court
adjudicating sex-change petitions means we undo all limits on our
judicial role, infra ¶¶ 188–90; and (3) this court runs afoul of the
nondelegation doctrine by engaging in ―an act of judicial
legislation.‖ See infra ¶ 305.
¶70 We can easily dispose of these arguments. All are
premised on assumptions we rebutted above. As for the first
argument, the dissent casts approvals of ―sex change‖ as
―licensing‖ because the ―law opts for that form of regulation.‖
Infra ¶ 154 n.73 (quoting Carter v. Lehi City, 2012 UT 2, ¶ 47, 269
P.3d 141). Consequently, it argues that we are without power to
address such issues because we are ―foreclosed from exercising
executive power.‖ Infra ¶ 154. But we are not seeking to order
changes to an individual‘s permit or license. We are operating
under the substantive grant of power to adjudicate changes to
legal status or identification and filling a gap which the legislature
has implicitly asked us to address. See supra ¶¶ 47–48. And
nowhere do we find evidence that the ―law opts for that form of
regulation‖ in changes to an individual‘s legal status or
identification. The dissent offers no explanation for its collapsing
of the terms ―legal status or identification‖ and ―issu[ing] or
amend[ing] any government record, license, or permit,‖ see infra
¶ 189, but we find that areas of the law traditionally regulated by
the executive‘s permitting and licensing function are
distinguishable from matters involving legal status or
identification.29 Further, the dissent‘s argument is based on its
__________________________________________________________
29 The analysis in Carter, cited by the dissent at infra ¶ 154 n.73,
directs readers to Utah Code section 58-1-103 (2012), which
created the Utah Division of Occupational and Professional
Licensing within the executive‘s Department of Commerce. 2012
UT 2, ¶ 47 n.35. This area of the law does not contemplate changes
to an individual‘s legal status or identification but rather regulates
occupations and professions in order to ―protect[] the health and
safety of the public.‖ See UTAH CODE § 58-1-301(5). Other areas of
the law that ―opt[] for that form of regulation‖ include driver
licenses and concealed firearm permits, both of which are
regulated by the Utah Department of Public Safety, presumably
for public safety purposes. See UTAH CODE §§ 53-3-103, 53-5-703.
And the laws concerning construction and fire codes, see id.
§§ 15A-1-201 to 210; id. §§ 15A-1-401 to 403, also ―opt[] for‖
permitting and licensing regulation in order to ―safeguard[] life
(continued . . .)
34
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assertion ―that the statute was plowing no new ground, and thus
that the contemplated order for an amendment to a birth
certificate is to be based on the same type of sex designation made
at birth.‖ Infra ¶ 141. But that assumption, as we explain below,
infra ¶¶ 75–81, is wrong. Without such standard, the theory the
dissent proffers is irrelevant.
¶71 The second argument is likewise premised on faulty
assumptions. It overlooks the historical substantive power of the
courts to adjudicate name changes and thus, by analogy, sex
changes. Infra ¶ 189. And further, our decision today bears little
threat of opening the jurisdictional floodgate to all non-
adversarial matters because it is inherently limited by the
language of the statute before us and by the analogy we draw
between name and sex changes. See supra ¶¶ 40–43.
¶72 The third argument also holds no water. The dissent
suggests that this court runs afoul of the nondelegation doctrine
by engaging in ―an act of judicial legislation‖ by seeking to fill any
gap left open by the legislature. Infra ¶ 305. Such is not the case
here. As we explained above, supra ¶¶ 46–47, Utah Code section
26-2-11 is a statute enacted specifically in aid of our common-law
authority, and the ―core, governing principle‖ in adjudicating sex-
change petitions has already been identified through the common
law of name-change petitions. Thus, because name-change and
sex-change petitions are analogous in function, we are not
overstepping our judicial role when we apply the common law of
name-change petitions as the ―core governing principle‖ in
adjudicating sex-change petitions.
¶73 We thus conclude that Utah Code section 26-2-11 and
the district courts‘ adjudication of sex-change petitions violate
neither the political question doctrine nor any separation-of-
powers principles. Hence, Utah courts do not violate the Utah
Constitution when adjudicating sex-change petitions.
and property.‖ Id. § 15A-1-403(1)(a)(ii). Certainly, legal status or
identification matters may include public safety functions, but
while licensing and permitting appear to be based primarily on
public safety purposes, such is not the primary function of legal
status or identification. See supra ¶ 35.
35
IN RE SEX CHANGE
Opinion of the Court
IV. THE TEST FOR SEX-CHANGE PETITIONS
¶74 Although Utah courts have the authority to adjudicate
sex-change petitions, we have not, until now, had the opportunity
to review a district court‘s decision to grant or deny one. That
means that we have never articulated a test by which Utah courts
should decide sex-change petitions. We take that step today. To
do so, we borrow from our common-law jurisprudence about
name-change petitions and adapt it to fit sex-change petitions. We
conclude that, as a general rule, sex-change petitions should be
granted if (1) they are not ―sought for a wrongful or fraudulent
purpose,‖ In re Porter, 2001 UT 70, ¶ 8, 31 P.3d 519 (citation
omitted), and (2) they are supported by objective evidence of a sex
change, which includes, at minimum, evidence of appropriate
clinical care or treatment for gender transitioning or change by a
licensed medical professional. But before we detail how we reach
this test and explain it, we respond to the dissent‘s suggested test.
A. Sex-Change Petitions Are Not Limited to Mistake or Sex-
Reassignment Surgery
¶75 In refuting the dissent‘s proffered test, we first explain
how the dissent erroneously reads a substantive standard for ―sex
change‖ into a simple, non-substantive statute. Then, for the sake
of completeness, we show how its proposed standard is
unworkable and cannot reflect the intent of the legislature.
¶76 The dissent takes a wrong turn at the outset of its
analytical expedition. It reads into the language of the statute a
substantive standard for approving a sex change.30 Focusing on
the word ―sex,‖ it posits that ―[t]he term [‗sex‘], in this context, is
plain‖ and ―sex‖ in this context ―refer[s] to biological sex.‖ Infra
__________________________________________________________
30 The dissent initially concedes that ―[t]he statute itself does
not expressly articulate a ‗substantive standard,‘‖ infra ¶ 141,
presumably to set up its jurisdictional argument that we are
engaged in a ―novel‖ ―‗gap-filling‘ role,‖ infra ¶ 245, by simply
giving effect to the statute and voice to the common law.
Nonetheless, it implies throughout its argument on the merits that
―sex‖—rather, ―biological sex‖—acts as a standard intended by
the legislature. See, e.g., infra ¶¶ 204-06. Indeed, the statement that
we are attempting to ―establish a new concept of gender identity,‖
infra ¶ 200 (emphasis added), implies that the ―new concept‖
replaces an existing one.
36
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¶ 217. From there, the dissent reasons that a person can only
change their ―biological sex,‖ as indicated on the birth certificate,
by showing that their initial sex designation was essentially a
mistake or, possibly, that they have undergone sex-reassignment
surgery. Infra ¶ 223.
¶77 As we have repeatedly noted, the statute does not
contain an express substantive standard; rather, it functions as an
aid to the court in the exercise of its common-law authority.31
Utah Code section 26-2-11(1) provides that when a person ―has a
name change or sex change approved by an order of a Utah
district court or a court of competent jurisdiction of another state
or a province of Canada,‖ that person may file with the state
registrar a certified copy of the order, along with a standard
application form. Upon receipt of a complete application, order,
and fee, the registrar ―shall . . . register it and note the fact of the
amendment‖ on the original birth certificate. UTAH CODE § 26-2-
11(2)(a). The amendment then ―become[s] a part of the original
certificate.‖ Id. § 26-2-11(2)(b). So, the statute acknowledges that
Utah district courts have authority to approve a name change or
sex change. And it tells the state registrar what it must do with
such an order. That is literally all the statute says and does.
¶78 Nothing in this text suggests a legislative intent that a
court approve a sex change only if the petitioner proves their
initial sex designation was a mistake or they have completed sex-
reassignment surgery. In fact, the plain language demonstrates a
legislative intent to omit such a standard. If a petitioner submits a
complete application, the state registrar ―shall‖ register a sex
change ―approved by an order of a Utah district court or a court of
competent jurisdiction of another state or a province of Canada.‖
Clearly, the legislature cannot control the standard for ―sex‖ or
―sex change‖ applied by any other jurisdiction. 32 Yet the state
__________________________________________________________
31 And as we have repeatedly pointed out, supra ¶¶ 47, 50-51,
54, the legislature, in deciding that a person may seek to change
the sex designation on their birth certificate, intended to omit a
substantive standard from the statute, and in doing so expected
the courts to fill the gap. Otherwise, we would be left with a
meaningless statute.
32 Canadian courts have similarly been ordering changes to
birth certificates to reflect an individual‘s gender identity and, in
the process, have rejected the narrow view of ―sex change‖
(continued . . .)
37
IN RE SEX CHANGE
Opinion of the Court
registrar must respect it.33 Consequently, and with the greatest of
respect to the dissent, there is nothing in Utah Code section 26-2-
11 that suggests that the legislature intended Utah courts to apply
a very narrow standard for ―sex change‖ while simultaneously
offered by the dissent. See F.C. v. Alberta (Vital Statistics), 2014
ABQB 237, paras. 4–7, 65 (Can.); XY v. Ontario (Minister of
Government and Consumer Services), 2012 HRTO 726, [2012]
O.H.R.T.D. No. 715 (Can. Ont. Human Rights Trib.).
33 The dissent responds that ―Utah law is the substantive law
that governs the content of Utah vital records‖ when foreign
courts adjudicate a sex change to a Utah birth certificate because
―[n]othing in the statute . . . indicates that the legislature was
conferring power on the courts of other states to impose their
substantive law‖ on the content of a Utah birth certificate. Infra
¶ 288. This interpretation is erroneous for at least three reasons.
First, the statute‘s plain language unambiguously extends respect
and reciprocity to court orders of sister jurisdictions. Otherwise, if
the dissent were correct, a foreign court would be required to
apply the dissent‘s non-articulated standard for sex change
(which the dissent argues it could not do anyway, since it claims
the issue is non-justiciable). Second, the dissent does not explain
how the state registrar would know whether to accept the foreign
court order. The statute provides the state registrar with no
discretion to evaluate a foreign court‘s application of Utah law.
And third, the legislature knew how to specify elsewhere within
the Vital Statistics Act when the state registrar should limit its
reciprocity to Utah law. See UTAH CODE § 26-2-28(1) (requiring the
registration of any person ―adopted under the laws of this state‖);
id. § 26-2-17(5) (providing for the immediate transportation
outside of the death registration district of any dead body or part
thereof when it ―has been donated under the Revised Uniform
Anatomical Gift Act or similar laws of another state‖). It did not
do so in section 26-2-11.
In short, we point to the concurrence‘s observation that ―the
legislature was not so concerned with setting a substantive
standard by its use of the terms ‗name change‘ and ‗sex change‘ as
it was with identifying the kinds of birth certificate amendments
subject to the statute.‖ Infra ¶ 123.
38
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extending the broadest possible reciprocity to foreign
jurisdictions.34
¶79 The original statutory text further solidifies our view
that the legislature intentionally omitted from the statute a
standard for ―sex change.‖ That text provided that ―[w]henever a
person born in this state has their name and/or sex change
approved by an order of a court [of any State or U.S. Territory], a
certified copy of the court order may be filed with the office of the
state registrar upon an application form provided by such
registrar.‖35 1975 Utah Laws 222 (emphasis added). The statute
then went on to direct the board of health to ―establish fees to be
received for preparation of . . . amended birth certificates
provided in section 26-15-16.5, [the original statutory provision].‖
Id. Combining name change and sex change together like this
(―name and/or sex change‖) and the reference to amended birth
certificates reinforce the idea that ―sex‖ refers to the designation
on the birth certificate; it does not speak to the standard
__________________________________________________________
34 The dissent warns that our decision here is a ―big deal‖ with
―sweeping effects on our society.‖ Infra ¶ 236. We disagree—Utah
courts have been deciding this issue for many years without our
guidance. See infra ¶ 103 n.53. In fact, our decision today gives
more certainty to a process that, thus far, has not upended the
fabric of society. All we can say for sure is that this issue is
certainly a ―big deal‖ for Mr. Childers-Gray and Ms. Rice. Their
lives have been put on hold simply by chance—the district court
in which they submitted their petitions just happened to
misinterpret the statute, denying the petitioners a path to take
advantage of section 26-2-11 in the way petitioners in other
districts have been able to do. Today we put an end to their wait.
35 As we explain above, supra ¶ 2 n.3, the current statute has
undergone some minor linguistic changes. Specifically relevant
here, the current statute reads: ―[w]hen a person born in this state
has a name change or sex change approved . . . .‖ UTAH CODE § 26-2-
11 (emphasis added). No party has argued that such changes
matter to our interpretation of the statute. However, the dissent
engages with the meanings of ―sex‖ and a ―‗change‘ to birth
certificate ‗sex‘ designation‖ in 1975, infra ¶¶ 213-19, and we find
the original legislative use of the ―and/or‖ phrase particularly
illustrative of the incongruity of the dissent‘s position, and we
highlight it accordingly.
39
IN RE SEX CHANGE
Opinion of the Court
underlying whether the court should or should not grant the
order.
¶80 And finally, the legislature has explicitly shown that it
can and does articulate standards in the name- and sex-change
context, even if it did not do so here. In Utah Code section 77-41-
105(8), the legislature provided a clear substantive limitation for
registered sex and kidnapping offenders petitioning to change
their names. This limitation prohibits a Utah court from granting a
name change unless it finds that ―the name change is not contrary
to the interests of the public.‖ UTAH CODE § 77-41-105(8)(a).
¶81 In sum, the plain language of the statute compels the
conclusion that the legislature deliberately omitted from the
statute any standard for approving a sex change. In so doing, it
expected the judiciary to exercise its common-law authority to
create such a standard. And we do so today, considering all
indicia of legislative intent and persuasive authority that we can
muster. See infra Parts IV(B) & (C).
¶82 Further, the dissent‘s fundamental misreading of the
statutory language leads it to engage with the term ―sex‖ in a
manner that not only does not fit the statutory language, but
plainly ignores it. See State v. Rushton, 2017 UT 21, ¶ 11, 395 P.3d
92 (―[W]ords or phrases may appear unambiguous when read in
isolation, but become ambiguous when read in context. This is
why ‗we read the plain language of the statute as a whole, and
interpret its provisions in harmony with other statutes in the same
chapter and related chapters[,] . . . avoid[ing] any interpretation
which renders parts or words in a statute inoperative or
superfluous in order to give effect to every word in the statute.‘‖
(alterations in original) (citation omitted)).
¶83 And even if the dissent were correct in its reading, it
would not satisfactorily answer the question we address here
because we do not agree with the dissent‘s understanding of the
term ―sex.‖ Even if the legislature intended for the phrase ―sex‖ to
be a standard (and it did not), the dissent‘s definition of biological
sex does not necessarily exclude sex that has been changed in
conformance with an individual‘s gender transition.
¶84 It is remarkable that a simple, three-letter word can
inspire such widespread, passionate debate. We are not tasked
with charting the course for the evolution of language itself, but
we are obligated to interpret a word or term as it was intended by
the legislature at the time of drafting. Here, that does not
necessarily mean determining ―whether the term ‗sex‘ as used in a
40
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1975 statute governing the terms of a birth certificate can be
understood as a reference to the concept of ‗gender identity‘ that
has evolved in recent years.‖ Infra ¶ 213. The inquiry is rather
much simpler and does not require a hindsight view of the
evolving concept of gender identity—we should be asking,
merely, what the legislature meant by ―sex‖ in the birth certificate
context.
¶85 No matter which side of the ―culture war,‖ infra ¶ 212,
one occupies, it appears generally understood that, in most
instances, ―sex‖ as designated at birth is based on a medical
observation of genitalia and physical characteristics. See supra ¶ 4
n.5. But even if we were to concede that ―sex‖ means ―biological
sex,‖ the concept very likely extends beyond what a cursory
physical examination of an infant can reveal. We allude to the
dissent‘s presentation of dictionary definitions of ―sex‖ existing at
the time of Utah Code section 26-2-11‘s enactment, see infra ¶ 214
n.100, in conceding that ―sex‖ was primarily defined in terms of
―structural and functional differences‖ between males and
females (including reproductive functions).
¶86 However, we are not convinced that a standard of
―biological sex‖ would preclude the adopted sex of transgender
individuals. It is worth noting that while the dictionary
definitions of ―sex‖ provided by the dissent have some focus on
physiological differences between males and females, many
definitions focus also on ―psychological,‖ ―behavior[al]‖, or
―character‖ differences, infra ¶ 214 n.100, which are not
necessarily tied exclusively to physiology or observable
characteristics at birth. At the very least, ―biological sex‖ itself is
ambiguous and may mean more than the sex designated by
examination at birth.
¶87 The dissent‘s conception of ―biological sex‖ in the birth
certificate context arises from its understanding that, typically, ―a
person‘s sex is determined at birth by an anatomical examination
by the birth attendant.‖ Infra ¶ 216 n.102 (quoting In re Ladrach,
513 N.E.2d 828, 832 (Stark Cnty. Ohio Prob. Ct. 1987)).36 But the
__________________________________________________________
36Of course, as the dissent points out, some infants are born
with ambiguous genitalia, which require more thorough
examinations for sex designation, perhaps beyond external
physical characteristics. See infra ¶ 216 n.102. However, such
occurrences requiring examination by medical specialists are rare.
(continued . . .)
41
IN RE SEX CHANGE
Opinion of the Court
―anatomical examination‖ done at birth contemplates only the
observable genitalia, which is limited at the neonatal stage. Of
course, secondary sex characteristics, such as those that may be
altered by hormone therapy, do not begin to develop until later in
life. And certainly, ―a baby has no capacity for expression of
gender identity.‖ Infra ¶ 216. So even if we look only to the
observable physiological indicators of sex to guide us, many
transgender individuals would still lie within the dissent‘s
definition, given that they may later undergo sex-reassignment
surgery, hormone therapy, or other treatment to bring their
physical appearances into alignment with their gender
identities.37 See, e.g., Saru Matambanadzo, Engendering Sex: Birth
Certificates, Biology and the Body in Anglo American Law, 12
CARDOZO J.L. & GENDER 213, 219 (2005) (noting that surgical
procedures often serve to ―bring [an individual‘s] ‗biological sex‘
into line with their gender identity‖). It does not seem that the
dissent would disagree with this logic. See infra ¶ 223 (stating that
―a basis for a ‗change‘‖ in an individual‘s sex designation ―might
be met where a person can demonstrate that the biological
indicators of sex have been altered‖).
See, e.g., Elizabeth Reilly, Radical Tweak—Relocating the Power to
Assign Sex, 12 CARDOZO J.L. & GENDER 297, 299 (2005) (providing
an estimate that intersex births occur in 1.7% of live births (citing
ANNE FAUSTO-STERLING, SEXING THE BODY: GENDER POLITICS AND
THE CONSTRUCTION OF SEXUALITY 92–95 (2000)); Alice Domurat
Dreger, “Ambiguous Sex”—Or Ambivalent Medicine? Ethical Issues
in the Treatment of Intersexuality, 28 HASTINGS CTR. REP. 24, 26
(1998) (noting that the frequency in which ―sex is doubtful
because of the external genitalia‖ is ―roughly 1 in 1,500 live
births‖). Given the rarity of such births, and with all due respect
to those individuals, we find it is unnecessary to contemplate
these cases in our analysis. It appears the dissent may agree. See
infra ¶ 226 (stating that the ―‗sex‘ designation on a birth certificate
is an objective determination based on observation of physical
characteristics‖ (emphasis added)).
37 For example, hormone therapy ―is an effective step for
enhancing feminine or masculine secondary sex characteristics
(e.g., voice, facial hair, breast tissue, muscle mass).‖ Dean Spade,
Documenting Gender, 59 HASTINGS. L.J. 731, 755 (2008).
42
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¶88 But if the dissent defines the term ―biological sex‖ as
encompassing observable sex characteristics and genetically
controlled sex chromosomes, the statute would be rendered
nonsensical. In the birth certificate context, sex is generally
determined by an external ―anatomical examination,‖ not by an
examination of the individual‘s chromosomal makeup.38 And the
legislature could not have intended to include consideration of
sex chromosomes in its conception of ―sex‖ in a statute regarding
name and sex changes because sex chromosomes are immutable
and no therapy, treatment, or procedure exist to alter them (at
least not currently, and certainly not in 1975). See, e.g., Julie A.
Greenberg, Defining Male and Female: Intersexuality and the Collision
Between Law and Biology, 41 ARIZ. L. REV. 265, 294 (1999) (―[T]he
only sex indicators that are truly fixed are chromosomes . . . .‖).
¶89 Additionally, if we were to view ―biological sex‖ as
including the immutable genetic makeup of an individual, we
would unearth another absurdity. This standard would leave
open only the possibilities that a sex change could be approved
because of a ―discovery of a mistake in the biological sex
designation made at the time of a child‘s birth, or a showing that
the biological features of an intersex person have developed
differently than expected at birth.‖39 Infra ¶ 223. But if ―sex‖ on a
__________________________________________________________
38 Except in rare cases involving ambiguous genitalia. See supra
¶ 87 n.36.
We also note that chromosomal examinations have their own
limitations, as evidenced by the story of world-class hurdler
Maria Patiño. Ms. Patiño was banned from competing in the 1985
World University Games after a sex chromatin test revealed she
had the chromosomal makeup of a male (XY). Julie A. Greenberg,
Defining Male and Female: Intersexuality and the Collision Between
Law and Biology, 41 ARIZ. L. REV. 265, 273 (1999). Ms. Patiño was
unaware that she had a condition that caused her ―external
morphologic sex, phenotype, and self-identification‖ as a female
to conflict with her chromosomal make-up as a male. Id.
39 We do not accuse the dissent of making or relying on the
argument that ―biological sex‖ includes genetic indicators of sex.
Notably, the dissent recognizes that its ―biological sex‖ standard
―also might be met where a person can demonstrate that the
biological indicators of sex have been altered, as by sex-
reassignment surgery.‖ Infra ¶ 223. Rather, we use the dissent‘s
(continued . . .)
43
IN RE SEX CHANGE
Opinion of the Court
birth certificate indicates a purely biological trait and not an
identifier of legal status, then why does one need a court order to
change it?40 And, again, why does the statute not differentiate
between ―name change‖ and ―sex change‖ if the former is a legal
classification and the latter is biological?
¶90 We have said in the past, including in an opinion
penned by the author of today‘s dissent, that we could not
possibly attribute ―absurdity‖ to our legislature because such
―construction‖ is ―so far beyond the realm of the conceivable.‖
Graves v. N.E. Servs., Inc., 2015 UT 28, ¶ 71 n.10, 345 P.3d 619. And
in this case, a construction that ―sex‖ means ―biological sex‖
including genetics (one‘s chromosomal makeup) would be ―so
language to highlight why any definition of ―biological sex‖
would ultimately fail in this context.
40 The Utah Vital Statistics Act generally requires health care
professionals to directly file certificates based on purely medical
observations. See, e.g., UTAH CODE § 26-2-5(3) (requiring a
―birthing facility administrator or his designee‖ or the ―attending
physician or nurse midwife‖ to fill out, sign, and file a birth
certificate with ―medical information‖); id. § 26-2-14 (requiring an
―institution administrator or his designated representative‖ or a
physician to ―complete, sign, and file [a] fetal death certificate‖);
id. § 26-2-13 (requiring a ―funeral service director,‖ or in some
cases a ―health care professional,‖ to complete and file a certificate
of death). By contrast, the Act requires a court order in only three
circumstances: (1) to provide a birth certificate for an adopted
foreign child, id. § 26-2-28; (2) to ―establish[] the fact, time, and
place of a birth or death that is not registered,‖ id. § 26-2-15; and
(3) to approve a ―name change or sex change‖ amendment to a
birth certificate. Id. § 26-2-11. These situations all deal with the
establishment of an individual‘s legal status or identification,
independent from any medical observation.
Again, the dissent argues that ―sex‖ can only be changed due
to ―discovery of a mistake in the biological sex designation made
at the time of a child‘s birth, or a showing that the biological
features of an intersex person have developed differently than
expected at birth.‖ Infra ¶ 223. Since these two conditions are both
fundamentally medical observations, we can assume that, if the
legislature had intended this result, it would have simply allowed
a health care professional to complete and file the amendment.
44
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absurd that we are certain that ‗the legislative body which
authored the legislation could not have intended it.‘‖ State v.
J.M.S. (In re J.M.S.), 2011 UT 75, ¶ 41, 280 P.3d 410 (Lee, J.,
concurring) (quoting State ex. rel. Z.C., 2007 UT 54, ¶ 13, 165 P.3d
1206).
¶91 So, to put it simply, biological sex, as it is understood in
the birth certificate context, may transform according to how a
transgender individual chooses to respond to their gender
dysphoria. But we take this opportunity to caution against relying
even on the term ―biological sex‖ as defined by observable
external attributes. Transitioning from male to female or female to
male is a process, not a switch. We must avoid relying on terms
that may lead us toward setting a threshold for completion of a
transition, because that is a line we are not equipped to draw.
Even relying on the term ―sex-reassignment surgery,‖ infra
¶¶ 219, 223, 240, as a threshold would be unhelpful because it is a
vague standard. Transgender individuals have an array of
surgical options by which they can effectuate their transition, if
that is indeed the route they wish to take. These options include
facial reconstruction, orchiectomy (removal of gonads),
vaginoplasty, mammoplasty, mastectomy, hysterectomy,
vaginectomy, phalloplasty, see In re Heilig, 816 A.2d 68, 78 (Md.
2003); In re Harris, 707 A.2d 225, 226 (Pa. Super. Ct. 1997), and
―surgical procedures of non-genital, or non-breast, sites (nose,
throat, chin, cheeks, hips, etc.) conducted for the purpose of
effecting‖ the appearance of the adopted sex. O’Donnabhain v.
C.I.R., 134 T.C. 34, 38 (T.C. 2010) (citation omitted). Further, there
appears to be little inter- and intra-jurisdictional consensus on the
exact definition of ―sex-reassignment surgery.‖ Some jurisdictions
use the term as an umbrella term for all gender-affirming surgical
procedures. See, e.g., Fields v. Smith, 653 F.3d 550, 552 (7th Cir.
2011) (―‗Sexual reassignment surgery‘ means surgical procedures
to alter a person‘s physical appearance so that the person appears
more like the opposite gender.‖ (quoting the Wisconsin Inmate
Sex Change Prevention Act, WIS. STAT. § 302.386(5m) (2010)));
O’Donnabhain, 134 T.C. at 38 (relying on the World Professional
Association for Transgender Health‘s Standards of Care, under
which ―sex reassignment surgery[] consist[s] of genital sex
reassignment and/or nongenital sex reassignment‖ (emphasis
added)); Smith v. Rasmussen, 249 F.3d 755, 757 (8th Cir. 2001)
(noting that ―sex reassignment surgery‖ involves ―several
different surgical procedures‖ including ―breast reduction and
contouring‖ and ―phalloplasty‖). Others use it to refer specifically
45
IN RE SEX CHANGE
Opinion of the Court
to procedures altering the primary sex organs. See, e.g., Campbell v.
Kallas, 936 F.3d 536, 539 (7th Cir. 2019) (using the term ―sex-
reassignment surgery‖ to refer to ―surgeries that replace an
individual‘s existing genitals with approximations of those of the
opposite sex,‖ in a case analyzing an Eighth Amendment claim).
Some jurisdictions do not even use the term. See, e.g., Hare v. Minn.
Dept. of Hum. Servs., 666 N.W.2d. 427, 431–32 (Minn. Ct. App.
2003) (interpreting the term ―gender reassignment services‖ as an
umbrella term for all ―treatment necessary to address gender
dysphoria‖); Good v. Iowa Dept. of Hum. Servs., 924 N.W.2d 853,
856–57 (Iowa 2019) (interpreting the term ―gender-affirming
surgery‖ to refer specifically to procedures altering an
individual‘s ―sex characteristics‖). All this is to say we are judges,
not medical professionals, which is why our standard relies on
licensed medical professionals to establish that an individual
petitioner has received what the medical professional deems to be
appropriate treatment.41 We also note that while we take the time
to respond to the dissent‘s engagement with the definition of
―sex,‖ we emphasize again that ―sex‖ was not intended to
designate a standard in this statute.
¶92 But despite all the dissent‘s guesswork about the
legislature‘s intent that ―sex‖ means ―biological sex,‖ it matters
not because the legislature did not use those words. And ―[j]udges
are not free to overlook plain statutory commands on the strength
of nothing more than suppositions about intentions or guesswork
__________________________________________________________
41 But we do understand that health care treatment is
expensive, and not all individuals are capable of affording or
accessing the kind of treatment that would effectively change an
individual‘s external sex characteristics. Further, the cost of sex-
reassignment surgery is ―much higher‖ for transgender men than
women. Heilig, 816 A.2d at 78. ―One commentator has asserted
that a male-to-female operation costs an average of $37,000,
whereas the average female-to-male operation costs $77,000.‖ Id.
(citing Aaron C. McKee, The American Dream—2.5 Kids and a White
Picket Fence: The Need for Federal Legislation to Protect the Insurance
Rights of Infertile Couples, 41 WASHBURN L.J. 191, 198 (2001)). Given
these high costs and disparate impacts on transgender men versus
transgender women, we can imagine that any standard for ―sex
change‖ that relies on surgical intervention would be vulnerable
to equal protection challenges.
46
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about expectations.‖ Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1754
(2020). ―We look to laws.‖ Official Transcript of Oral Argument at
60:17–20 (Kagan, J.), Bostock, 140 S. Ct. 1731 (2020); Transcript of
Oral Argument at 60:21-22 (Sotomayor, J.), Bostock, 140 S. Ct. 1731(2020) (―We don‘t look to predictions. We don‘t look to desires.
We don't look to wishes. We look to laws.‖)
¶93 When we look to the law here, we see a statute that
clearly presupposes a district court‘s authority to adjudicate a
―sex change.‖ We also see a clear and deliberate omission of any
legislative standard by which a court should do so. Accordingly,
we exercise our ―judicial power‖ to effect the intent of the
legislature by fulfilling that statutory gap with our established
common law, which is precisely what the statute, properly read,
calls for.
B. Not Sought for a Wrongful or Fraudulent Purpose
¶94 The first prong in the test we articulate adopts the
common-law jurisprudence regarding name-change petitions.
Generally, sex-change petitions—just like name-change
petitions—should be granted if they are not ―sought for a
wrongful or fraudulent purpose.‖ See In re Porter, 2001 UT 70, ¶ 8.
We adopt this prong because name changes and sex changes—
along with the policy reasons for allowing or disallowing them—
are similar. We detail these similarities below before we outline
the test we have historically applied to adjudicate name-change
petitions.
¶95 A name change and a sex change are both changes to
one‘s personal legal status or identification. Supra Parts I(B) and
(C). Like with a legal name, a person is assigned a sex designation
at birth, and it appears on their birth certificate. Like with a legal
name, a person, later in life, may not identify themselves with
their birth sex designation.
¶96 The policies underlying the authority of courts to
approve name changes apply as forcefully to sex changes. The aim
of facilitating such changes is to promote clarity and avoid
confusion. See In re Porter, 2001 UT 70, ¶ 11. A ―legal name change
. . . actually prevent[s] the daily confusion and public
confrontations which presently plague [a person‘s] dealings with
the public‖ when their chosen name is different than the one that
appears on their government identification. In re Harris, 707 A.2d
at 228.
47
IN RE SEX CHANGE
Opinion of the Court
¶97 The same is true for sex changes. A person‘s sex
designation can govern various interactions with the government
and with the public. Government agencies use sex designation ―to
validate a transgender person‘s identity when being used to
access social benefits, services, or other forms of identification.‖
Bryanna A. Jenkins, Note, Birth Certificate with a Benefit: Using
LGBTQ Jurisprudence to Make the Argument for a Transgender
Person’s Constitutional Right to Amend Identity Documents, 22
CUNY L. REV. 78, 97 (2019). An Alaska trial court has described
the problem succinctly in the context of driver licenses:
By not allowing transgendered individuals to change
their sex designation, their license will inaccurately
describe the discernable appearance of the license
holder by not reflecting the holder‘s lived gender
expression of identity. Thus, when such individuals
furnish their license to third-persons for purposes of
identification, the third-person is likely to conclude
that the furnisher is not the person described on the
license.
K.L. v. Alaska Dep’t of Admin., Div. of Motor Vehicles, No.
3AN-11-05431 CI, 2012 WL 2685183, at *7 (Alaska Super. Ct. Mar.
12, 2012).
¶98 Ms. Rice‘s own experience supports this account. In her
sex-change petition, she stated that, as a transgender woman
whose birth certificate designates her sex as ―male,‖ she is
―subject to invasive and embarrassing scrutiny, including pat-
downs, because her documentation doesn‘t match who [she is].‖
Matching her identification documentation with her identity
would significantly reduce any confusion and any misinformed
treatment. Gone unchecked, such treatment can prevent
transgender people from effectively participating in the public
arena, including voting.42 See Julie Moreau, Strict ID Laws Could
__________________________________________________________
42 It is true that
applying protective laws to groups that were
politically unpopular at the time of the law‘s passage
. . . [such as] transgender [people,] . . . often may be
seen as unexpected. But to refuse enforcement just
because of that, because the parties before us
happened to be unpopular at the time of the law‘s
(continued . . .)
48
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Disenfranchise 78,000 Transgender Voters, Report Says, NBC NEWS
(Aug. 17, 2018, 12:05 PM),
https://www.nbcnews.com/feature/nbc-out/strict-id-laws-
could-disenfranchise-78-000-transgender-voters-report-n901696.
¶99 Having established the similarities between name-
change and sex-change petitions, we now turn to the test this
court applies when adjudicating name-change petitions. This
court‘s case law outlines ―very broad limits‖ to a person who
wants to select ―the name by which he [or she] is known.‖ In re
Porter, 2001 UT 70, ¶ 11; see In re Cruchelow, 926 P.2d 833, 834
(Utah 1996). And we have held that name-change petitions
―should generally be granted.‖ In re Cruchelow, 926 P.2d at 834
(citation omitted). This court has also held that one proper cause
for a name-change petition is to conform a person‘s legal name to
their identity. See In re Porter, 2001 UT 70, ¶ 11; see also In re
Cruchelow, 926 P.2d at 834.
¶100 A court may deny a name-change petition only for a
―substantial reason‖ backed by ―factual support.‖ In re Cruchelow,
926 P.2d at 834. We have explained that such reasons include a
factually proven ―unworthy motive‖: fraud. In re Porter, 2001 UT 70,
¶ 7 (citation omitted). On the other hand, a court may not deny a
petition because of ―[u]nsupported generalizations and
speculation,‖ including worries that the change could create
confusion or misunderstanding,43 complicate government
recordkeeping and notice requirements, cause substantial
mischief, or create a chilling effect on potential future litigants. In
re Porter, 2001 UT 70, ¶¶ 7, 9–11; see In re Cruchelow, 926 P.2d at
834–35.
passage, would not only require us to abandon our
role as interpreters of statutes; it would tilt the scales
of justice in favor of the strong or popular and neglect
the promise that all persons are entitled to the benefit
of the law‘s terms.
Bostock, 140 S. Ct. at 1751.
43 We repeat that the contrary is often true—confusion or
misunderstanding is very likely to occur if an individual‘s legal
sex designation does not match their external manifestations of
gender identity. See supra ¶¶ 40, 96–98.
49
IN RE SEX CHANGE
Opinion of the Court
¶101 With these principles in mind, we have twice reversed
denials of name-change petitions. We first did so in In re
Cruchelow. There, we reversed a district court‘s denial of an
inmate‘s request to change his name, while in custody, to reflect
his newly adopted religious beliefs. In re Cruchelow, 926 P.2d at
835. We held that ―unsupported generalizations and speculations‖
about confusion in the prison‘s records and the Board of Pardons
proceedings are not sufficient to deny such change. Id. We
accordingly remanded the case to the district court for a hearing
to consider any evidence supporting the court‘s concerns. Id.
¶102 Then, in In re Porter, we reversed a district court‘s
decision to deny the appellant‘s petition to change his name to
―Santa Claus.‖ 2001 UT 70, ¶ 13. Porter argued that he needed the
name change because he resembled the ―fictional character‖ and
did numerous activities using that persona. Id. ¶¶ 6, 12. The
district court found that, if allowed, the name change would
―create confusion‖ and ―misunderstanding‖ and ―could allow for
substantial mischief,‖ and deter others from suing Porter. Id. ¶ 9.
We reversed. We explained that there was no evidence to support
the district court‘s concerns and, even if there were, these
concerns were not enough to deny a name-change petition. Id.
¶¶ 11–13. We held that we do not sit as arbiters of the prudence of
names chosen at will. And because Porter already held himself
out as Santa Claus, ―[a]llowing him to legally change his name to
reflect his practice of doing so is more likely to avoid greater
confusion.‖ Id. ¶ 11. We remanded with instructions to enter the
name-change order. Id. ¶ 13.
¶103 Because name and sex changes are analogous, we hold
that—like a name-change petition—a sex-change petition ―should
generally be granted unless sought for a wrongful or fraudulent
purpose.‖ See id. ¶ 8 (quoting In re Cruchelow, 926 P.2d at 834).
And, as long as a petitioner complies with the second prong of the
test we announce today, infra ¶ 105, a court may deny a
sex-change petition only for ―substantial reason‖ backed by
―factual support.‖44 In re Cruchelow, 926 P.2d at 834.45
__________________________________________________________
44 Below we note that the district court acted inappropriately
when it made general, slippery-slope arguments about appellants‘
petitions. See infra ¶¶ 117–18. The dissent raises similar arguments
in stating that our ―decision will have far-reaching implications.‖
Infra ¶ 144 (―It seems destined, for example, to affect spaces
(continued . . .)
50
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traditionally reserved for cisgender girls and women—sex-
segregated sports leagues, school locker rooms, and shelters
designed as safe spaces for victims of sex abuse.‖ (footnotes
omitted)).
We reject this line of argument with hammer and tongs. In
fact, other courts have addressed arguments like those made by
the dissent and thoroughly rejected them. See, e.g., Grimm v.
Gloucester Cnty. Sch. Bd., 972 F.3d 586, 614 (4th Cir. 2020) (―The
Board does not present any evidence that a transgender student,
let alone [Appellant], is likely to be a peeping tom, rather than
minding their own business like any other student.‖), reh’g en banc
denied, 976 F.3d 399 (4th Cir. 2020), petition for cert. filed, No. 20-
1163 (Feb. 19, 2021); Adams by and through Kasper v. Sch. Bd. of St.
Johns Cnty., 968 F.3d 1286, 1299–1301 (11th Cir. 2020) (noting that
―[Appellant‘s] presence in the boys‘ bathroom does not jeopardize
the privacy of his peers in any concrete sense‖); Doe v. Boyertown
Area Sch. Dist., 897 F.3d 518, 534–36 (3d Cir. 2018) (finding that
―the appellants unconvincingly tr[ied] to equate mere presence in
a space with harassing activity‖ and thus failed to meet their
burden of establishing that a transgender student‘s presence in
bathrooms and locker rooms constituted sexual harassment);
Hecox v. Little, 479 F. Supp. 3d 930, 979–81 (D. Idaho Aug. 17,
2020), appeal docketed, No. 20-35813 (9th Cir. Sept. 17, 2020)
(addressing the ―compelling evidence that equality in sports is not
jeopardized by allowing transgender women who have
suppressed their testosterone for one year to compete on women‘s
teams,‖ quoting favorably the statement that ―there is a medical
consensus that the difference in testosterone is generally the
primary known driver of differences in athletic performance
between elite male athletes and elite female athletes,‖ and noting
that the ―policies of elite athletic regulatory bodies across the
world, and athletic policies of most every other state in the
country‖ undermine arguments like the dissent is making here
(citations omitted) (internal quotation marks omitted)). This
leaves the dissent‘s ideas not only unsupported but rejected by
judicial fact-finding and legal analysis.
We note, importantly, that we do not intend to minimize
feelings and emotions that individuals may have about
transgender people in traditionally cisgender spaces, but there is
no legal basis for us to ignore the ―needs, humanity, and decency
of transgender‖ people either. See Boyertown, 897 F.3d at 532. And
(continued . . .)
51
IN RE SEX CHANGE
Opinion of the Court
C. Evidence of Appropriate Clinical Care or Treatment For Gender
Transitioning or Change, Provided by a Licensed Medical Professional
¶104 Even though name and sex changes are similar in
purpose, they are not identical. At birth, a person‘s name is given
at the whim of a non-medical party (usually a parent). But a
person‘s initial sex designation is inherently a medical evaluation
made according to objective observation at birth, typically by a
medical professional. See F.V. v. Barron, 286 F. Supp. 3d 1131, 1136
(D. Idaho 2018) (―Sex determinations made at birth are most often
based on the observation of external genitalia alone.‖).
¶105 We believe that, much like a sex designation made at
birth, a change in sex designation should be accompanied by
objective evidence. As a result, we hold that a petitioner must
present, at the minimum, evidence of appropriate clinical care or
treatment for gender transitioning or change, provided by a
licensed medical professional.46 We do not require any specific
if the rights of cisgender individuals are affected, those
individuals may have their day in court once their issues are ripe.
See supra ¶ 43 n.21.
Ultimately, our decision today does not direct the State to
allow transgender individuals to change their official
documents—the legislature has already decided that in Utah
Code section 26-2-11. It is our role to interpret that statute, and
that is what we have done today. Nothing more.
45 Clearly, the legislature may adopt a different rule for sex-
change petitions. That definition would, of course, need to
conform to constitutional standards that we need not address
here.
46 The dissent claims that our standard will allow for ―a birth
certificate amendment upon a showing of any care or treatment.‖
Infra ¶ 308. This claim is unfounded. The licensed medical
professional that provides such evidence has professional ethical
commitments, and the evidence of appropriate clinical care or
treatment for gender transitioning or change provided by them
must be in keeping with those commitments.
And while we need not engage with the medical standard, we
note that our review of a dozen Utah district court cases, see infra
¶ 111, shows that the relevant standard used by medical
professionals is offered in the Diagnostic and Statistical Manual of
(continued . . .)
52
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procedure or treatment. Instead, the licensed medical professional
should provide that the appropriate clinical care or treatment
conforms with the relevant medical standard of care for gender
dysphoria.47
¶106 This standard is prudent based on several authorities: a
Utah statute defining ―gender identity,‖ federal requirements for
sex change, case law from other jurisdictions, and the decisions of
Utah district courts.48
Mental Disorders, Fifth Edition (DSM-5) (a standard endorsed by
our legislature in another context, see infra ¶ 107 n.49). The fact-
sheet regarding ―Gender Dysphoria‖ states that ―[f]or a person to
be diagnosed with gender dysphoria, there must be a marked
difference between the individual‘s expressed/experienced
gender and the gender others would assign him or her, and it
must continue for at least six months.‖ AM. PSYCHIATRIC ASS‘N,
GENDER DYSPHORIA (2013) (emphasis
added),https://www.psychiatry.org/File%20Library/Psychiatris
ts/Practice/DSM/APA_DSM-5-Gender-Dysphoria.pdf; see also
Boyertown, 897 F.3d at 522 (―A transgender [man] is therefore a
person who has a lasting, persistent male gender identity, though
that person‘s sex was determined to be female at birth.‖ (emphasis
added)); Cécile A. Unger, Hormone therapy for transgender patients,
5 TRANSLATIONAL ANDROLOGY & UROLOGY 877, 878 (Dec. 2016),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5182227/pdf/
tau-05-06-877.pdf (noting that the World Professional Association
for Transgender Health‘s recommended criteria for hormone
therapy includes ―persistent well-documented gender dysphoria
. . . diagnosed by a mental health professional well versed in the
field‖ (emphasis added)).
47 We do not address in this opinion the issue of non-binary
sex designation because it was not raised by the parties, who each
seek a binary sex designation change. We leave this question for
an appropriate case.
48 The dissent refers to our ―evolving‖ use of the term ―gender
identity.‖ Infra ¶ 149. We do not argue that ―sex‖ means ―gender
identity.‖ The ―sex‖ designation on a birth certificate is a datum of
legal status. And consistent with many other state and federal
authorities, see infra ¶ 107–11, our test allows a person to change
(continued . . .)
53
IN RE SEX CHANGE
Opinion of the Court
¶107 First, the Utah legislature has opined in another context
about what evidence is sufficient to prove one‘s gender identity.
The Utah Fair Housing Act addresses how one can show their
gender identity:
A person‘s gender identity can be shown by
providing evidence, including, but not limited to,
medical history, care or treatment of the gender
identity, consistent and uniform assertion of the
gender identity, or other evidence that the gender
identity is sincerely held, part of a person‘s core
identity, and not being asserted for an improper
purpose.
UTAH CODE § 57-21-2(16).49 We find this statutory test for proving
one‘s gender identity suggests a legislative intent as to how one
might prove why a change to the sex designation on their birth
certificate is proper.50 Still, the test we articulate today is bound
by the historical limitations of our non-adversarial adjudications,
such as name-change petitions, to which we analogize. As
explained above, our jurisprudence requires that a petitioner
show that a sex change is not sought for ―wrongful or fraudulent
that legal status by presenting objective evidence of professional
medical treatment of the ―gender identity.‖
49 The DSM-5—endorsed in Utah Code section 57-21-2—
defines gender as the ―public[ly] (and usually legally recognized)
lived role as a boy or girl, man or woman.‖ AM. PSYCHIATRIC
ASS‘N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS: DSM-5, at 451 (5th ed. 2013). Utah Code section 57-21-
2(22) says that ―sex‖ means ―gender.‖
50 The dissent takes issue with our consideration of the Utah
Fair Housing Act‘s language, insisting that we have ―identifie[d]
no basis for extending [that statute‘s] definition of ‗sex‘‖ to the
statute before us today. Infra ¶ 227. This appears to be a misplaced
criticism of our analysis—we do not purport to extend the
definitions contained in the Fair Housing Act across any
boundaries separating bodies of law. Rather, we are exercising
our duly granted authority to create a test where the legislature
intentionally left a gap. Accordingly, we look to the Fair Housing
Act not in reliance on its language, but merely for guidance in
creating the test.
54
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purposes.‖ Supra ¶ 103. In the sex-change context, we cannot see
how that showing would not require objective evidence. But we
reject the possibility that a petitioner might prove a change to
their sex designation through evidence of ―consistent and
uniform assertion of the gender identity,‖ but not because this is
not objective evidence (it may well be); rather, we focus only on
the determination provided by a licensed medical professional
because it mirrors how sex is typically initially designated at
birth. See supra ¶¶ 4 n.5, 105. Showing a change to one‘s sex
designation by providing evidence of appropriate clinical care or
treatment for gender transitioning or change by a licensed
medical professional is exactly the kind of objective evidence that
our jurisprudence requires. As such, it is all we require today.51
¶108 Second, when considering a sex change, federal
authorities have a requirement like the one that we announce
today. The Social Security Administration guidelines, ―Changing
Numident Data for Reasons other than Name Change,‖ accept as
proof of sex change, among other things, ―medical certification of
appropriate clinical treatment for gender transition.‖ Program
Operations Manual System, RM 10212.200 Changing Numident Data
for Reason other than Name Change, SOC. SEC. ADMIN. (June 13,
2013), https://secure.ssa.gov/poms.nsf/lnx/0110212200. These
requirements specify which licensed physicians can provide such
a statement (a doctor of medicine or a doctor of osteopathy) and
ask the physicians to include in their ―original signed‖ statement
full details about themselves, to include ―language stating the
__________________________________________________________
51 Evidence of one‘s medical history may certainly be used to
make this showing. However, we have privacy concerns about
requiring any evidence of medical history beyond the immediate
treatment for gender transitioning or change, so we do not require
any.
We note here that the appellants before us seek a change in sex
designation because they do not identify with the designation
given to them at birth. They do not challenge the initial
designation as incorrect. A future petitioner may seek a change in
sex designation simply because the initial sex designation was
clearly erroneous—perhaps due to a scrivener‘s error or improper
medical observation. In such a case, medical history or other
similar evidence may provide the necessary evidence to prove the
change in sex designation, but we need not decide that issue here.
55
IN RE SEX CHANGE
Opinion of the Court
physician has either treated the individual in relation to the
individual‘s change in gender or has reviewed and evaluated the
medical history of the individual in relation to the individual‘s
change in gender and that the physician has a doctor/patient
relationship with the individual,‖ and to declare that their
statement is made ―under penalty of perjury under the laws of the
United States that the foregoing is true and correct.‖ Id. The Social
Security Administration‘s requirements note, however, that
―[s]urgery is no longer required to change the sex field on the
[Administration‘s database].‖ Id.
¶109 The Social Security Administration is not alone. The
State Department also allows for sex change on a person‘s
passport, even before a person has completed the treatment for
―transition.‖ Change of Sex Marker, U.S. DEP‘T OF STATE,
https://travel.state.gov/content/travel/en/passports/need-
passport/change-of-sex-marker.html (last visited April 21, 2021).
The State Department also asks for proof of ―appropriate clinical
treatment‖ for sex changes on a person‘s passport. Id. What
clinical treatment is appropriate is up to the physician: The
―physician determines what appropriate clinical treatment is
according to acceptable medical practices, standards and
guidelines, and certifies that [the applicants] have had
appropriate clinical treatment for transition to either male or
female.‖ Id. The State Department, however, specifies that
―[s]urgery is not a requirement to get a U.S. passport.‖ Id.
(emphasis omitted).
¶110 Third, courts in other jurisdictions that lack statutory
guidance have also required objective evidence. The Indiana
Court of Appeals held that ―the ultimate focus [of a sex-change
petition] should be on whether the petition is made in good faith
and not for a fraudulent or unlawful purpose.‖ In re Change of
Birth Certificate, 22 N.E.3d 707, 710 (Ind. Ct. App. 2014) (holding
that the appellant in that case ―made an adequate showing in
support of his petition‖ because ―[h]e presented ample medical
evidence regarding his gender transition‖). Delaware and
Maryland have also articulated an objective medical standard
requirement, but with a connection to sex-reassignment surgery.52
__________________________________________________________
52 Unlike the Delaware and Maryland courts, we hold that,
although sex-reassignment surgery may be evidence of sex
change, it is not required. Other authorities agree. The Indiana
(continued . . .)
56
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See In re McDannell, 2016 WL 482471, at *4 (Del. Ct. Com. Pl. Feb.
5, 2016); In re Heilig, 816 A.2d at 86.
¶111 Fourth, different Utah district courts have been
adjudicating sex-change petitions in recent years based on such
objective evidence. Appellants presented, and we have reviewed,
twelve Utah district court decisions issued between 2014 and 2017
approving sex changes. All but two of the decisions include
factual findings of objective medical evidence provided by a
licensed medical professional.53 See In re Davis, No. 173900047, at 2
(Utah Dist. Ct. Second Dist. Mar. 27, 2017) (finding that
―[p]etitioner has been treated and is following‖ the medical
standards of care given to the petitioner by a licensed physician
and ―has undergone irreversible genital reassignment surgery‖);
Court of Appeals noted that a sex-reassignment surgery is not
required for a successful sex-change petition. In re Change of Birth
Certificate, 22 N.E.3d at 710 n.4; see also In re Name & Gender Change
of R.E., 142 N.E.3d 1045, 1052–53 (Ind. Ct. App. 2020) (ordering the
lower court to grant the appellant‘s sex-change petition even
though the appellant had not undergone a physical sex change).
Likewise, federal authorities explicitly say that sex-reassignment
surgery is not required. See supra ¶¶ 108–09. Nor is sex-
reassignment surgery mentioned anywhere in Utah law. We thus
hold that ―evidence of appropriate clinical care or treatment for
gender transitioning or change‖ need not include sex-
reassignment surgery. This rule is prudent given that there ―is no
medical consensus that sex reassignment surgery is a necessary or
even effective treatment for gender dysphoria.‖ Gibson v. Collier,
920 F.3d 212, 223 (5th Cir. 2019); see also Boyertown, 897 F.3d at 522
(―Treatment for children and adolescents who experience gender
dysphoria includes social gender transition and physical
interventions such as puberty blockers, hormone therapy, and
sometimes surgery.‖ (emphasis added)).
53 In In re Leavitt, the district court simply stated that it had
―considered the documents filed with the [c]ourt, [and] the
evidence presented at the hearings,‖ and found ―adequate factual
basis‖ to grant the petitioner‘s sex-change petition. Case No.
153900411, at 1–2 (Utah Dist. Ct. Third Dist. June 8, 2015). In In re
Caldwell, Case No. 143800043, at 1–2 (Utah Dist. Ct. Eighth Dist.
Oct. 31, 2014), the district court‘s order did not contain findings of
fact but approved the sex change.
57
IN RE SEX CHANGE
Opinion of the Court
In re Cohen, No. 163902596, at 2 (Utah Dist. Ct. Third Dist. Jan. 3,
2017) (noting petitioner‘s treatment under the relevant medical
standards, as evidenced by a licensed medical professional,
without specifying the treatment); In re Manzanares, No.
163901747, at 2 (Utah Dist. Ct. Third Dist. Sept. 14, 2016) (same); In
re Fairbourn, No. 163901213, at 2 (Utah Dist. Ct. Third Dist. Aug.
18, 2016) (same); In re Hardy, No. 153400814, at 2 (Utah Dist. Ct.
Fourth Dist. Aug. 10, 2016) (same); In re South, No. 163400140, at 2
(Utah Dist. Ct. Fourth Dist. July 8, 2016) (same); In re Walton, No.
163700026, at 2 (Utah Dist. Ct. Seventh Dist. June 6, 2016) (same);
In re Ivory, No. 153300116, at 2 (Utah Dist. Ct. Third Dist. Feb. 2,
2016) (same); In re Carmichael, No. 153902067, at 2 (Utah Dist. Ct.
Third Dist. Jan. 4, 2016) (same); In re Collins, No. 153902244, at 3
(Utah Dist. Ct. Third Dist. Dec. 3, 2015) (same and adding that
petitioner had ―undergone hormonal replacement therapy,‖ ―has
been receiving female hormones for decades,‖ and had
―undergone gender reassignment surgery‖). Although these
decisions have no precedential value, they show how workable an
objective medical standard is and how it is connected intrinsically
with a ―proper cause‖ evaluation of a sex-change petition.
¶112 And so, to conclude, sex-change petitions ―should
generally be granted unless sought for a wrongful or fraudulent
purpose.‖ See In re Porter, 2001 UT 70, ¶ 8 (quoting In re Cruchelow,
926 P.2d at 834). They must also include, at minimum, objective
evidence of appropriate clinical care or treatment for gender
transitioning or change, provided by a licensed medical
professional.
V. THE CASES BEFORE US
¶113 These cases should be remanded with instructions to
grant the petitions for sex change without any further hearing for
three reasons.54
¶114 First, in both cases, the district court granted appellants‘
petitions for name change, finding no ―wrongful or fraudulent
purpose.‖ See In re Porter, 2001 UT 70, ¶ 8, 31 P.3d 519; In re
Cruchelow, 926 P.2d 833, 834 (Utah 1996). When a name change is
connected to a person‘s sex change (as it is in these cases), we can
conclude that the requested sex change has no ―wrongful or
fraudulent purpose‖ if the requested name change does not.
__________________________________________________________
54 In this section we refer to the cases separately.
58
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¶115 Second, the petitioners here complied with the objective
medical standard that we describe above. Both petitioners
provided letters from a doctor ―stating that each of them had been
treated for Gender [Dysphoria] and undergone ‗the appropriate
clinical treatment‘ for the gender transition.‖ The doctors‘ letters
complied with the Social Security Administration standard we
detailed above.55 See supra ¶ 108. In Ms. Rice‘s case, the district
court ―declined to make findings on these issues‖ but noted that
two licensed physicians diagnosed and treated her for ―Gender
Dysphoria‖ ―in accordance with‖ relevant medical standards.
¶116 Third, the district court‘s orders were based on a legal
mistake. In Ms. Rice‘s case, the court only proffered its view that
―the procedure for obtaining a sex/gender marker change must
be set forth by the legislature and the Court is prohibited from
invading the legislature‘s prerogative on this issue. Thus, the
request to change Petitioner‘s legal sex/gender marker is not a
properly justiciable question.‖ But its denial of Mr. Childers-
Gray‘s petition, issued eight days before that, revealed
―[u]nsupported generalizations‖ and concerns—considerations
that our case law strictly prohibits. See In re Porter, 2001 UT 70, ¶ 7.
The court proclaimed that ―[r]egardless of the sincerity or the
intensity of the desire of any individual to display any particular
physical appearance, some biological facts are not subject to
voluntary modification.‖ The court then continued on what we
can generously describe as a page of hypotheticals and slippery-
slope arguments with no factual basis.
__________________________________________________________
55 And while we do not require that each petition complies
with the Social Security Administration standard, we do
recognize that such compliance is one way to meet the
requirements of our test.
59
IN RE SEX CHANGE
CHIEF JUSTICE DURRANT, concurring in part, dissenting in part,
and concurring in the judgment
¶117 We emphatically disavow such language and
propositions. ―Ours is a society of written laws. Judges are not
free to overlook plain statutory commands on the strength of
nothing more than suppositions about intentions or guesswork
about expectations.‖ Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1754
(2020). As for the district court‘s declaration that ―some biological
facts are not subject to voluntary modification,‖ the reader must
be clinically aware by now that the sex change we are discussing
has less to do with biology than with identity. See supra ¶¶ 84–91.
And as for the hypotheticals suggested by the district court, we
generally frown upon unsupported slippery-slope arguments. See,
e.g., Ipsen v. Diamond Tree Experts, Inc., 2020 UT 30, ¶ 18, 466 P.3d
190. We disapprove of them even more when they are used to
curtail common-law-based individual rights. See In re Porter, 2001
UT 70, ¶ 7.
¶118 Consequently, we hold that appellants have met the
requirements we outlined above and that their petitions for sex
change should be granted.
CONCLUSION
¶119 The adjudication of sex-change petitions lies squarely
within the power granted to Utah courts by the Utah Constitution.
Our district courts have the authority to adjudicate such petitions
without any constitutional impediment. In order to prevail on
such a petition, a petitioner must: (1) show the petition is not
made for any ―wrongful or fraudulent purpose,‖ and (2) include
objective evidence about the sex change reflecting the petitioner‘s
identity, at minimum, in the form of evidence of appropriate
clinical care or treatment for gender transitioning or change,
provided by a licensed medical professional.
¶120 Mr. Childers-Gray and Ms. Rice have met these
requirements. Therefore, we reverse and remand this case with
instructions to enter orders granting their sex-change petitions.
CHIEF JUSTICE DURRANT, concurring in part, dissenting in part,
and concurring in the judgment:
¶121 Our task with this statute, as with any, is to endeavor to
discern legislative intent. We have traditionally employed a
number of tools in conducting this inquiry. We begin with the
words of the statute themselves and, where appropriate, look to
the structure of the statute, both internally and in relation to other
60
Cite as: 2021 UT 13CHIEF JUSTICE DURRANT, concurring in part, dissenting in part,
and concurring in the judgment
relevant statutes. A central focus of the debate between the
majority and the minority here is whether in using the term ―sex
change‖ the legislature intended to set a substantive standard for
when a birth certificate may be amended to reflect a different sex,
or rather, whether the legislature intended only to establish the
procedural mechanism for effecting a birth certificate amendment,
using the terms ―sex change― and ―name change‖ merely to
identify the two types of amendments for which that mechanism
may be employed.
¶122 I am persuaded by the majority‘s argument that the
legislature did not intend its use of the term ―sex change‖ in
section 26-2-1156 to be read as a substantive standard. I so
conclude for a number of reasons.
¶123 First, I am convinced by the majority‘s argument
regarding the broad reciprocity required by the statute. 57 Under
the statute, the registrar is required to amend a birth certificate
upon receipt not only of an order from a Utah district court, but
upon receipt of an order from other states or even Canadian
provinces. This is so regardless of the particular substantive
standards employed by these states or provinces with respect to
name or sex changes.58 This is not an instance of other
jurisdictions forcing their substantive law on Utah. It is an election
by the Utah legislature to defer to the law of other states and
provinces with respect to name and sex changes on birth
certificates. It suggests to me that the legislature was not so
concerned with setting a substantive standard by its use of the
terms ―name change‖ and ―sex change‖ as it was with identifying
the kinds of birth certificate amendments subject to the statute. It
further suggests to me that the legislature intended the statute to
function as a somewhat routine procedural mechanism by which
a birth certificate amendment may be effected, rather than as a
substantive direction as to what constitutes a sex change. Further,
the statute says nothing about the legal effect of a name or sex
designation on a birth certificate.
__________________________________________________________
56 UTAH CODE § 26-2-11.
57 Supra ¶ 78.
58 Supra ¶ 78 n.33.
61
IN RE SEX CHANGE
CHIEF JUSTICE DURRANT, concurring in part, dissenting in part,
and concurring in the judgment
¶124 Second, I find an important interpretive clue in the
statute‘s structure. As the majority notes, the terms ―sex change‖
and ―name change‖ are bundled together.59 The legislature makes
no attempt in the statute to distinguish them in any way,
including with respect to the standard of proof. Certainly, a sex
change is far more momentous than a name change. An
individual‘s sex is considerably more consequential, both in
substance and legal implication, than an individual‘s name. But
the fact that these two kinds of changes are very different matters,
both in magnitude and legal consequence, does not appear, given
how the statute is structured, to be the focus of the legislature.
Rather, the legislature appears to be focused on the way in which
they are similar—they are both identifiers on a birth certificate.
My reading of the statute suggests that for purposes of birth
certificate amendment, and I emphasize this limited scope, the
legislature intended that name changes and sex changes be
treated in the same way, including in the standard of proof to
which they are subject. The statute certainly includes nothing to
suggest they should be treated differently.
¶125 My third reason for joining the majority on this point is
also tied to the coupling of name change with sex change in the
statute. Certainly no one is suggesting that the term ―name
change,‖ as used in the statute, constitutes a substantive standard.
I think it unlikely, given the coupling of the two terms, that the
legislature intended the term ―sex change‖ to constitute a
substantive standard and not the term ―name change.‖ In sum, I
conclude that, although the statute does not purport to set forth a
substantive standard, either with respect to a name change or a
sex change, the legislature did, by coupling the terms, evince an
intent that they be treated in a similar manner, including in the
substantive standard to which they are subject.
¶126 While it seems clear, at least to me, that the legislature
intended that both kinds of birth certificate amendments be
subject to the same standard of proof, the question remains what
standard the legislature intended. The answer is an easy one with
respect to a name change. The standard for such a change is set
forth in section 42-1-2. A person seeking to have a name change
recognized by the state must establish that the change is sought
__________________________________________________________
59 Supra ¶ 79.
62
Cite as: 2021 UT 13CHIEF JUSTICE DURRANT, concurring in part, dissenting in part,
and concurring in the judgment
for ―proper cause.‖ As the majority notes, we have interpreted
―proper cause‖ in the name change context to require that the
change not be ―sought for a wrongful or fraudulent purpose.‖60
¶127 The legislature has passed no such statute with respect
to those seeking to have a sex change recognized by the state.
Given the structure of section 26-2-11, which couples name and
sex changes and makes no attempt to suggest they should be
subject to different standards, I think it reasonable to conclude
that the legislature intended to impose no greater burden on those
seeking a name change on their birth certificate than those seeking
a sex change on their birth certificate. This may or may not be
good policy, but that is of no consequence for our interpretive
task. Our role is to ascertain legislative intent. And I see nothing
in the language or structure of the statute suggesting that the
legislature intended that the two types of birth certificate
amendments be subject to different standards of proof. I would
therefore employ the same proper cause standard the legislature
has explicitly adopted for name changes to those seeking to have
their birth certificate amended to reflect a sex change. And I
would interpret the term ―proper cause‖ for purposes of a sex
change amendment to a birth certificate in the same way we have
interpreted that term in the name change context—to require that
the petitioner show the change is not sought for a wrongful or
fraudulent purpose.
¶128 While everything I have written to this point is
consistent with and supportive of the majority opinion, I do part
paths in some respects.
¶129 I would not, as does the majority, invoke our common
law authority in this case, except to the extent that I would look to
our caselaw on the question of how we have interpreted the
statutory standard of proper cause in the name change context. In
other words, I do not think it necessary for us to rely upon the
majority‘s argument that, by presupposing a district court‘s
authority to order name and sex changes the legislature
―conferr[ed] on sex-change adjudication the common-law
__________________________________________________________
60 Supra ¶ 51.
63
IN RE SEX CHANGE
CHIEF JUSTICE DURRANT, concurring in part, dissenting in part,
and concurring in the judgment
authority existing with respect to name-change adjudication.‖61 I
see the problem more as one of statutory interpretation.
¶130 In summary, my view of the appropriate interpretation
of the statute proceeds as follows: (1) although the structure of
section 26-2-11 indicates a legislative intent that name and sex
change amendments to a birth certificate be subject to the same
procedural mechanism and the same standard of proof, the
statute does not provide that standard; (2) section 42-1-2 does,
however, provide a standard for a name change – proper cause;
(3) in light of the legislature‘s apparent intent that name and sex
changes be treated uniformly, I would apply this same proper
cause standard to those seeking to amend their birth certificate to
reflect a sex change. In other words, rather than looking to the
common law, I would look to section 42-1-2 for the appropriate
standard. Although the majority does rely upon section 41-2-2 for
the first part of its proposed standard, it relies solely upon the
common law for the second part.62
¶131 The majority articulates its two-part standard in this
way: first, sex-change petitions ―should generally be granted
unless sought for a wrongful or fraudulent purpose‖;63 and
second, ―they are supported by objective evidence of a sex change,
which includes, at minimum, evidence of appropriate clinical care
or treatment for gender transitioning or change, provided by a
licensed medical professional.‖64 I would characterize the
applicable standard differently. In order to more closely parallel
the statutory standard for name changes, I would stop at the
majority‘s first prong. So my proposed standard would simply be
that a person seeking a birth certificate amendment to reflect a sex
change must establish that the change is sought for proper cause.
And I would interpret the term ―proper cause‖ as does the
majority, and as our court has done in the past, to mean that the
change is not sought for a wrongful or fraudulent purpose.
__________________________________________________________
61 Supra ¶ 16.
62 Supra ¶ 18.
63 Supra ¶¶ 103, 112 (citations omitted).
64 Supra ¶ 18.
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¶132 But rather than requiring objective evidence of
treatment as an independent second requirement, I would
characterize such evidence as one category of evidence that may
be employed by a petitioner in order to establish proper cause.
And I would conclude that the two petitioners in the case before
us have provided more than ample evidence, medical and
otherwise, of proper cause. So I would not set forth a definitive
minimum standard for what must be shown to establish proper
cause by a petitioner seeking a sex change amendment to a birth
certificate. The structure of section 26-2-11, which presupposes the
authority of the court to issue name and sex change orders
without providing a standard of proof, as well the legislature‘s
use of the broad ―probable cause‖ standard in section 42-2-1
(which I argue is the most likely candidate for the legislature‘s
intended standard for sex changes) both suggest a legislative
intent that district court judges be accorded broad discretion with
respect to these matters. I would allow the parameters of the
scope and nature of the evidence necessary to establish proper
cause under section 26-2-11 to develop over time, as district court
judges exercise this broad discretion.
¶133 I have made my best effort to read the tea leaves of the
legislature‘s intent in passing section 26-2-11. And I have great
respect for the scholarly and thorough opinions authored by
Justice Himonas and Associate Chief Justice Lee. They are both
sincere attempts to answer a difficult interpretative question. But
it should be noted that, despite our best efforts, in the end it is, as
it should be, the legislature that has the last word. If it disagrees
with the interpretations of section 26-2-11 we have advanced in
these three opinions, the legislature of course has the power to
amend the statute or pass an altogether different statute. And in
the event it decides to do either, these opinions should prove
helpful in that effort because, taken together, they provide a
rigorous and in-depth exploration of both sides of the issues in
this important area of the law.
ASSOCIATE CHIEF JUSTICE LEE, dissenting:
¶134 I endorse the values of personal dignity and
individual determination. And I give voice to those values in the
respect I pay to others. I have paid and will pay such respect in
my personal interactions with transgender persons—in using
their preferred names and pronouns and otherwise respecting
their right of self-determination.
65
IN RE SEX CHANGE
ASSOCIATE CHIEF JUSTICE LEE, dissenting
¶135 I have personal, moral grounds for so doing. Yet this
is not a case about personal interactions or individual morality. It
is a case about government records, and the legal grounds for
amending them. Those grounds are controlled by law. And the
law in question leaves no room for the decision made by this court
today.
¶136 Since 1975 the Utah Code has provided for a court
order directing an amendment to a birth certificate‘s ―sex‖
designation. For decades this designation has been understood as
a reference to biological sex—a determination made at birth,
based on physical observation. But the petitioners ask us to
transform the designation of biological sex into a designation of
gender identity. They assert that their gender identity is not in line
with their biological sex at birth. And they ask us to reform our
law in a manner allowing an amended entry on their birth
certificates reflecting their gender identity instead of their
biological sex.
¶137 Today a majority of our court accepts that invitation.
It takes the statutory reference to sex as an invitation for our court
to inject new meaning into the statute by making common-law
policy in this field. Supra ¶ 16. And it exercises that policymaking
power by establishing a new law that is as permissive as any law
in any state in the union, under a right to an amended birth
certificate for any person who has received ―appropriate clinical
care or treatment for gender transitioning or change.‖ Supra ¶ 112.
¶138 The court claims to be establishing an ―objective‖
standard based on medical evidence. Supra ¶ 112. But the
majority‘s standard does not require a medical diagnosis or
prescribe an objective benchmark. It provides for an amendment
to a birth certificate whenever a petitioner asserts that he or she
has received ―appropriate‖ care or treatment for ―gender
transitioning.‖ See supra ¶ 112; see also supra ¶ 105 n.46 (citing the
DSM-5 criteria for diagnosis of ―gender dysphoria‖ but stating a
standard that requires no diagnosis but only a showing of
―appropriate clinical care or treatment‖). This is not the statutory
concept of sex for a Utah birth certificate. It is a complete
transformation of that longstanding concept by a majority of this
court.
¶139 I dissent from this decision. It is a double departure
from longstanding limits on our judicial power. The court is
exceeding the bounds of our jurisdiction in deciding a case in
which there is no adverse party—only a request from those
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Cite as: 2021 UT 13ASSOCIATE CHIEF JUSTICE LEE, dissenting
seeking an amendment to their birth certificates. And it is
overriding the terms of the Utah Code in treating a reference to a
change in the biological sex determination made at birth as an
invitation for our courts to make new law in an exercise of
common-law policymaking power.
¶140 This decades-old statute is not a delegation of
common-law policymaking power. It is a reflection of the settled
understanding of the concept of sex as reflected on a birth
certificate. The underlying concept is clear with regard to the
designation made at birth, as the majority itself concedes. See
supra ¶ 85 (acknowledging that it is ―generally understood‖ that
the designation of sex at birth ―is based on a medical observation
of genitalia and physical characteristics‖); supra ¶ 89 n.40 (noting
that Utah law contemplates that ―health care professionals‖ will
submit birth ―certificates based on purely medical observations‖);
supra ¶ 104 (conceding that ―a person‘s initial sex‖ designation is
based on ―a medical evaluation made according to objective
observation at birth‖). And the same concept should be
understood to be carried forward to the analysis of the basis for an
order for an amendment to that same designation.
¶141 The statute itself does not expressly articulate a
―substantive standard‖ for entry of the order. See supra ¶ 54. But
the statute does speak to the type or ―kind[] of birth certificate‖
designation that is subject to change under the statute. Supra ¶ 78
n.33. And the lack of any further standard accordingly cuts
against the notion of legislative delegation of common-law
policymaking power. It suggests that the statute was plowing no
new ground, and thus that the contemplated order for an
amendment to a birth certificate is to be based on the same type of
sex designation made at birth.
¶142 This follows from the canon of consistent meaning—
the presumption that the established meaning of a word in a
given body of law carries over to other uses of the same term used
elsewhere within that same law. See Cannon v. McDonald, 615 P.2d
1268, 1270 (Utah 1980). It is also reinforced by the non-delegation
doctrine set forth in our case law, see State v. Briggs, 2008 UT 83,
¶¶ 13–14, 199 P.3d 935, and the settled presumption that our
legislature is not hiding ―elephants in mouseholes.‖ Rutherford v.
Talisker Canyons Fin., Co., LLC, 2019 UT 27, ¶ 53, 445 P.3d 474(quoting Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001)).
A delegation of common-law power to reform the traditional
67
IN RE SEX CHANGE
ASSOCIATE CHIEF JUSTICE LEE, dissenting
concept of biological sex would be a large elephant. And a statute
speaking only to the effect of a court order is a tiny mousehole.
¶143 The problem is reinforced (not averted) by the fact
that the statutory reference to a change in a person‘s ―sex‖
designation is ―combined‖ with a reference to ―name change.‖
Supra ¶ 50. There is in fact a ―common law‖ understanding of
―name change.‖ But there is no common law governing any
change to the sex designation on a birth certificate. And the
majority opinion in this case is not applying an established
common-law standard (under the law of name changes or
otherwise); it is formulating its own new standard out of whole
cloth. For that reason the cited distinction cuts against the
majority‘s approach. The legislative decision to ―combine‖ an
established common-law term with a term that has an established
meaning in statutory administration indicates an intent to
attribute common-law meaning to the common-law term and
statutory meaning to the statutory term.
¶144 The court‘s contrary conclusion is no small matter. On
its face, the majority decision is limited to birth certificates. But a
birth certificate is an indicator of a person‘s sex when presented to
our schools65 and other institutions. And the majority decision
will have far-reaching implications in these and other spaces. It
seems destined, for example, to affect spaces traditionally
reserved for biological girls and women—sex-segregated sports
leagues,66 school locker rooms, 67 and shelters designed as safe
__________________________________________________________
65 See UTAH CODE § 53G-6-603(1) (conditioning enrollment in
public schools on presentation of ―a certified copy of the student‘s
birth certificate, or other reliable proof of the student‘s identity
and age, together with an affidavit explaining the inability to
produce a copy of the birth certificate.‖)
66 This is a difficult issue that is sure to be affected by our
decision. And clearly there are interests on the other side of the
ledger. See Soule v. Conn. Ass’n of Sch.’s, No. 3:20-CV-00201-RNC
(D. Conn. filed Feb. 12, 2020) (alleging that the practice of
permitting biological males to compete in female athletic
competitions violates Title IX); H.B. 1572, 111th Gen. Assemb.,
Reg. Sess. (Tenn. 2019) (proposing that publicly funded schools
require that ―each athlete participating in . . . athletic or sporting
event[s] participate[] with and compete[] against other athletes
based on the athlete‘s biological sex as indicated on the athlete‘s
(continued . . .)
68
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spaces for victims of sex abuse.68 In these and other spaces, the
court‘s sweeping standard puts a heavy thumb on the scale of a
original birth certificate issued at the time of birth‖); H.B. 500, 65th
Leg., 2nd Reg. Sess. (Idaho 2020) (codified at IDAHO CODE ANN.
§ 33-6203 (West 2020) (requiring public schools to designate
athletic teams ―based on biological sex‖).
67 See A.H. ex rel. Handling v. Minersville Area Sch. Dist., 408
F.Supp.3d 536, 544, 582 (M.D. Pa. 2019) (holding that the plaintiff,
whose birth certificate was ―formally changed from male to
female‖ was entitled ―to use the restroom corresponding to her
gender identity on all school-field trips‖); M.A.B. v. Board of Educ.
of Talbot Cnty., 286 F.Supp.3d 704, 709–10 (D. Md. 2018) (alleging
that a school‘s locker room policy, which requires students to use
a locker room that is consistent with their biological sex, violates
Title IX, the Equal Protection Clause, and the Maryland
Declaration of Rights); Ann. E. Marimow, Battle Over Transgender
Student Rights Moves to High School Locker Rooms, WASH. POST
(Apr. 26, 2018), https://www.washingtonpost.com/public-
safety/battle-over-transgender-student-rights-moves-to-high-
school-locker-rooms/2018/04/25/b319365a-3f29-11e8-974f-
aacd97698cef_story.html (discussing the significance of the battle
over high school locker rooms).
68 See McGee v. Poverello House, 1:18-CV-00768-LJO-SAB, 2019
WL 5596875, at *1–2, 9 (E.D. Cal. Oct. 30, 2019), ECF No. 46
(complaint filed by a group of homeless women against
organizations that provided temporary shelters for those ―who
have suffered . . . sexual abuse‖; asserting claims arising from a
decision to allow a transgender person who was born a male but
identified as a female ―to shower with‖ the sex-abuse-victim
plaintiffs); Joseph Brean, Forced to Share a Room with Transgender
Woman in Toronto Shelter, Sex Abuse Victim Files Human Rights
Complaint, NAT‘L POST (Aug. 2, 2018),
https://nationalpost.com/news/canada/kristi-hanna-human-
rights-complaint-transgender-woman-toronto-shelter (discussing
a human rights complaint by a sex-abuse victim against a Toronto
shelter for ―admitt[ing] a male bodied transgender into the safety
of [her] home, bedroom and safe spaces,‖ causing ―stress, anxiety,
rape flashbacks, symptoms of post-traumatic stress disorder and
sleep deprivation‖).
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IN RE SEX CHANGE
ASSOCIATE CHIEF JUSTICE LEE, dissenting
range of sensitive matters of enormous significance to our
society.69
¶145 The question of whether and how to balance these
interests in the adoption of a new law in this field is a matter for
the Utah legislature. That is a political body representing a wide
range of ideologies and interests, with the manner and means of
amending the laws on the books based on input from a diverse
constituency and a wide range of views—through committee
hearings, open debate, and a public vote. 70 This court is in no such
__________________________________________________________
69 The district court catalogued a series of these matters—
raising concerns about the effects of a birth certificate amendment
based on a person‘s ―gender identity‖ on ―insurance rates,‖
―preferred contracting‖ (under affirmative action laws), athletic
competitions, prisons, and more. Yet the majority brushes these
concerns aside as ―suppositions‖ and ―guesswork,‖ or ―slippery-
slope arguments with no factual basis.‖ Supra ¶¶ 116–17. It also
criticizes me for identifying a range of parallel concerns,
suggesting that I have somehow crossed a line as an advocate for
―the interests of the State.‖ Supra ¶ 3.
This is unfair and unfounded. No adverse party has been
given the opportunity to present any adverse position on the
merits in this case. And with that in mind, Judge Hyde and I are
both engaged in a similar endeavor—not in arguing for a
preferred disposition or advocating for any particular view, but in
identifying the third-party interests that are resolved by but have
not been heard by the court. In my view it is not a vice but a
virtue for a judge to highlight these concerns in the course of
challenging the propriety of our exercise of jurisdiction.
The majority‘s approach on these matters is also riddled with
irony. On one hand, the court insists that the traditional adversary
model is no jurisdictional barrier to its determination to reach the
merits of the question presented. On the other hand, the court
takes the opposite tack when it comes to its analysis of the
questions presented on the merits—asserting that any contrary
concerns are off the table, as unbriefed by any adversary party.
The court can‘t have it both ways. Either adverseness is required
or it isn‘t.
Our Utah legislature is certainly in a position to extend our
70
law to capture ―gender identity‖ instead of ―sex‖ on an
amendment to a birth certificate, or to take other measures aimed
(continued . . .)
70
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position71—least of all in a ―case‖ like this one, in which the court
has heard from only one side of this difficult problem.
¶146 We lack the judicial power to make this decision in a
case in which there is only a petitioning party and no adversary.
Our courts have long been limited to the adjudication of
adversary proceedings—cases involving the establishment of a
petitioning party‘s rights at the expense of an adversary. The
court overrides that longstanding limit—and the decades of
precedent that establish it—in holding that our courts now have
the authority to resolve any ex parte request for a change to any
matter of ―legal status or identification.‖ Supra ¶ 15. This new
standard of jurisdiction is limitless. It obliterates the long-settled
line between executive and judicial power.
at balancing the competing interests implicated by this case. But
to date, it has not done so. In 2018 and 2019, the legislature
considered proposed amendments to the birth certificate law. H.B.
153, 2019 Leg., Gen. Sess. (Utah 2019); S.B. 138, 2018 Leg., Gen.
Sess. (Utah 2018). And in the 2021 session, it considered a bill that
would have regulated the eligibility of transgender persons to
participate in sex-segregated sports in Utah. H.B. 302, 2021 Leg.,
Gen. Sess. (Utah 2021). None of these proposals was enacted into
law or even came to a final floor vote. And none of these bills
proposed to allow a birth certificate amendment based on
evidence of appropriate care or treatment for gender transitioning
or change.
Our court is thus getting ahead of the people‘s representatives
in the legislature. And it is doing so without the benefit of any
open, public debate or opportunity for input from competing
stakeholders.
71 Increasingly our society is giving in to this impulse. Too
often we are caving to the pressure to ―solv[e] political differences
. . . through litigation rather than through legislation and
elections.‖ See In re Trump, 958 F.3d 274, 293 (4th Cir. 2020)
(Wilkinson, J., dissenting), vacated as moot by Trump v. D.C., 141 S.
Ct. 1262 (2021). This is troubling. It is a ―profoundly anti-
democratic development,‖ id.—a perilous shift of power from the
people and their representatives to a body of unelected officials
whose black robes have long given us the appearance of
impartiality. That appearance is fragile. We should do all we can
to retain it.
71
IN RE SEX CHANGE
ASSOCIATE CHIEF JUSTICE LEE, dissenting
¶147 Prudential considerations would call for an order for
adversary briefing even if the constitutional limits on our power
did not. When other courts have been faced with the prospect of
resolving an important legal question with briefing from only one
side, they consistently have appointed an amicus to represent and
advance the views of the missing opposition. This seems crucial in
a case like this one, in which there clearly are interests on both
sides, and the court is resolving them as a matter of common-law
policymaking. The decision to plow ahead without adversary
briefing is unwise even if it is not an excess of our power.
¶148 The majority‘s decision may be perceived by some as
a triumph of freedom and self-determination. It cannot be
applauded, however, as a triumph for our Utah laws or
constitution. The majority is effectively rewriting a statute enacted
by the legislature in 1975. And it is doing so in a case in which we
lack any adverse party or adversary briefing—under a novel
formulation of our courts‘ jurisdiction that effectively overrides
the long-settled limits on the judicial power.
¶149 I respectfully dissent from this decision. I explain my
reasoning further in the paragraphs below. First, I develop the
basis for the conclusion that we should not be resolving this
matter in a proceeding in which there is no adverse party and no
adversary briefing. Second, I demonstrate that the statute
approving an order for a change to the designation of a person‘s
―sex‖ on a birth certificate is speaking to biological sex and is not
delegating to this court the power to establish an evolving
standard of ―gender identity.‖ Finally, I close with some final
observations about the nature of my objections to the
extraordinary decision made by the court today.
I. JURISDICTION
¶150 ―The powers of the government‖ of the State of Utah
are ―divided into three distinct departments‖—the legislative,
executive, and judicial. UTAH CONST. art. V, § 1. Each branch is
given distinct powers under the terms of the Utah Constitution.
¶151 The ―[l]egislative power‖ is delegated to the Utah
Legislature under article VI. Id. art. VI, § 1. Such power is the
authority to enact legislation by ―bill or joint resolution . . . passed
. . . with the assent of the majority of all the members elected to
each house of the Legislature.‖ Id. art. VI, § 22. Subject to further
terms and conditions set forth in article VI, the legislature has the
power to ―promulgat[e] . . . laws of general applicability . . . based
on the weighing of broad, competing policy considerations.‖
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Carter v. Lehi City, 2012 UT 2, ¶ 34, 269 P.3d 141; see also Rampton v.
Barlow, 464 P.2d 378, 381 (Utah 1970) (speaking of the legislative
power as ―the authority to make laws‖).
¶152 The ―executive power‖ in Utah is delegated to five
―elective constitutional officers‖: ―Governor, Lieutenant
Governor, State Auditor, State Treasurer, and Attorney General.‖
UTAH CONST. art. VII, § 1. The Governor is given the specific
―executive power‖ to ―see that the laws are faithfully executed,‖
id. art. VII, § 5, while the Attorney General is designated as ―the
legal adviser of the State officers‖ and directed to ―perform such
other duties as provided by law.‖ Id. art. VII, § 16. These executive
powers involve decisions based on ―individualized, case-specific
considerations as to whether the acts of a particular person fall
within the general rule adopted by the legislature.‖ Carter, 2012
UT 2, ¶ 47. Executive power thus ―encompasses prosecutorial or
administrative acts aimed at applying the law to particular
individuals or groups based on individual facts and
circumstances.‖ Id. ¶ 34.
¶153 The ―judicial power‖ under our constitution is ―vested
in a Supreme Court, in a trial court of general jurisdiction known
as the district court, and in such other courts as the Legislature by
statute may establish.‖ UTAH CONST. art. VIII, § 1. This power ―is
generally understood to be the power to hear and determine
controversies between adverse parties and questions in litigation.‖
Citizens’ Club v. Welling, 27 P.2d 23, 26 (Utah 1933). The judicial
power is thus distinct from the legislative or executive power. We
have long held that our courts ―have no power to decide abstract
questions or to render declaratory judgments[] in the absence of
an actual controversy directly involving rights‖ of adverse parties.
Univ. of Utah v. Indus. Comm’n of Utah, 229 P. 1103, 1104 (1924).
This is because the promulgation of such general, abstract rules is
a legislative prerogative.72
¶154 Our courts are similarly foreclosed from exercising
executive power. We do not apply the law to individual parties, as
__________________________________________________________
72 See Baker v. Carlson, 2018 UT 59, ¶ 13, 437 P.3d 333(recognizing that the ―two key hallmarks of legislative power‖ are
―the promulgation of laws of general applicability‖ and the
―weighing of broad, competing policy considerations‖ (citations
and internal quotation marks omitted)).
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IN RE SEX CHANGE
ASSOCIATE CHIEF JUSTICE LEE, dissenting
by issuing or amending a government record, license, or permit.73
Those are inquisitorial functions, which our courts are ill-
equipped to perform. The judicial power is the power to
adjudicate rights in an adversary posture. Our courts establish the
rights of petitioning parties upon the satisfaction of responding
parties.
¶155 This is a fundamental tenet of the separation of
powers under the Utah Constitution. It has deep roots in our
Anglo-American legal tradition, tracing at least as far back as
Blackstone‘s Commentaries. Blackstone put the point in terms of
―three constituent parts‖ of a judicial proceeding: ―the actor, or
plaintiff, who complains of an injury done; the reus, or defendant,
who is called upon to make satisfaction for it; and the judex, or
judicial power.‖74
¶156 This formulation became embedded in our American
law from the beginning of the republic.75 It is also a deeply rooted
__________________________________________________________
73 See Carter v. Lehi City, 2012 UT 2, ¶ 47, 269 P.3d 141 (―[T]he
executive [power] encompasses not just prosecutorial decisions
involving proposed sanctions, but parallel acts like permitting or
licensing in circumstances where the law opts for that form of
regulation.‖).
74 3 WILLIAM BLACKSTONE, COMMENTARIES *25; see also 1
EDWARD COKE, THE FIRST PART OF THE INSTITUTES OF THE LAWES OF
ENGLAND 39a (London 1628) (―[I]n every judgment there ought to
be three persons, actor, reus, and judex.‖); Caleb Nelson, Sovereign
Immunity as a Doctrine of Personal Jurisdiction, 115 HARV. L. REV.
1559, 1568 & n.29 (2002) (―For centuries, Anglo-American lawyers
have thought that the very existence of most kinds of judicial
proceedings depends upon the presence (actual or constructive) of
adverse parties.‖); id. at 1568 n.29.
75 See The Hon. John Marshall, Speech Delivered in the House of
Representatives, of the United States, on the Resolutions of the Hon.
Edward Livingston (Mar. 7, 1800), in 4 THE PAPERS OF JOHN
MARSHALL 82, 96 (Charles T. Cullen ed., 1984) (interpreting the
judicial power over a ―Case[]‖ in Article III of the United States
Constitutional to require ―parties to come to court, who can be
reached by its process, and bound by its power; whose rights
admit of ultimate decision by a tribunal to which they are bound
to submit‖); United States v. Ferreira, 54 U.S. 40, 46 (1851) (stating
that certain determinations of treaty claims were not cases
(continued . . .)
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in our Utah law on the separation of powers. For many decades
this court repeatedly has held that the judicial power is marked by
and limited to the disposition of controversies, or in other words
the resolution of adverse interests.76 We have emphasized the
because, among other reasons, the United States was not
authorized to appear as a party to oppose the claim); Marye v.
Parsons, 114 U.S. 325, 330 (1885) (―[N]o court sits to determine
questions of law in thesi. There must be a litigation upon actual
transactions between real parties, growing out of a controversy
affecting legal or equitable rights as to person or property.‖);
California v. San Pablo & T.R. Co., 149 U.S. 308, 314 (1893) (―The
duty of this court, as of every judicial tribunal, is limited to
determining rights of persons or of property which are actually
controverted in the particular case before it.‖); United States v.
Duell, 172 U.S. 576, 588 (1899) (concluding that the District of
Columbia Court of Appeals could review a decision of the
Commissioner of Patents; stating that ―the proceeding in the court
[of appeals]‖ on an appeal in an interference controversy
―presents all the features of a civil case—a plaintiff, a defendant
and a judge‖); Muskrat v. United States, 219 U.S. 346, 361 (1911)
(stating that the judicial power ―is the right to determine actual
controversies arising between adverse litigants, duly instituted in
courts of proper jurisdiction‖).
76 See Univ. of Utah v. Indus. Comm’n of Utah, 229 P. 1103, 1104
(Utah 1924) (concluding that ―[e]ven courts of general jurisdiction
have no power to decide abstract questions or to render
declaratory judgments, in the absence of an actual controversy
directly involving rights‖); Citizens’ Club v. Welling, 27 P.2d 23, 26
(Utah 1933) (establishing that the judiciary has the ―power to hear
and determine controversies between adverse parties and questions
in litigation‖ (emphasis added)); Salt Lake City v. Ohms, 881 P.2d
844, 849 (Utah 1994) (recognizing that the ―judicial power of
courts‖ is ―generally understood to be the power to hear and
determine controversies between adverse parties‖); Judd v. Drezga,
2004 UT 91, ¶ 37, 103 P.3d 135 (explaining that the ―judicial power
is ‗the power to hear and determine controversies between
adverse parties and questions in litigation‘‖) (quoting Timpanogos
Planning & Water Mgmt. Agency v. Cent. Utah Water Conservancy
Dist., 690 P.2d 562, 569 (Utah 1984)); State v. Guard, 2015 UT 96,
¶ 59, 371 P.3d 1 (clarifying that under our judicial power ―we
(continued . . .)
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ASSOCIATE CHIEF JUSTICE LEE, dissenting
―duty‖ of this court ―to vigilantly follow the strictures‖ of the
constitutional limits on our power. Utah Transit Auth. v. Local 382
of Amalgamated Transit Union, 2012 UT 75, ¶ 26 289 P.3d 582.
¶157 These bedrock limitations on the judicial power have
come under recent challenge. In an article in the Yale Law Journal,
James E. Pfander and Daniel D. Birk identified examples of
purportedly non-contentious matters heard historically by our
courts, including cases involving bankruptcy petitions,
receiverships, warrants, and petitions for pensions and
citizenship. James E. Pfander & Daniel D. Birk, Article III Judicial
Power, the Adverse-Party Requirement, and Non-contentious
Jurisdiction, 124 YALE L.J. 1346 (2015). These authors cited these
and other examples in support of the view that the judicial power
is not limited to the resolution of ―adverse‖ disputes. Id. at 1346
(asserting that the judicial power encompasses ―power over
disputes between adverse parties‖ and ―power over ex parte and
other uncontested proceedings‖). They thus challenged the
viability of an established justiciability doctrine by contending
that the federal courts may ―plausibly‖ be viewed to have been
―given . . . the authority to exercise judicial judgment in the
administration of federal law ‗cases‘ on an ex parte or non-
contentious basis‖ as assigned by Congress. Id. at 1425.
¶158 Two members of our court have echoed this challenge
in recent cases. Noting that our courts have long been involved in
some proceedings that have the ―potential to lack adverse
parties,‖ two justices have suggested that our Utah Constitution
may not limit our courts to the disposition of adverse
controversies. In re Gestational Agreement, 2019 UT 40, ¶ 63, 449
P.3d 69 (Pearce, J., joined by Himonas, J., concurring). Citing
matters like ―adoptions, name changes, probate, and
guardianship matters,‖ which may be uncontested, they have
suggested that our longstanding requirement of adverseness may
be a mistaken relic in our case law, not a constitutional command.
See id. ¶¶ 63–71 (questioning ―whether the adversity that so often
exists in judicial proceedings is constitutionally required‖).
resolve concrete disputes presented by parties‖ (emphasis added));
State v. Robertson, 2017 UT 27, ¶ 40, 438 P.3d 491 (stating that the
judicial power ―is limited to resolving specific disputes between
parties as to the applicability of the law to their actions‖ (citation
and internal quotation marks omitted)).
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¶159 Today‘s majority finds ―much to commend‖ in this
challenge to our longstanding precedent in this important field.
Supra ¶ 20 n.13. And it proceeds to the conclusion that we have
jurisdiction to resolve the ―case‖ before us despite the lack of
adverseness—even while insisting that there is no need for us to
―reach the issue‖ of whether to abandon our longstanding case
law. Supra ¶ 20 n.13.
¶160 The court‘s holding, however, effectively erases the
traditional, longstanding requirement of adverseness. In its place,
the court introduces a new standard: Our courts may exercise
jurisdiction over any petition aimed at changing a party‘s ―legal
status or identification.‖ Supra ¶ 21. But this new standard has no
bounds. It opens the door to judicial resolution of any of a range
of matters falling within the power of the executive.
¶161 This is troubling. It is also unsupported by the cited
examples of purportedly non-adversary proceedings. The cited
examples are adversarial in the above-noted sense—they involve
the adjudication of a petitioning party‘s rights at the expense of a
responding party. That is all that is required to justify the exercise
of judicial power. Adverse argument is not required, just the
disposition of adverse interests.
¶162 This is clear from the above-noted Blackstone
formulation—in the requirement of an ―actor, or plaintiff, who
complains of an injury done,‖ and a ―reus, or defendant, who is
called upon to make satisfaction for it.‖ 3 WILLIAM BLACKSTONE,
COMMENTARIES *25 (third emphasis added). Our courts have
power to resolve this sort of controversy or clash of adverse
interests. We exercise judicial power when we establish one
party‘s interest at the expense of another party (who makes
―satisfaction‖ of the pleading party‘s interest).
¶163 This is not what our court is being asked to do here.
Here we are being asked to alter or establish these plaintiffs‘
rights under the law in general. No adverse party‘s rights are
extinguished or adjudicated in the course of the requested
decision. And that renders this a non-judicial proceeding—a
matter akin to a request for issuance of or amendment to a
government document, license, or permit.
¶164 We should dismiss this case for lack of jurisdiction
under this deeply rooted understanding of the judicial power.
And even if we could somehow overcome this barrier as a matter
of our jurisdiction, we should nonetheless order adversary
briefing as a matter of discretion or prudence.
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IN RE SEX CHANGE
ASSOCIATE CHIEF JUSTICE LEE, dissenting
¶165 I highlight the grounds for my conclusions below in
(a) noting that the historical understanding of the judicial power
requires a disposition of adverse interests (but not always adverse
argument); (b) explaining that the cited examples of non-
contentious proceedings fit this understanding of adverseness; (c)
demonstrating that historical name-change proceedings do not
establish a basis for the court‘s novel formulation of the judicial
power—a formulation that effectively overrules decades of our
precedent; and (d) emphasizing the prudential need for notice
and adversary briefing even if it is not required for our exercise of
jurisdiction.
A. The Judicial Power and the Disposition of Adverse
Interests
¶166 Not every judicial act involves a disposition after
adverse argument by opposing parties. Our courts have long been
involved in proceedings in which opposing interests are forfeited
or waived. And the judicial resolution of these matters may be
viewed to ―fall within the ‗judicial power‘‖ despite the lack of
adversary briefing. In re Gestational Agreement, 2019 UT 40, ¶ 13,
449 P.3d 69.
¶167 This provides a credible basis for skepticism of the
notion of a requirement of adverse argument. But it is no basis for
repudiation of the adverseness requirement altogether. It just
highlights the need for clarification of the nature of the
requirement.
¶168 The clarification is highlighted in a recent article
responding to Pfander and Birk‘s Yale Law Journal piece. In the
response article, Ann Woolhandler addresses the ―non-
contentious‖ litigation examples identified by Pfander and Birk.
She notes that the historical cases distinguish two aspects of
adverseness: (a) ―a requirement of adverse legal interests that will
be affected by a decree‖; and (b) ―a requirement of adverse
advocacy interests or adverse legal arguments.‖77 And she
establishes that only the former is required as a matter of
historical practice.
¶169 A judicial case involves the disposition of adverse
interests upon notice and an opportunity for those interests to be
__________________________________________________________
77 Ann Woolhandler, Adverse Interests and Article III, 111 NW. U.
L. REV. 1025, 1032 (2017).
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heard. But a court‘s jurisdiction does not disappear if adverse
parties fail to or agree not to appear in opposition. 78 The failure to
appear does not make the case non-adversarial; it just makes it
uncontested.79
B. Uncontested Proceedings as Adverse
¶170 Judges resolve uncontested adversary proceedings
with regularity. Collection actions are a common example. Other
examples include some of the historical cases cited as exceptions,
like uncontested adoptions and probate proceedings. An
uncontested adoption is an adversary proceeding in the sense that
there is a petitioning party (the adoptive parents) whose rights are
established at the expense of an adverse party (the birth parents,
whose rights are terminated). A probate action is also adversary—
it is initiated by notice to the public of the pendency of an action
in which any and all claimed interests in the res (the estate) are
adjudicated.80
¶171 Such actions are thus adverse in the sense that a
plaintiff‘s rights are established at the expense of a defendant.
__________________________________________________________
78 See id. at 1032–35 (explaining that the exercise of judicial
power requires ―adverse legal interests that will be affected by a
decree;‖ notice to adverse parties; an opportunity for adverse
argument; and a request for entry of a judgment (emphasis
added)).
79 Id. at 1032–33 (―A prototypical case involves some issues as
to which the parties have both adverse legal interests as well as
adverse arguments. Adverse legal arguments, however, are
clearly not sufficient for a case, nor are they always necessary. By
contrast, adverse legal interests are necessary and often
sufficient. . . . [A] case requires a clash of legal interests but does
not always require a clash of argument.‖).
80 Id. at 1034 (noting that ―in rem-type proceedings necessarily
include the potential for a form of default, just as in personam
actions do‖); id. at 1043 (explaining that ―non-contentious,‖ ―in
rem-type proceedings‖ ―all responded to a need to resolve
conflicting claims to property that were difficult to adjust by
agreement, provided service comporting with procedural due
process, and could affect claims to the property even if parties
failed to appear‖ and that ―those with adverse interests frequently
appeared to make adverse arguments‖).
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IN RE SEX CHANGE
ASSOCIATE CHIEF JUSTICE LEE, dissenting
There is an ―actor, or plaintiff‖ and a ―reus, or defendant,‖ and the
―judex, or judicial power‖ involves the establishment of the
plaintiff‘s legal interests at the expense of or upon ―satisfaction‖
by the defendant. 3 WILLIAM BLACKSTONE, COMMENTARIES *25.
None of this requires adverse legal argument, however; the
defendant‘s interests may be disposed of by waiver or default.
¶172 The Woolhandler article demonstrates that the
historical examples in the Pfander and Birk piece are along these
lines—and do not establish that adverseness is not an element of
traditional judicial power.81 As to bankruptcy petitions and
receiverships, Woolhandler explains that these are forms of in rem
jurisdiction, in which the courts were resolving disputed interests
in a given matter upon notice and opportunity for adverse
argument.82 As to petitions for the determination of a right to a
pension, the author cites the determination in Hayburn’s Case that
an ex parte determination of a claim by a pensioner would not be
an act in a ―judicial nature,‖83 and emphasizes that many of the
historical cases were resolved by ―commissioners‖ rather than
judges exercising judicial power under Article III.84 Finally, the
author concedes that petitions for naturalization of citizenship are
perhaps the ―best example‖ of non-contentious jurisdiction.85 But
she emphasizes that judicial disposition of these petitions
involved a recognition of a petitioning party‘s rights (citizenship)
at the expense of an adversary (the sovereign)—an adversary
__________________________________________________________
81 I am not ―overlook[ing] the arguments set forth in the cited
articles. Supra ¶ 30. I have considered them carefully. I just find
the Woolhandler account more complete and more persuasive—
and more in line with long-settled tenets of our jurisprudence.
82 Woolhandler, supra n.77 at 1036.
83 Id. at 1056; see also Hayburn’s Case, 2 U.S. 408, 410 (1792);
HENRY M. HART, JR., & HERBERT WECHSLER, THE FEDERAL COURTS
& THE FEDERAL SYSTEM 86 (7th ed. 2015) (stating that ―Hayburn‘s
Case . . . seems to reject rather decisively Congress‘ effort to enlist
federal courts to act as administrative agencies by applying law to
fact outside the context of a concrete dispute between adverse
parties.‖).
84 Woolhandler, supra n.77, at 1056.
85 Id.
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construct requiring ―notice to‖ and ―potential appearance by‖ the
United States government as the obvious ―adverse party.‖86
¶173 This basis for federal jurisdiction over naturalization
proceedings is reflected in the territorial court‘s decision in In re
Kanaka Nian, 21 P. 993 (Utah 1889)—a case cited by the majority in
support of its assertion of jurisdiction. See supra ¶ 67. This was
indeed a proceeding in the territorial court involving a petition for
naturalization of citizenship. But it provides no support for the
majority‘s assertion of jurisdiction over all changes to ―legal status
or identification‖ despite a lack of adverse interests. The United
States government was the adverse party in that case. This was an
adversary proceeding in which the applicant‘s citizenship was
established upon satisfaction of any contrary claim by the
government. Counsel ―were heard for and against the admission
of the applicant.‖ Id. at 993; see also id. at 994 (noting that the
petition ―was opposed . . . on the ground that [the petitioner] did
not appear to be possessed of sufficient intelligence to become a
citizen‖).
¶174 This view of naturalization proceedings is likewise
reflected in the Supreme Court‘s opinion in Tutun v. United States,
270 U.S. 568 (1926). There the Court noted that ―[t]he United
States is always a possible adverse party‖ in naturalization
proceedings. Id. at 577. And that framing is consistent with the
traditional understanding of adverseness—as a requirement of
adverse interests, not adverse argument.87
__________________________________________________________
86 Id.87 The majority responds by asserting that the ―distinction
between adverse ‗argument‘ and ‗interests‘ swallows itself‖
because ―a court could always identify a ‗possible‘ adverse party
for any matter before it.‖ Supra ¶ 27. But this misses the point of
the requirement of adverseness—and of the distinction between
adverse interest and adverse parties. An adverse proceeding
arises not upon ―mere speculation of possible adverse interests,‖
supra ¶ 27, but in a controversy in which the petitioning party‘s
interests are established at the expense of the responding party‘s
rights. When the government establishes a petitioning party‘s
rights in the abstract—in a non-adversary proceeding, as in the
issuance or amendment of a government record, license, or
permit—it is exercising executive power. The judicial power is
(continued . . .)
81
IN RE SEX CHANGE
ASSOCIATE CHIEF JUSTICE LEE, dissenting
¶175 This framework is also reinforced by our own
precedent, most recently in In re Gestational Agreement. In that case
we reinforced the longstanding general rule that our courts lack
jurisdiction ―in ‗the absence of any justiciable controversy
between adverse parties.‘‖ 2019 UT 40, ¶ 12 (quoting Carlton v.
Brown, 2014 UT 6, ¶ 29, 323 P.3d 571). But we upheld the
jurisdiction of our courts to decide on the enforceability of an
uncontested gestational agreement under the Utah Uniform
Parentage Act. In so doing, we analogized such a proceeding to an
uncontested adoption—a proceeding long heard by our Utah
courts. See id. ¶¶ 14–15 (noting that the territorial and early Utah
courts adjudicated uncontested adoptions). And with that
historical practice in mind, we held the adjudication of parental
rights would fall within the scope of the judicial power as
understood ―by the framers of our constitution‖ despite the lack
of any contest or adverse argument by birth parents. Id. ¶ 13.
¶176 The Gestational Agreement majority did not use the
express terminology of ―adverse interests‖ and ―adverse
argument.‖ But the court‘s holding is clearly rooted in these
settled principles. The court first noted that uncontested
adoptions are non-adversarial in the sense that the birth parents
have agreed in advance to waive their right to present adverse
argument as to their interests in the child. See id. ¶ 14–15 (noting
that biological parents were required to give advance consent to
the termination of their rights in founding-era uncontested
adoption proceedings). Next, it indicated that an adoption order
nonetheless involves a disposition of adverse interests—in an
order establishing the adoptive parents‘ rights at the expense of
(or upon termination of) the biological parents‘ rights.
¶177 The Gestational Agreement court thus held that the
original understanding of the judicial power encompasses the
authority to hear uncontested cases involving ―the termination
different. It involves the establishment of a petitioning party‘s
rights at the expense of an adverse party.
This is not ―the dissent‘s distinction.‖ Supra ¶ 27. And it is not
a principle emanating from a recent ―law review article.‖ Supra
¶ 26. It is the core premise of the judicial power established by
centuries of jurisprudence. And that premise is overridden by the
majority today.
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and creation of parental rights.‖ Id. ¶ 16 (emphasis added). It
characterized such cases as ―non-adversarial.‖ Id. But the
proceedings in question were ―non-adversarial‖ only in the sense
that they were uncontested—or in other words lacked adverse
argument. And the Gestational Agreement opinion framed the
category of ―non-adversarial‖ proceedings that it found to fall
within the original understanding of the judicial power in terms
that made clear that adverse interests were implicated. See id.
(holding that ―the judicial power includes the power to hear non-
adversarial proceedings when these proceedings involve parental
rights‖ (emphasis added)).
¶178 The Gestational Agreement opinion cannot be viewed to
have abandoned the requirement of adverseness more generally.
It does not stand for the proposition that our courts have the
power to ―adjudicate‖ any category of case over which we have
been ―granted . . . substantive power‖ by the legislature,
―regardless of adversariness.‖ Supra ¶ 25. The Gestational
Agreement majority does the opposite. It reinforces that
adverseness is the general rule. And it recognizes only a limited
exception to that rule—as to a category of cases in which there are
adverse interests but no adverse argument.
¶179 The majority today is erasing the careful lines drawn
in Gestational Agreement and overriding the longstanding
requirement of adverseness. In so doing it is vindicating the
position staked out by Justice Pearce in his concurrence in
Gestational Agreement—an opinion that suggested that our court
has never ―squarely confronted‖ whether ―the judicial power
constitutionally vested in our courts contains a general
requirement of ‗adversariness‘‖ and encouraged ―exploration‖ of
the issue ―in further cases.‖ Id. ¶¶ 56–57 (Pearce, J., concurring);
see also id. ¶¶ 63, 68–70 (suggesting that there is historical evidence
that both Utah and federal courts historically ―presided over
nonadversarial proceedings‖ and that this court could benefit
from ―additional briefing and analysis‖). The majority claims to
be stopping short of endorsing this position. See supra ¶ 20 n.13
(finding ―much to commend‖ in Justice Pearce‘s concurring
opinion but insisting that the court is not ―conclusively deciding‖
whether to adopt it). But the court‘s expressed standard is
incompatible with the Gestational Agreement majority. It effectively
holds that adverseness is no longer required in its assertion that
we can exercise judicial power over any case over which we have
been ―granted . . . substantive power‖ by the legislature. Supra
¶ 25.
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IN RE SEX CHANGE
ASSOCIATE CHIEF JUSTICE LEE, dissenting
¶180 This is not our law. A ―justiciable controversy‖ does
not always produce adversary briefing. Yet it does require the
disposition of adverse interests—upon notice to and an
opportunity for briefing from known adverse parties. An
adversary party may forfeit its interest (by default) or waive it in
advance (by consent—as with an uncontested adoption or
gestational agreement). A court lacks the power to establish a
petitioning party‘s rights, however, if it is not doing so at the
expense of or upon satisfaction by a responding party.88
C. Name Change Proceedings and the Court‘s Rejection of
the Requirement of Adverseness in favor of a New General Rule
¶181 The history of name-change proceedings is no basis
for a decision to abandon the longstanding requirement of
adverseness. Some name-change actions amount to adverse in rem
proceedings akin to probate matters—actions in which the
petitioning party‘s rights are established at the expense of any
adverse interests after public notice of this prospect. A prime
example would be a name change action that could effect identity
fraud or debt avoidance.89 This sort of name-change action would
__________________________________________________________
88 I agree with the majority that ―‗[t]he Utah Constitution
enshrines principles, not applications of those principles.‘‖ Supra
¶ 34 (quoting South Salt Lake City v. Maese, 2019 UT 58, ¶ 70 n.23,
450 P.3d 1092). But our constitutional principles are derived in the
first instance from the original understanding of the text of the
constitution. And the original understanding of the judicial power
has long been viewed to encompass the requirement of
adverseness. We should not abandon that principle at the first
sight of an ―analogy‖ that might seem to run counter to it. But see
supra ¶ 34 (concluding that the analogy of name-change
proceedings overrides the requirement of adverseness and
establishes the principle that courts have power to adjudicate non-
adversarial ―status‖ determinations).
89 See, e.g., Brown v. Name Change, 611 So. 2d 1355, 1355–56 (Fla.
Dist. Ct. App. 1993) (remanding to the district court for an
evidentiary hearing in which the prison‘s interests could be
considered in a name change case filed by an inmate ex parte and
ruled on by the district court without any input from the prison);
In re Change of Name of DeWeese, 772 N.E.2d 692, 694 (Ohio Ct.
App. 2002) (explaining that one reason for requiring notice in a
name change proceeding is to prevent fraud).
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be an adverse proceeding in which the court would give notice to
any adverse parties.90
¶182 Other name-change proceedings are less
consequential, and less obviously adverse. In a run-of-the-mill
name-change action, the petitioner is simply changing a surname
to reflect an adoption or marriage, or changing a first or middle
name in a manner that has no potential to resolve the interests of
any third parties. Such an action would not be viewed as adverse
in the sense of the petitioning party‘s rights being established at
the expense of a defendant‘s. And in that sense, name-change
actions may seem to stand as a historical exception to the general
rule of adverseness.
¶183 But that still leaves the question of the inference to
draw from this historical exception. The identification of an
exception need not disprove the general rule—much less require
that we displace it with a new rule. Sometimes an exception is just
an exception—a narrow carve-out from the scope of a general
rule, or in other words a ground for refining the general rule.
¶184 That is the proper course to take where the general
rule is so deeply rooted and so consistently stated. The
requirement of adverseness is a longstanding limit on the judicial
power. It is a fundamental protection against excesses of the
judiciary, rooted in the foundations of Anglo-American
government and restated by this court from the time of its
founding. We should not abandon it at the first sight of an
apparent aberration.
¶185 The majority does essentially that. Instead of just
endorsing a name-change exception to the general requirement of
adverseness, the majority establishes a new general rule—the rule
that our courts can adjudicate any case over which we have been
―granted . . . substantive power‖ by the legislature, supra ¶ 25, at
__________________________________________________________
90 See UTAH CODE § 42-1-2 (providing for ―notice . . . of the
hearing‖ on a name change petition as ordered by the court);
UTAH REV. STAT. § 1546 (1898) (―[T]he district court may order the
change of name as requested, upon proof in open court . . . that
thirty days‘ previous notice of the hearing thereof has been given
in a newspaper published or having a general circulation in the
county.‖).
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ASSOCIATE CHIEF JUSTICE LEE, dissenting
least where the decision amounts to a ―change[]‖ in a person‘s
―legal status or identification,‖ supra ¶ 23.
¶186 The new rule stands in stark contrast to our existing
rule. Our existing rule was articulated by William Blackstone,
reiterated by John Marshall, and cemented by centuries of Anglo-
American precedent and decades of Utah precedent. See supra
¶¶ 154–55, 155 n.74, 156 n.75. The new rule has no such pedigree.
The court cites no case or any other legal material that holds or
even suggests that our courts have the judicial power to
adjudicate changes of ―legal status or identification.‖ It just asserts
that this rule is somehow implicated by the history of name-
change actions in our courts.
¶187 The majority claims not to be ―conclusively deciding‖
whether to repudiate the longstanding requirement of
adverseness. Supra ¶ 20 n.13. But the court‘s decision effectively—
and quite clearly—overrides it. The new rule swallows the old
one.
¶188 After the decision today, it can no longer be said that a
non-adversarial ―administrative act[] aimed at applying the law to
particular individuals or groups‖ is solely an executive function,
Carter, 2012 UT 2, ¶ 34, or that our courts ―have no power to
decide abstract questions or to render declaratory judgments[] in
the absence of an actual controversy directly involving rights‖ of
adverse parties. Univ. of Utah, 229 P. at 1104. Instead, the new rule
is that our courts can make non-adversarial administrative
decisions so long as they affect ―legal status or identification.‖ The
new rule has no limiting principle. It effectively overrides decades
of Utah precedent and centuries of settled practice in our Anglo-
American system of justice.
¶189 Any administrative act by the executive branch can be
viewed as affecting ―legal status.‖ The disposition of a party‘s
legal rights is the establishment of ―legal status.‖ The new rule
would thus logically encompass any of a range of the most
classically executive functions—including decisions on whether
and how to prosecute a suspect and whether or how to issue or
amend any government record, license, or permit.91
__________________________________________________________
91 I am not ―collapsing‖ or equating ―legal status or
identification‖ with ―issu[ing] or amend[ing] any government
record, license, or permit,‖ as the majority suggests. Supra ¶ 70
(continued . . .)
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¶190 Under today‘s decision, our courts are thus no longer
restricted to the exercise of traditional judicial power. We share
the core power of the executive branch. We can make
administrative decisions heretofore restricted to the executive.
And we can do so in the absence of any disposition of or
opportunity for input from any adverse interests.
¶191 I dissent from this sweeping decision. The history of
name-change proceedings does not provide a basis for jurisdiction
over all ex parte ―status or identification‖ proceedings. At most it
establishes a basis for a narrow exception to our settled general
rule.
¶192 For these reasons I would hold that the legislature
lacks the power to delegate to the courts the power to resolve the
kind of petition at issue in this case. The petitions before us ask
that we establish the petitioning parties‘ ―legal status‖ under the
law without adjudicating any responding party‘s competing
(alteration in original). I am simply noting that licensing and
permitting are settled examples of core executive power—
government acts establishing a petitioning party‘s ―legal status‖
in the abstract instead of at the expense of a responding party‘s
rights. And it is the majority that has failed to explain how its new
―legal status or identification‖ standard can be reconciled with the
settled limits on our judicial power, or interpreted in a manner
that preserves any distinct function for the executive.
The court insists that ―areas of the law traditionally regulated
by the executive‘s permitting and licensing function are
distinguishable from matters involving legal status or
identification.‖ Supra ¶ 70. But it never identifies any plausible
basis for distinction. The closest it comes to an attempt at a
distinction is the assertion that executive ―licensing and
permitting‖ are based primarily on ―public safety purposes,‖
while judicial ―legal status‖ determinations are not. Supra ¶ 70
n.29. The proposed distinction fails, however, at both ends of the
divide. The executive power has never been deemed to be limited
to the pursuit of ―public safety purposes.‖ And the judicial power
clearly spans more than just ―legal status or identification.‖
The court‘s new lines are problematic. They bear no relation to
the established terms and conditions of the executive and judicial
power.
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interests. We thus lack the jurisdiction to entertain this petition
under well-settled law. And we have the duty to assess our
jurisdiction sua sponte, regardless of the lack of any briefing that
challenges it. See UTAH R. CIV. P. 12(h)(2); In re Adoption of B.B.,
2017 UT 59, ¶¶ 121, 127, 417 P.3d 1 (Lee, A.C.J., dissenting).
¶193 It is thus no answer to note that ―no party‖ has
challenged our jurisdiction or questioned the constitutionality of
Utah Code section 26-2-11 as applied to this case. See supra ¶ 68
(stating that ―no party‖ has argued that we lack jurisdiction or
sought to challenge the presumption of constitutionality). That is
hardly surprising given that the only parties to this case are those
that are asking us to invoke our jurisdiction in their favor. Our
statutes are admittedly entitled to a presumption of
constitutionality. See South Salt Lake City v. Maese, 2019 UT 58, ¶ 96
& n.37, 450 P.3d 1092 (Lee, A.C.J., concurring) (citing case law
establishing this presumption). But the presumption is rebuttable.
And it has been rebutted here as applied to a petition that runs
afoul of the settled rule that our jurisdiction is limited to the
disposition of adversary proceedings.92
D. We Should Call for Notice and Adverse Briefing Even if
Not Required to Do So
¶194 Even if adverseness were not a required component of
our jurisdiction under the Utah Constitution, that would leave the
question whether we should nonetheless order adversary briefing
for prudential reasons. And I see little room for doubt on that
question.
¶195 In resolving this case, the court is establishing a new
standard of gender identity to be reflected as the designation of a
person‘s sex on Utah birth certificates. In adopting this new
standard, the court is crediting the interests and arguments of the
__________________________________________________________
92 The majority is missing this point in suggesting that I must
―know[] that [my] propositions, properly framed, would not
withstand [the] presumption of constitutionality.‖ Supra ¶ 69 n.28.
There is no presumption that the legislature can delegate to our
courts the power that has long belonged to the executive branch.
We have an independent obligation to make sure that we are not
exceeding the bounds of our jurisdiction. And any presumption of
constitutionality that attaches to the statute has been rebutted in
my view.
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petitioners at the explicit expense of a host of contrary concerns.
See supra ¶ 103 n.44 (repudiating my recognition of the existence
of interests and viewpoints belonging to groups unrepresented in
the non-adversarial briefing before the court). And the court‘s
new standard will control all future proceedings in our Utah
courts and will bind the executive branch of our government (the
Utah Office of Vital Records) going forward.93
¶196 Perhaps the majority‘s new standard is a good one on
a policy level. It is certainly protective of one set of interests at
stake—that of transgender persons who wish to have their
government documents match their gender identity.94 But there
are other interests on the table, like the interests of biological
women in competing only with other biological women in sports
(for scholarships, records, and awards), and the privacy and
safety interests of those who enter high school locker rooms or
safe-space shelters for abuse victims. The court is balancing away
these and other contrary concerns without any notice to or voice
from any party in a position to assert these adverse interests.95
__________________________________________________________
93 See UTAH CODE § 26-2-11 (requiring the state registrar to
make an amendment to ―the otherwise unaltered original
certificate‖ upon receiving a court order along with an application
and payment of a fee.)
94 No one can seriously dispute the important role that birth
certificates play in our society. A birth certificate ―records the
birth of a child for vital statistics, tax, military, and census
purposes.‖ A.B.A., Birth Certificates (Nov. 20, 2018),
https://www.americanbar.org/groups/public_education/public
ations/teaching-legal-docs/birth-certificates/. It ―serve[s] as
proof of an individual‘s age, citizenship status, and identity,‖ as a
basis for a person ―to obtain a social security number, apply for a
passport, enroll in schools, get a driver‘s license, gain
employment, or apply for other benefits.‖ Id. And the court‘s new
standard will have indisputable effects in these and other
applications. I cannot understand why we would choose to plow
forward with the sweeping change adopted today without
hearing from parties in a position to highlight concerns associated
with a new standard of gender identity for birth certificates under
our law.
95 At an earlier stage of the proceedings we issued an order
inviting amicus briefing on the question of our ―jurisdiction‖ to
(continued . . .)
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¶197 None of the majority‘s historical precedents provides
support for the court‘s decision to resolve this matter in the
absence of any adversary briefing. In none of the majority‘s cited
examples is a court balancing away adverse interests in a
conclusive resolution of a disputed legal question. There is no
precedent for this kind of ex parte resolution of a state ―adoption[],
name change[], probate, [or] guardianship matter[],‖ In re
Gestational Agreement, 2019 UT 40, ¶ 63, (Pearce, J. concurring), or
of any federal proceeding involving a bankruptcy, receivership,
pension or citizenship determination. In the mine run of those
cases, the law is settled, no contrary interests are being foreclosed,
and the court is not establishing a new legal standard. This case is
different. And the majority has cited no salient support for its
decision to exercise jurisdiction in a case like this one.
¶198 On a matter of this significance and magnitude, we
should invite adversary briefing even if we are not required to do
so. And if no adversary should appear, we should appoint an
amicus to represent the adverse interests that are unrepresented
in the briefing before us.
¶199 This is a path that many other courts have followed.
The United States Supreme Court has invited an amicus to
represent adverse interests dozens of times. See Katherine Shaw,
Friends of the Court: Evaluating the Supreme Court's Amicus
Invitations, 101 CORNELL L. REV. 1533, 1594 (2016). Often it does so
in circumstances like those presented here, where there has been a
―lack of genuine adversary proceedings at any stage in [the]
litigation,‖ and where the outcome ―could have far-reaching
consequences.‖ Granville-Smith v. Granville-Smith, 349 U.S. 1, 4
(1955).
resolve this matter. But no court ever gave any notice of the right
of any party to assert any interests on the merits of the question
presented for our decision. And we have no briefing of that
nature. Our court is making new policy in this sensitive field
without any input from anyone who may be in a position to raise
concerns about the establishment of a new standard of ―gender
identity‖ for Utah birth certificates. This is surely unwise as a
matter of prudential policy, even if it is not foreclosed as a matter
of our jurisdiction.
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¶200 Without adversary briefing, we are ill-equipped to
establish a new concept of gender identity to be reflected on birth
certificates in Utah. As judges on a court of law, we are in no
position to analyze and weigh for ourselves the competing
interests implicated by a decision of this magnitude. We do not
represent a constituency of voters and we have no mechanism for
asking legislative committees to elicit input from the broad range
of public views on the matter. In the exercise of our appellate
authority, we are entirely reliant on the adversary system. And it
makes no sense for us to tread boldly into the territory of
common-law decisionmaking in the absence of any adversary
input—even if we had the power to do so in a case in which there
is no adverse party.
¶201 This prudential course admittedly would introduce
some additional ―delay‖ in an already long-pending matter. See
supra ¶ 43 n.21 (raising this concern). But process matters. We
could and should have dismissed this case on jurisdictional
grounds very early on. That decision would have put the question
presented back in the legislature‘s lap, where it belongs. And in
all events, there is no basis for our court to be making new law on
a matter of this magnitude in a non-adversarial proceeding.
II. MERITS
¶202 The majority‘s decision is troubling even if we assume
away the jurisdictional and prudential limits on our judicial
power. Our power is limited in a second, important way. We are
bound by the text of the law enacted by the legislature.
¶203 The governing text was enacted in 1975, when the
legislature amended our longstanding Utah Vital Statistics Act. At
that time, the legislature added a provision requiring the registrar
of the Office of Vital Records to issue an amended birth certificate
―[w]henever a person born in this state has their name and/or sex
change approved by an order of a court‖ upon presentation of a
completed application and payment of a fee. 1975 Utah Laws 222.
This provision has been recodified (in essentially identical terms)
in Utah Code section 26-2-11.
¶204 The question presented goes to the meaning of the
statutory reference to a person‘s ―sex‖ in this context. Everyone
agrees that this term refers to a person‘s biological sex when the
birth certificate is initially created. See supra ¶¶ 4 n.5; 90, 104. Here
we are asked to decide whether the term ―sex‖ takes on a different
meaning in the context of a ―change‖ to the same document.
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¶205 That question has a straightforward answer on the
face of the statutory text. A statute that speaks only to the effect of
an order for a change to a birth certificate sex designation cannot
be read to be delegating common-law power to develop an
evolved concept of ―gender identity.‖96 The reference to ―sex‖ in
this statute is a reference to biological sex. That is the obvious
sense of ―sex‖ that is in play in the initial sex designation on a
birth certificate. And that same concept must be understood to be
carried forward in a statute that states no separate standard for an
order amending that same document.97 This follows both from the
canon of consistent meaning and the presumption that a
legislature does not ―alter the fundamental details of a regulatory
scheme in vague terms or ancillary provisions—it does not . . .
hide elephants in mouseholes.‖ Whitman v. Am. Trucking Ass’ns,
531 U.S. 457, 468 (2001).
¶206 The statute thus leaves no room for the majority‘s
evolved standard of a sex-designation based on the receipt of
__________________________________________________________
96 This is in fact the concept of ―sex‖ established by the
majority as the law of this state. The court can insist that it is only
deeming the ―sex‖ designation as a ―datum of legal status‖ and
not ―argu[ing] that ‗sex‘ means ‗gender identity.‘‖ Supra ¶ 106
n.48. But the reality remains: The ―datum of legal status‖ adopted
by the court is one that equates a birth certificate sex designation
with a person‘s gender identity under an evolved standard
established by the court.
97 Like the Chief Justice, I interpret the governing statute as
envisioning a ―routine procedural‖ filing ―by which a birth
certificate amendment may be effected.‖ Supra ¶ 123. And I view
the statute as speaking to ―the kinds of birth certificate
amendments subject to the statute.‖ Supra ¶ 123. Yet I see those
premises as pointing in a different direction than that outlined by
the Chief Justice.
The statute may not prescribe a ―substantive standard‖ for the
issuance of an order for an amendment to a birth certificate. Supra
¶ 123. But it does speak to the ―kind[]‖ of designation that is
subject to amendment by court order. Supra ¶ 123. The operative
concept or type of designation at issue is a biological sex
designation—not a novel determination of gender identity. And
in my view, that same kind of designation should be the one at
play in any request for a court order to amend this vital record.
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treatment for gender transitioning or change. Nor does it yield
any indication of an intent to delegate common-law policymaking
power to the courts. I develop both points in greater detail below.
A. Plain Meaning
¶207 We have long expressed a commitment to the ―plain‖
or ―ordinary‖ meaning of statutory language. See, e.g., Olsen v.
Eagle Mountain City, 2011 UT 10, ¶ 9, 248 P.3d 465. This
commitment is based on a host of good reasons, all rooted in our
understanding of the rule of law. Only the plain language of the
statute ―survived the constitutional process of bicameralism and
presentment.‖ Graves v. N. E. Servs., Inc., 2015 UT 28, ¶ 67, 345
P.3d 619. And it is thus our responsibility to give voice to ―the
policy judgment‖ reached by the political branches of our
government—not to ―impos[e] our own will through the exercise
of our limited judicial power.‖ Id. ¶ 70.
¶208 We can credit the plain or ordinary meaning of the
language of our law only if we understand some nuances of our
human language. And those nuances cut clearly in favor of a
biological concept of ―sex‖ as that term is used in Utah Code
section 26-2-11.
¶209 A starting point is the acknowledgement that the
building blocks of human language are subject to ambiguity—a
word can be understood to have one meaning in one setting and a
different one in another. Another is the idea that our language is
subject to evolution over time—words can take on new meanings
through the process of ―linguistic drift.‖ These elements
contribute to the ambiguity in the language of the law. But they
by no means rob our language of all determinate meaning. And
they do not open the door to any and all judicial ―interpretations‖
of legal language.
¶210 Much of the law‘s ambiguity is ―eliminated by
context.‖ Olsen, 2011 UT 10, ¶ 13 (quoting Deal v. U.S., 508 U.S.
129, 131–32 (1993)). Legal and linguistic context can even remove
ambiguities arising from evolution in the meaning of a word over
time. Think of the word ―sick‖—a term that traditionally was
understood to refer to ill health, but more recently has morphed to
include the idea of an impressive or risky move by an athlete. See
State v. Rasabout, 2015 UT 72, ¶ 59, 356 P.3d 1258 (Lee, A.C.J.,
concurring) (noting this evolution in the use of this word).
Historical uses of ―sick‖ would not readily be viewed in the latter
sense; and a law that spoke to ―sick leave‖ for employees surely
would be understood as addressed only to the former sense.
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¶211 These observations dictate a clear answer to the
interpretive question presented in this case. The term ―sex‖ may
arguably be in the process of linguistic drift. Increasingly, some
people speak of ―sex‖ as a term referring not only to biology but
also to gender identity. Others insist on a contrary view, holding
fast to the idea that sex is and can only be a matter of biology.98
¶212 The clash of these two conceptions has triggered a bit
of a culture war. As with so many points of conflict in our society
today, the tension is heated. Each side advances its view with
fervor and occasional furor—with the charge that the latter view
ignores or overrides established science, or the criticism that the
former position fails to afford dignity or inclusion to those whose
identity is incompatible with their biological sex.
¶213 Fortunately, we are not called upon to mediate this (or
any other) dimension of a culture war. We are asked only to
decide the question whether the term ―sex‖ as used in a 1975
statute governing the terms of a birth certificate can be
understood as a reference to the concept of ―gender identity‖ that
has evolved in recent years. The answer to that question is clear. It
cannot. And any ambiguity is resolved on the basis of both the
timing and the context of the 1975 statute.99
¶214 The statute in question was enacted in 1975. At that
time, a reference to a person‘s ―sex‖ unambiguously was
__________________________________________________________
98 See GLAAD MEDIA REFERENCE GUIDE – TRANSGENDER,
https://www.glaad.org/reference/transgender (last visited April
22, 2021) (defining sex as a classification based on biological
characteristics and gender identity as a ―person's internal, deeply
held sense of their gender‖).
99 My analysis is focused on the meaning of a ―change‖ to the
designation of a person‘s ―sex‖ on a birth certificate. This is the
relevant legal and linguistic context of the statutory language—
and the context that must be taken into account in discerning the
ordinary meaning of the terms of the statute. The statute, after all,
cannot possibly be read to require a court order as a legal
precondition to a person‘s right to undergo this kind of ―sex
change.‖ In contemplating an order for a ―sex change,‖ the statute
is clearly speaking of a ―change‖ in the designation of a person‘s
―sex‖ on a birth certificate. And my analysis is thus focused on the
meaning of that kind of ―sex change‖ in this legal context.
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understood as a reference to biological sex. This is confirmed by a
wide range of dictionaries in place in 1975—and even extending
to the fifteen-year period after that date of enactment. All of the
dictionaries we have consulted from that time period define ―sex‖
as a biological concept.100 None of them defines ―sex‖ as a fluid
__________________________________________________________
100 Sex, RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE
SECOND EDITION (1987) (―1. either the male or female division of a
species, esp. as differentiated with reference to the reproductive
functions 2. the sum of the structural and functional differences
by which the male and female are distinguished, or the
phenomena or behavior dependent on these differences.‖); Sex,
WEBSTER‘S II NEW RIVERSIDE UNIVERSITY DICTIONARY (1984) (reprt.
1988) (1984) (‗1. a. The property or quality by which many living
things are classified according to their reproductive functions. b.
One of the two divisions, either male or female, of this
classification. 2. Males or females as a group 3. a. The condition or
character of being male or female b. The physiological, functional,
and psychological differences that distinguish the male and the
female. . . . 6. The genitalia‖); Sex, THE AMERICAN HERITAGE
DICTIONARY OF THE ENGLISH LANGUAGE (reprt. 1981) (1969) (―1.a.
The property or quality by which organisms are classified
according to their reproductive functions. b. Either of two
divisions, designated male and female, of this classification. 2.
Males or females collectively. 3. The condition or character of
being male or female; the physiological, functional, and
psychological differences that distinguish the male and the
female.‖); Sex, WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY
(reprt. 2002) (1961) (―1 : one of the two divisions of organic esp.
human beings respectively designated male or female . . . 2 : the
sum of the morphological, physiological, and behavioral
peculiarities of living beings that subserves biparental
reproduction with its concomitant genetic segregation and
recombination which underlie most evolutionary change, that in
its typical dichotomous occurrence is usu. genetically controlled
and associated with special sex chromosomes, and that is typically
manifested as maleness and femaleness. . . .‖).
Some of the above definitions do refer to ―‗psychological,‘
‗behavior[al],‘ or ‗character‘ differences‖ as possible indicators of
―sex‖ in some species. Supra ¶ 86. But it does not follow that a
―sex‖ designation on a birth certificate would be made by reference
to these sorts of differences. And it surely does not follow that this
(continued . . .)
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construct tied to an individual person‘s identity. Only one of these
dictionaries, in fact, refers to the more evolved concept of identity
at all, and it does so in a definition of ―gender identity.‖101
¶215 The culture-war concern about the biological concept
of ―sex‖ has thus arisen only in recent years. So any linguistic drift
of this term had not developed at any time in which our
legislature enacted law in this field. Neither the majority nor the
petitioners have cited any authority to the contrary. And in fact at
least one of the cases relied on extensively by the majority
confirms my contrary conclusion. See Bostock v. Clayton Cnty., 140
S. Ct. 1731, 1739 (2020) (proceeding on the assumption that ―the
term ‗sex‘ in 1964 referred to ‗status as either male or female [as]
determined by reproductive biology‖ (alteration in original)); id.at 1746–47 (openly stating that the court ―agree[d]‖ that a person‘s
―transgender status‖ is a ―distinct concept[] from sex‖).
¶216 The biological meaning of the term ―sex‖ here is
reinforced by the legal and linguistic context of its use in this
statute. The reference to the designation of a person‘s sex on a birth
certificate can only be understood as a reference to biological sex.
This is clear, first, as a matter of simple logic—a baby has no
capacity for expression of gender identity, so only biological sex
can be reflected on a birth certificate. But it is also clear as matter
of the established use of this term in this legal setting. In the birth
certificate setting, ―sex‖ is an unambiguous reference to biological
sex, not gender identity.102
use of the term ―sex‖ historically was understood to refer to
gender identity—or receipt of treatment for gender transitioning
or change.
101Gender Identity, RANDOM HOUSE DICTIONARY OF THE ENGLISH
LANGUAGE (2d ed. 1987) (―[A] person‘s inner sense of being male
or female, usually developed during early childhood as a result of
parental rearing practices and societal influences and
strengthened during puberty by hormonal changes‖).
102 See In re Ladrach, 513 N.E.2d 828, 832 (Stark Cnty. Ohio
Prob. Ct. 1987) (noting that ―[i]t is generally accepted that a
person‘s sex is determined at birth by an anatomical examination
by the birth attendant,‖ resulting in ―a declaration on the birth
certificate of either ‗boy‘ or ‗girl‘ or ‗male‘ or ‗female‘‖); Alice
Domurat Dreger, “Ambiguous Sex” —or Ambivalent Medicine?
(continued . . .)
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¶217 The majority cites no contrary authority—indeed, it
concedes the threshold point. See supra ¶¶ 4 n.5; 90, 104. And I can
find no basis for viewing the designation of a person‘s ―sex‖ on a
birth certificate as anything other than a reference to biological
sex. There is thus no basis for any ambiguity in the meaning of the
term ―sex‖ in the context of a birth certificate designation. The
term, in this context, is plain. Any ambiguity is eliminated by
context.
¶218 That leaves only the question whether the reference to
a ―sex‖ designation on a birth certificate can be viewed to
incorporate a different meaning when it comes to a ―change‖ to
that designation. And again, the answer to that question is clear.
The statute itself doesn‘t spell out an express standard for a court
to issue an order approving a change to a birth certificate ―sex‖
designation. But that speaks volumes. In a statutory scheme that
governs both the original content of a birth certificate and later
changes to that content, the reference to a ―change‖ to the original
content cannot be viewed to alter the scope of the original content.
The ―sex‖ designation in both instances is the same.
¶219 This was, in fact, the widespread understanding of the
concept of a ―change‖ to birth certificate ―sex‖ designation at the
time of the initial enactment of the controlling statute. In every
single state with statutes allowing an amendment to a sex
designation on a birth certificate in 1975 (there were only a few),
literally all of them required a change to physiological
manifestations of biological sex—sex-reassignment surgery.103
Ethical Issues in the Treatment of Intersexuality, 28 HASTINGS CTR
REP. 24, 27–28 (1998) (describing how, in cases involving
ambiguous genitalia, teams of medical experts such as
―geneticists, pediatric endocrinologists, [and] pediatric urologists‖
are assembled to determine sex based on biological factors).
103 See Edward S. David, The Law and Transsexualism: A
Faltering Response to a Conceptual Dilemma, 7 CONN. L. REV. 288,
300–04 (1974) (suggesting that it was ―difficult to ascertain‖ where
the states stood on the matter in 1974 but identifying only three
states—Arizona, Illinois, and Louisiana—that allowed ―birth
certificate changes for transsexuals‖ and noting that all of them
required sex-reassignment surgery); see also In re Ladrach, 513
N.E.2d at 830 (noting that the three states that had statutes
(continued . . .)
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¶220 The majority gives an initial nod to the obvious
connection between the biological concept of ―sex‖ on the original
allowing birth certificate amendments based on sex change
(Arizona, Illinois, and Louisiana) required surgery); Act of May 4,
No. 39, 1973 Haw. Sess. Laws 50–51 ( ―A new certificate of birth
shall be prepared by the director of health for a person born in the
State upon receipt of an affidavit by a physician that he has
performed an operation on the person and that by reason of the
operation the sex designation on such person‘s birth record
should be changed‖); Act of June 11, 1975, ch. 556, 1975 N.C. Sess.
Laws 602, 602 (allowing a petitioner to ―change the sex on his or
her birth record because of sex reassignment surgery, provided
that the request is accompanied by a notarized statement from a
physician licensed to practice medicine stating that he performed
the sex reassignment surgery or that, based on his physical
examination of the individual, he or she has undergone sex
reassignment surgery‖); New York City Dep‘t of Health & Mental
Hygiene Board of Health, Notice of Adoption of Amendment to
Article 207 of the New York City Health Code (2018),
https://www1.nyc.gov/assets/doh/downloads/pdf/notice/201
8/noa-amend-article207-section207-05.pdf (―In 1971, the Board of
Health [was allowed] to file a new birth certificate with a
corrected gender marker . . . for a person . . . who underwent
‗convertive‘ surgery.‖ ―[T]he requirement for convertive surgery‖
was not eliminated until 2014.); NAT‘L CTR. FOR HEALTH STATISTICS
, Pub. No. (PHS) 78-1115, MODEL VITAL STATISTICS ACT AND
MODEL STATE VITAL STATISTICS REGULATIONS § 21(e) (1978),
https://www.cdc.gov/nchs/data/misc/mvsact77acc.pdf
(allowing birth certificate amendment when ―the sex of an
individual born in this State has been changed by surgical
procedure‖); Dean Spade, Documenting Gender, 59 HASTINGS L.J.
731, 768 (2008) (―Every state allowing change of sex on a birth
certificate requires evidence of surgery to warrant a gender
reclassification. . . .‖).
The majority has cited no contrary authority. It has thus
conceded that its standard is not rooted in any legal standard in
place when the governing statute was amended. And it has
accordingly acknowledged that its decision can be viewed only as
the establishment of new judicial policy by the Utah Supreme
Court.
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birth certificate and the statutory reference to a ―change‖ to that
designation. But it quickly abandons the connection (without
acknowledging the active nature of its move).
¶221 The initial concession is the statement that the court
―believe[s] that, much like a sex designation made at birth, a
change in sex designation should be accompanied by objective
evidence.‖ Supra ¶ 105. So far, so good. Yet the very next sentence
is the articulation of an entirely new concept of a change in the
designation of a person‘s sex. After stating that it ―believe[s]‖ that
the ―sex‖ designation on the original birth certificate is based on
objective medical evidence, the court moves immediately to this:
―As a result, we hold that a petitioner must present, at the
minimum, evidence of appropriate clinical care or treatment for
gender transitioning or change, provided by a licensed medical
professional.‖ Supra ¶ 105. But this is a linguistic non-sequitur.
The court‘s new standard is by no means a ―result‖ of the
biological concept of sex that controls the original birth certificate
designation. This is clear from the fact that the court nowhere
attempts to tie its standard of ―gender identity‖ to a definition of
―sex.‖104 In formulating its new standard, the majority is not
invoking an ordinary or legal definition of ―sex‖—and certainly
not a definition from the time period in which the statute in
question was enacted. It is just asserting that there is ―gap‖ in the
statute, and leaping from that gap to the prerogative of
establishing a novel meaning of the words that do appear in the
statute. See supra ¶ 50.
¶222 There is no ―gap‖ that is not eliminated by the context
of the statute in which the term ―sex‖ appears. A statute that
refers only elliptically to an order for a ―change‖ to the
designation of a person‘s ―sex‖ on a birth certificate must be
viewed to refer to the same concept of sex established at the time
of a child‘s birth.
¶223 A basis for a change in that designation could be
established upon discovery of a mistake in the biological sex
__________________________________________________________
104 The court does refer to a definition of ―sex‖ in a different
legal setting—in a statute prohibiting discrimination on the basis
of ―sex‖ in housing. See supra ¶ 4 n.5. But it does not adopt the
housing discrimination notion of ―sex,‖ or even its separate
concept of ―gender identity.‖ See infra ¶ 226 (discussing this point
further).
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designation made at the time of a child‘s birth, or a showing that
the biological features of an intersex person have developed
differently than expected at birth. It also might be met where a
person can demonstrate that the biological indicators of sex have
been altered, as by sex-reassignment surgery.105 But the statutory
basis for a change in a birth certificate ―sex‖ designation cannot be
established on the mere basis of a change in ―gender identity‖
evidenced only by ―appropriate clinical care or treatment‖ for
gender transitioning or change. This is not our law. Gender
identity is not sex—at least not in the birth certificate context.106
__________________________________________________________
105 Such surgery conceivably could establish a basis for a
―change‖ to a person‘s ―sex‖ that would sustain a birth certificate
amendment. I stop short of giving a conclusive answer, however,
because this case comes before us in a non-adversary posture and
this question is not presented for our decision in any event.
If and when our law adopts a standard along these lines, that
could require us to address some of the line-drawing questions
highlighted by the majority. Supra ¶ 91 (citing an ―array of
surgical options‖ and a disagreement among the courts as to what
might qualify as ―sex-reassignment surgery‖). But I am not
advancing a proposed standard for ―sex change‖ based on sex-
reassignment surgery. And the concern about line-drawing is at
least as clearly implicated by a standard requiring courts to decide
(without adversary input) whether a petitioner is seeking
―appropriate clinical care or treatment for gender transitioning or
change.‖ Supra ¶ 105.
106 The majority concedes that the sex determination on a birth
certificate is ―generally determined by an external ‗anatomical
examination,‘ not by an examination of the individual‘s
chromosomal makeup.‖ Supra ¶ 88. It also notes, however, that
―sex chromosomes are immutable‖ and cannot be altered by
―therapy, treatment, or procedure.‖ Supra ¶ 88. And with that in
mind, the court insists that the legislature ―could not have
intended to include consideration of sex chromosomes in its
conception of ‗sex‘ in a statute regarding name and sex change.‖
Supra ¶ 88. On that basis, the court then proceeds to assert that
―any definition of ‗biological sex‘‖ must somehow ―ultimately fail
in this context.‖ Supra ¶ 89 n.39. Yet that does not follow. The
court has identified a basis for limiting the basis for an
amendment to a birth certificate sex designation to the basis for
(continued . . .)
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¶224 In the paragraphs below I develop further support for
this understanding in the canon of consistent meaning and the
presumption that legislatures ―don‘t hide elephants in
mouseholes.‖
1. Consistent Meaning
¶225 The consistent meaning canon says that a term used in
one sense in a body of law is ―presumed to bear the same
meaning‖ elsewhere. ANTONIN SCALIA & BRYAN A. GARNER,
READING LAW: THE INTERPRETATION OF LEGAL TEXTS 170 (2012).
The presumption is by no means irrebuttable. When context
indicates, the same term can be understood to be used in two
different ways in the same body of law. See id. at 172–73. Yet
context can also reinforce the presumption, and the canon of
the initial designation—physical observation. It has not, however,
identified any reason to call that basis for the sex designation into
question.
The majority goes off on some further tangents that miss this
nuance and misunderstand my position. In defending its view,
the court rejects as ―absurd[]‖ the notion that ―biological sex‖
might ―includ[e] the immutable genetic makeup of an
individual.‖ Supra ¶ 89. And it then argues at some length that a
birth certificate sex designation must therefore be a ―legal
classification‖ and not a ―biological‖ one, supra ¶ 89, and even
that ―any definition of ‗biological sex‘‖ must accordingly ―fail in
this context.‖ Supra ¶ 89 n.39. I find this puzzling. No one has
argued that the biological sex designation on a birth certificate
should be based on a chromosomal test. The question is not
presented, and I have not advanced this position. I have argued
instead that the basis for an amendment to a birth certificate sex
designation should be focused on the basis for the initial sex
designation—physical observation of anatomical manifestations
of sex. That is a legal classification based on a biological
classification. And there is nothing absurd about it.
The question presented goes not to the basis for the biological
determination (which is also the legal determination), but to
whether a statute that makes clear reference to that determination
can be viewed as compatible with a determination of a person‘s
gender identity. It cannot.
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consistent usage is strongest where, as here, the same term is used
in closely connected ways.107
¶226 The connection here is unmistakable. It follows from
the fact that the statute fails to speak independently of a standard
for a ―change‖ in the designation of a person‘s ―sex‖—the basis
for such an order is simply presumed. In this setting, there is an
implicit assumption that the ―sex‖ designation subject to
―change‖ is the same sort of designation being made in the first
place. Where all agree that the original ―sex‖ designation on a
birth certificate is an objective determination based on observation
of physical characteristics, the statutory reference to an order for
an amendment to the same designation on the same document must
be understood in the same way.
¶227 The majority‘s contrary conclusion is rooted in part in
its consideration of an entirely distinct body of law—in a
definition of ―sex‖ in the Utah Fair Housing Act. See supra ¶ 107
n.50 (stating that the court is looking to the statute ―for
guidance‖). Because that statute prohibits discrimination in
housing on the basis of ―sex,‖ and says that ―‗sex‘ means gender,‖
not ―gender means sex,‖ the court concludes that ―the legislature,
in its wisdom, conferred broader meaning on the term ‗sex.‘‖
Supra ¶ 4 n.5 (quoting UTAH CODE § 57-21-2(22)). But the court
identifies no basis for extending the Fair Housing Act definition of
―sex‖ to the use of that term in the context of birth certificate
amendments. It nowhere explains, moreover, how it can get its
particular ―broader meaning‖—―appropriate care or treatment for
gender transitioning or change‖—out of the Fair Housing Act.
Ultimately, the Fair Housing Act definitions cut squarely against
the majority‘s position.
¶228 The case law makes clear that the consistent meaning
presumption is particularly sensitive to context. The presumption
―can hardly be said to apply across the whole corpus juris.‖ SCALIA
& GARNER, supra, at 172. Where two bodies of law are clearly
__________________________________________________________
107 See Off. of Pub. Advoc. v. Superior Court, Third Judicial Dist.,
462 P.3d 1000, 1006 (Alaska 2020) (employing the consistent
meaning canon where two statutes were ―enacted close in time‖
and ―addresse[d] related subject matter‖); ANTONIN SCALIA &
BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL
TEXTS 172–73 (2012) (noting that the canon is strongest where the
connection between two statutory provisions is clearest).
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distinct from each other, ―[t]he mere fact that‖ the same words are
used in each area of law ―is not a sufficient reason‖ for treating
the meaning established in one body of law ―as authoritative on
the construction of another statute.‖ Rupert Cross, Precedent in
English Law 192 (1961)Id. at 172–73 (citation omitted). The further
removed the two bodies of law are from each other (in subject and
time of enactment), the weaker the presumption of consistent
meaning. Id. at 173. This defeats the majority‘s reliance on the Fair
Housing Act definition of ―sex.‖ The cited definition in the Fair
Housing Act was enacted in 1989—fourteen years removed from
the statute at issue here. Housing discrimination, moreover, bears
little connection to birth certificate amendments. The clearly closer
connection is to the use of ―sex‖ in the initial formation of the
birth certificate. For these reasons, the Fair Housing Act definition
is hardly supportive of the majority‘s view.
¶229 The majority never explains, moreover, how it gets
from the Fair Housing Act‘s notion that ―sex means gender‖ to the
idea that ―sex means care or treatment for gender transitioning or
change.‖ It does not—even under the Fair Housing Act. The cited
definition of ―sex‖ is truncated in the quote in the majority
opinion. Under the housing statute, ―‗sex‘ means gender and
includes pregnancy, childbirth, and disabilities related to pregnancy and
childbirth.‖ UTAH CODE § 57-21-2(22) (emphasis added). The
italicized language is significant. It indicates that even in the Fair
Housing Act, the legislature isn‘t using ―sex‖ (or ―gender‖) to
refer to care or treatment for gender transitioning or change, but
to aspects of sex that are related to the biological indicators of sex
(like pregnancy and childbirth). This conclusion is reinforced by
the Fair Housing Act‘s separate prohibition of discrimination
based on ―gender identity,‖ and the separate definition of that
term as incorporating ―the meaning provided in the Diagnostic
and Statistical Manual (DSM-5),‖ which may be established by
evidence of ―medical history, care or treatment of the gender
identity, consistent and uniform assertion of the gender identity,
or other evidence that the gender identity is sincerely held, part of
a person‘s core identity, and not being asserted for an improper
purpose.” Id. § 57-21-2(16).
¶230 This is telling. Perhaps the Fair Housing Act
definitions in some way suggest that the legislature ―conferred
broader meaning to the term ‗sex‘‖ than the term would bear in
other contexts. But there is no reason to view the housing
definition to apply in the birth certificate context. And the housing
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definitions, if anything, confirm that ―sex,‖ however broad, does
not mean ―care or treatment for gender transitioning or change.‖
¶231 The majority, in all events, does not ultimately apply
the Fair Housing Act definition of ―gender identity.‖ It rejects that
statute‘s requirement of proof that gender identity is ―sincerely
held‖ and ―part of a person‘s core identity.‖ Supra ¶ 107. And the
court turns instead to standards of gender identity applied by the
Social Security Administration, the State Department, and courts
in other states.108 See supra ¶¶ 108–10.
¶232 The majority‘s standard, moreover, does not even
align with the standards promulgated by the Social Security
Administration and State Department or with many of the cited
standards adopted in other states.109 The federal standards require
__________________________________________________________
108 The majority also refers to orders entered in twelve cases
filed in our Utah district courts, asserting that such orders ―show‖
that ―an objective medical standard‖ is ―workable.‖ Supra ¶ 111.
But the cited orders can hardly be viewed as representative of the
standards applied by our Utah district courts. They are just a
sampling of orders submitted by the petitioners in support of
their proposed standard. The cited Utah orders, moreover, are not
supportive of the majority‘s approach in any event. They do not
suggest that our district courts have provided for an amendment
to a sex designation on a birth certificate based on proof of
―appropriate clinical care or treatment for gender transition or
change.‖ Several of them refer to completed surgery or ongoing
hormone therapy, neither of which is required by the majority‘s
new standard. See In re Davis, No. 173900047, at 2 (Utah Dist. Ct.
Second Dist. Mar. 27, 2017) (petitioner had undergone irreversible
genital reassignment surgery); In re Collins, No. 153902244, at 3
(Utah Dist. Ct. Third Dist. Dec. 3, 2015) (petitioner had undergone
hormonal replacement therapy, had been receiving female
hormones for decades, and had undergone gender reassignment
surgery).
109 The State Department also recognizes a difference between
an individual who is still undergoing transition, and one who has
completed that transition, although it does not require surgery as
evidence that a sex transition is complete. Change of Sex Marker,
U.S. DEP‘T OF STATE,
https://travel.state.gov/content/travel/en/passports/need-
passport/change-of-sex-marker.html (last visited April 22, 2021).
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certification of clinical treatment from a Doctor of Medicine or
Doctor of Osteopathy.110 And two of the cited state standards
require sex-reassignment surgery.111
¶233 The majority‘s standard is different. Our court
provides for a change in the sex designation on a birth certificate
upon proof of any form of ―appropriate clinical care or treatment
for gender transitioning or change.‖ Supra ¶ 18. This is not a
standard rooted in the language of our Utah statute, or any
plausible understanding of ―sex‖ in this context. It is a sweeping
new standard formulated by this court.112
__________________________________________________________
110 Program Operations Manual System, RM 10212.200 Changing
Numident Data for Reason other than Name Change, SOC. SEC.
ADMIN., (Jun. 13, 2013),
https://secure.ssa.gov/poms.nsf/lnx/0110212200 (last visited
April 22, 2021); Change of Sex Marker, U.S. DEP‘T OF STATE,
https://travel.state.gov/content/travel/en/passports/need-
passport/change-of-sex-marker.html (last visited March 26, 2021).
111See supra ¶ 110; In re McDannell, 2016 WL 482471, at *4 (Del.
Ct. Com. Pl. Feb. 5, 2016); In re Heilig, 816 A.2d 68, 86 (Md. 2003).
112 The Chief Justice stops short of endorsing the majority‘s
substantive standard. Instead of requiring proof of ―appropriate
clinical care or treatment for gender transitioning or change,‖ the
Chief Justice proposes to require only proof of ―proper cause‖—a
standard (imported from the name-change setting) that forecloses
petitions filed ―for a wrongful or fraudulent purpose.‖ See supra
¶ 131. I would not equate the concepts of name-change and sex-
change for reasons explained below. See infra ¶¶ 270–80. But I also
see problems with the Chief Justice‘s proposed standard on its
own terms.
―Proper cause‖ is not a substantive standard. It does not define
the relevant concept of a designation of a person‘s ―sex.‖ It is
simply the articulation of a negative basis for rejecting a petition
filed for improper reasons. And without some substantive
standard or articulation of the operative concept of the
designation of a person‘s ―sex‖ on a birth certificate, we will be
left with nothing but unbridled judicial discretion on what is
―proper.‖ See supra ¶ 132 (suggesting the need to let the
―parameters of the scope and nature of the evidence necessary to
(continued . . .)
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2. Elephants in Mouseholes
¶234 Even if there were some ambiguity as to the meaning
of ―sex‖ in the birth certificate context, the ambiguity could not
properly be viewed as a basis for this court to establish an evolved
concept of ―gender identity‖ for birth certificate amendments.
Any such ambiguity cuts the other way. A legislature that sees no
reason to speak to the ―standard‖ for issuance of an order for
amendment of the sex designation on a birth certificate is not
delegating policymaking power to the courts on a matter with the
potential for momentous implications. It is presuming that the law
is not breaking any new ground, and carrying forward the settled,
static meaning of a ―sex‖ designation on a birth certificate.
¶235 This is confirmed by another canon of interpretation—
the presumption that legislatures ―do[] not . . . hide elephants in
mouseholes.‖ Rutherford v. Talisker, Canyons Fin., Co., LLC, 2019
UT 27, ¶ 53, 445 P.3d 474 (alteration in original) (quoting Whitman
v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001)). This canon is
premised on the understanding that legislative bodies do not
―alter the fundamental details‖ of our law ―in vague terms or
ancillary provisions.‖ Whitman, 531 U.S. at 468. The canon has
been applied as the basis for this court‘s reluctance to find that our
legislature altered the common law doctrine of primary
assumption of risk in a statute that did not explicitly use the term
―negligence‖ in its regulation of the liability of ski area operators.
Rutherford, 2019 UT 27, ¶ 53. And in the federal realm, the courts
have invoked the canon as the basis for the conclusion that the
Food Drug and Cosmetic Act did not delegate to the Food and
Drug Administration (FDA) the power to regulate cigarettes and
nicotine as a ―drug‖ in the absence of a clear statement of such
intention, see Food & Drug Admin. v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 159–61 (2000), and that the Controlled
establish proper cause . . . to develop over time, as district court
judges exercise . . . broad discretion‖).
The ―proper cause‖ standard thus kicks the can down the road
on what should count as a salient showing of a change in a
person‘s ―sex‖ as reflected on a birth certificate. In this sense, it is
an invitation for judicial policymaking on a case-by-case basis.
And it is accordingly no more defensible than the standard
established by the majority.
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Substances Act did not delegate to the Attorney General ―broad
and unusual authority‖ to prohibit physicians from prescribing
drugs for use in physician-assisted suicide ―through an implicit
delegation‖ in the statute‘s ―registration provision.‖ Gonzales v.
Oregon, 546 U.S. 243, 267 (2006).
¶236 These principles are applicable here. The delegation of
common-law power to set a new, evolving standard for the
issuance of an order for amendment of the sex designation on a
birth certificate is a big deal. Because such sex designations have
sweeping effects on our society, it is highly unlikely that the
legislature would have made an ―implicit delegation‖ of such
common law power. This is quite an elephant. And the statute
governing only the effect of such an order is a tiny mousehole.
¶237 Consider the sweeping nature of the majority‘s
holding. In establishing a new standard for an order for a sex
change designation on a birth certificate, the court cites a Fair
Housing Act definition of ―gender identity,‖ standards
implemented in recent years by the Social Security Administration
and the United States State Department, decisions handed down
in the past few years by the appellate courts of states governed by
laws distinct from our Utah law (none of them involving a statute
phrased as ours is), and a few unpublished orders of our Utah
district courts. Supra ¶¶ 108–11. None of these sources defines a
change in a ―sex‖ designation on a birth certificate in the manner
the court does. So the majority is not citing these authorities as
somehow establishing the meaning of a change in a sex
designation on a birth certificate as those terms are used in our
Utah statute. It is simply referring to them in the course of an
exercise of its own asserted common-law authority.
¶238 The 1975 Utah Legislature was not delegating such
sweeping policymaking power to the courts. It was not hiding
such an enormous elephant in the obscure mousehole of a
provision governing only the effect of an order for an amendment
to the sex designation on a birth certificate.
¶239 The statute applies ―[w]hen a person born in this state
has a . . . sex change approved by an order of a Utah district
court.‖ UTAH CODE § 26-2-11. And this statutory mousehole
implies the anticipation of a mere mouse—a straightforward
showing of a person‘s ―sex change‖ that can be made in the same
way the initial sex designation was made. If the initial sex
designation on the birth certificate is based on ―biological sex as
evidenced by chromosomes, genitals, and other physical
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ASSOCIATE CHIEF JUSTICE LEE, dissenting
characteristics,‖ then the ―change‖ to that designation should be
understood to carry forward that same standard.
¶240 As noted above, such a showing could be made
through simple, straightforward evidence—proof that the initial
designation was made initially in error, that an ―intersex‖
person‘s sex designation has been proven wrong over time, or
that the biological markers of sex have been altered by medical
interventions like sex-reassignment surgery. A change in the sex
designation on a birth certificate on these grounds fits within the
statutory understanding of the ―sex‖ designation on a birth
certificate. It would thus be a ―mouse.‖ But the changes endorsed
by the court today are another matter. They are an enormous
elephant that could not have been contemplated by the Utah
Legislature in 1975.
B. Delegation of Common-Law Policymaking Power?
¶241 The 1975 statute may not expressly articulate a
―substantive standard‖ for the entry of a birth certificate
amendment order. See supra ¶ 54. But it does speak to the type or
―kind[]‖ of birth certificate designation at issue. See supra
¶ 123.And any supposed ―gap‖ in the statute cannot be taken as a
delegation of common-law power for the courts to update the law
in accordance with our evolved views of gender identity.
¶242 The majority seeks to root its contrary conclusion in
three grounds: (1) the assertion that our courts retain broad
common-law power to fill in ―gaps‖ in statutes except where the
exercise of such power ―conflicts with statutory guidance,‖ supra
¶ 53; (2) the notion that the reference to ―sex change‖ is
―combined‖ with ―name change,‖ which purportedly is a
delegation of authority to develop a common-law of sex change,
supra ¶ 50; and (3) the observation that the registrar is bound to
amend birth certificates in response to orders of ―a court of
competent jurisdiction of another state or a province of
Canada‖—a fact the court takes as an indication that the
legislature has prescribed no standard of sex at all, but has left the
matter to the courts (whether in Utah or elsewhere). Supra ¶ 78
(emphasis omitted).
¶243 All of these premises collapse on closer scrutiny. And
the majority‘s analysis is undermined not only by the cases it cites,
but also by the canon of constitutional avoidance (under the non-
delegation doctrine).
1. Legislative Gaps
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¶244 The court‘s first premise is built on the notion of a
―gap‖ in a statute that speaks only to the effect of a court order.
But the supposed gap cuts against the majority‘s position for
reasons set forth above—the gap should be filled in light of the
established meaning of ―sex‖ in the birth certificate context, under
the canon of consistent meaning and the ―elephants in
mouseholes‖ canon.
¶245 The court‘s notion of its ―gap-filling‖ role is a novel
one in any event. It finds no support in, and is in fact undermined
by, the Utah cases cited in the majority opinion. 113
¶246 Our Utah Code and case law concededly recognize
the residual authority of the common law. By statute, our
legislature long ago adopted ―[t]he common law of England so far
as it is not repugnant to, or in conflict with, the constitution or
laws of the United States, or the constitution or laws of this state,
and so far only as it is consistent with and adapted to the natural
and physical conditions of this state and the necessities of the
people hereof.‖ UTAH CODE § 68-3-1. And our opinions have
reinforced that the common law retains its power ―[i]n the absence
of applicable constitutional or statutory authority.‖ Spackman ex
rel. Spackman v. Bd. of Educ. of Box Elder Cty. Sch. Dist., 2000 UT 87,
¶ 20, 16 P.3d 533.
¶247 But the ―common law‖ is not an invitation for courts
to search for gaps in the law to fill in with judicial policy. It is an
established body of case law, identifying a range of rights and
duties residing outside the positive law set forth in statutes and
constitutions. See S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917)
(Holmes, J., dissenting) (―The common law is not a brooding
omnipresence in the sky, but the articulate voice of some
sovereign or quasi sovereign that can be identified.‖); Common
Law, BLACK‘S LAW DICTIONARY (11th ed. 2019) (―The body of law
derived from judicial decisions, rather than from statutes or
constitutions.‖). The rights and duties established in that body of
case law of course are subject to evolution and development over
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113 In other jurisdictions, the case law may occasionally assert a
prerogative of an ―inherent equity power of courts of general
jurisdiction‖ that is sufficiently sweeping to encompass the
majority‘s approach. See supra ¶ 56 (quoting In re Change of Birth
Certificate, 22 N.E.3d 707, 709 (Ind. Ct. App. 2014)). But our Utah
case law leaves no room for this approach.
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ASSOCIATE CHIEF JUSTICE LEE, dissenting
time. But it is a body of law, not a basis for freestanding judicial
policy.
¶248 This point is established by the majority‘s own
precedent. Absent legislative abrogation, existing bodies of
common law ―retain‖ their ―authority.‖ Supra ¶ 50 n.22 (quoting
Williamson v. Farrell, 2019 UT App 123, ¶ 17, 447 P.3d 131). And
we do not lightly presume that the legislature meant to abolish
established bodies of common law by legislation. Supra ¶ 50 n.22
(citing Anderson v. Bell, 2010 UT 47, ¶ 16 n.5, 234 P.3d 1147). But
those principles presuppose the existence of established bodies of
common law to be retained, or to avoid abolishing. If and when
there is no existing body of common law, there is no basis for the
conclusion that the legislature meant to delegate the power to
create it out of whole cloth.
¶249 Our decision in Rawcliffe v. Anciaux, 2017 UT 72, 416
P.3d 362, is not to the contrary. There we simply held that the
common law may ―assist[] in defining the scope of‖ common-law
terms used in statutes. Id. ¶ 14. We did not hold that the only limit
on our exercise of common-law power is that it not directly
―conflict[] with‖ a governing statute. Supra ¶ 53.
¶250 There are established bodies of common law on a
wide range of subjects. The first-year law student‘s curriculum is
focused on some of these subject areas—on property, contract,
and tort law, and the ―common law‖ of crimes (though the latter
is completely abolished in Utah, see UTAH CODE § 76-1-105). That
list is by no means exhaustive. Another prime example is the law
of remedies—a body of case law setting forth background
standards and principles for damages and injunctive relief to be
awarded across a range of claims.
¶251 In these fields, a gap in a statute may be taken as a
reservation of retained common law power. But the same does not
hold in every field of law. Some fields are purely statutory or
administrative. There is no common law, for example, of
hazardous waste permits, or hunting licenses, or Medicare. And
there is thus no ―retained‖ common law to fill in ―gaps‖ in these
fields. If the legislature leaves a gap in these areas, it must be
filled in by reference to the language and structure of the statute—
not by the invention of some new body of ―common law.‖
¶252 This principle is established by our decision in
Mariemont Corp. v. White City Water Improvement Dist., 958 P.2d
222 (Utah 1998). There we confronted a ―gap‖ in a statute
governing petitions to withdraw from a water improvement
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district—in a provision that allowed for withdrawal upon the
filing of a petition by ―a majority of the real property owners‖ in a
particular territory, id. at 223, but did not speak to ―whether
names [could] be added to or removed from withdrawal
petitions‖ after they had been filed. Id. at 226. Despite the gap, we
emphasized the need to base our decision on the ―language‖ and
structure of the statute and an ―attempt to harmonize the various
provisions‖ of the statute. Id. at 227. And we openly repudiated
the idea of a court ―fashion[ing] a statutory rule out of whole cloth
without having any idea of the legislature‘s intentions.‖ Id.
¶253 The court‘s new standard for designation of a person‘s
―sex‖ on a birth certificate is of the ―whole cloth‖ variety. 114 There
is no common law that governs this field. And there is no basis for
the majority‘s assertion of common-law power.
¶254 The court‘s cited cases are not to the contrary. They
undermine the majority‘s approach and support my position.
Spackman ex rel. Spackman v. Board of Education
¶255 The court did not invoke the ―common law‖ in
Spackman as a matter of filling in a gap in our state constitutional
law—in the sense of an exercise of power to make new law as we
best saw fit. In establishing standards for damages remedies for
constitutional violations, we expressly held that ―a court‘s
authority to do so arises from the common law‖ of remedies.
Spackman, 2000 UT 87, ¶ 20. We thus cited provisions from the
Restatement (Second) of Torts and established cases on the
common law of remedies. Id. And we nowhere indicated that a
__________________________________________________________
114 The majority broadly disclaims that it is making such a
move. See supra ¶ 53. But it also fails to identify any basis for its
new standard in the language of the statute or in any body of
common-law. And its decision is thus by definition ―out of whole
cloth‖—the cloth of a new court-made standard.
A threshold element of the court‘s new standard is borrowed
from the common-law of name changes. See supra ¶ 18 (requiring
proof that sex change petition is not for a ―wrongful or fraudulent
purpose‖). But the core standard of ―gender identity‖ as ―sex‖ is
rooted purely in the court‘s own analysis of policy considerations.
This standard bears no relation to any element of a common-law
name-change proceeding. And the court has identified no basis
for its authority to establish such a standard.
111
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perceived ―gap‖ in the law was an invitation for us to make pure
policy out of whole cloth. To the contrary, we established a basis
for constitutional remedies by applying and extending a
traditional body of common law.
Rawcliffe v. Anciaux
¶256 Rawcliffe does not support the assertion of judicial
power to inject new judicial policy into a statutory scheme so long
as it does not directly ―conflict[] with‖ enacted statutes. Supra
¶ 53. The cited language is taken out of context. And the context
undermines the majority‘s approach and reinforces my position.
¶257 The statute at issue in Rawcliffe ―codified . . . common
law duties‖ of corporate officers and directors set forth in ―our
precedent.‖ Rawcliffe, 2017 UT 72, ¶ 14. Because the statute itself
did not define the duties incorporated from the common law, our
Rawcliffe decision followed the presumption that statutes that
borrow common-law terms of art are understood to carry forward
―the legal tradition and meaning‖ of those terms ―accumulated‖
in historical ―practice‖ in the case law. Id. (quoting Maxfield v.
Herbert, 2012 UT 44, ¶ 31, 284 P.3d 647). In that setting, we held
that the meaning borrowed from the common law could not be
accepted if it ―conflict[s] with‖ the terms of the statute. Id.¶258 In so stating, we did not establish the power of a court
to formulate a brand new body of common law aimed at updating
or expanding the reach of a statute. We did not overrule the
proscription of a court ―fashion[ing] a statutory rule out of whole
cloth without having any idea of the legislature‘s intentions.‖
Mariemont Corp., 958 P.2d at 227. And we did not hold that such
power may be exercised so long as it does not ―conflict with‖ the
governing terms of a statute.
Cox v. Laycock
¶259 This is also clear from the Cox v. Laycock decision. In
that case we were interpreting a provision of the Election Code
that lacked a provision ―describ[ing] how to fill a candidate
vacancy in the case of an annulled primary election.‖ Cox v.
Laycock, 2015 UT 20, ¶ 41, 345 P.3d 689. Despite this gap, we did
not fill it on the basis of our judicial policy preferences, or suggest
that there was a basis for doing so in some sort of ―common law‖
of election vacancy filling. We simply ―analyze[d] the act in its
entirety‖ and sought to ―harmonize its provisions in accordance
with the legislative intent and purpose.‖ Id. ¶ 42 (quoting
Mariemont Corp., 958 P.2d at 225).
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¶260 The Cox decision thus further undermines the
majority‘s decision. If we were following the Cox approach, we
would not be fashioning a new standard of ―sex‖ based on our
own ―common law‖ policy preferences; we would be
harmonizing the law by interpreting the statutory reference to an
order for an amendment to a ―sex‖ designation in harmony with
the way the sex designation is made on the birth certificate in the
first instance.
Whyte v. Blair
¶261 The majority cites Whyte v. Blair as a supposed
example of our court ―inject[ing] meaning‖ into statutes under
our independent power to make common law policy. Supra ¶ 52.
But the Whyte case does not support the majority‘s approach.
Again, it contradicts it.
¶262 The statute at issue in Whyte abrogated a longstanding
statutory prohibition of ―common law marriage‖ in Utah. 885
P.2d 791, 793 (Utah 1994). It thus authorized our courts to enter
orders recognizing a ―marriage . . . not solemnized‖ formally
under the code. UTAH CODE § 30-1-4.5. And this court interpreted
the statute to incorporate (at least in part) settled ―common law‖
standards for establishing an unsolemnized marriage. 885 P.2d at
794.
¶263 Our analysis in Whyte was not the assertion of
independent policymaking power of the court. We were not
formulating a new standard of ―common law marriage,‖ or
prescribing our own view of ideal ―factors‖ for the determination
of person‘s marital status. We were interpreting a statute that
incorporated the language of settled common law—and that in
fact was introduced in the legislature ―as a common law marriage
provision.‖ Id. at 793. The statute in question was interpreted as a
―codification of common law marriage principles.‖ Id. And we
accordingly interpreted it as such.
¶264 The statute in question made broad reference to the
notion of a ―marriage‖ that was not ―solemnized‖ under Utah
Code section 30-1-4.5. It also incorporated factors long considered
in the common law case law—capacity to give consent,
cohabitation, mutual assumption of marital rights and duties, and
reputation as husband and wife. UTAH CODE § 30-1-4.5(1). The
majority is thus wrong to assert that ―none‖ of the common law
factors cited in Whyte ―appear in‖ the governing statute. Supra
¶ 52. And in any event, Whyte is not a case in which the court was
asserting the power to create a new common law standard. To the
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contrary, we were interpreting a statutory ―codification‖ of an
established body of law as the adoption of established standards.
Anderson v. Bell
¶265 The majority cites Anderson v. Bell for the proposition
that our common-law authority neither depends on nor is easily
limited by statutes. Supra ¶ 50 n.22. That may be true, but it‘s
irrelevant to defining the scope of our power to establish new
fields of common law.
¶266 Anderson establishes that not ―every instance that a
statutory scheme and the common law converge . . . necessarily
mean[s] the legislature has abolished the common law.‖ 2010 UT
47, ¶ 16 n.5, 234 P.3d 1147, superseded by statute on other grounds,
UTAH CODE § 20A-9-502. When a statutory definition ―mirrors‖ a
common law definition, Anderson endorses a presumption that the
statute embraced the common law definition. Id. ¶ 16 & n.5. In
Anderson, the court concluded that the statutory definition of
―signature‖ mirrored the common law definition of that term.
And it thus interpreted the statute to carry forward the common
law definition. Id. ¶ 16.
¶267 That analysis presupposes the existence of a field of
―common law.‖ And a case defining the relationship between the
common law and statutory definitions says little about the extent
of our common law powers. Much less does it show that a
statutory ambiguity can create common law powers. To the
contrary, Anderson instructs courts on how to interpret a statute
that adopts a common-law definition.
Williamson v. Farrell
¶268 The same goes for the court of appeals‘ analysis in
Williamson v. Farrell. In applying a set of standards for the
disposition of declaratory judgment actions, the court of appeals
admittedly was applying ―four ‗threshold elements‘ for
declaratory judgment actions‖ that did not ―appear anywhere‖ in
the Utah Declaratory Judgment Act. 2019 UT App 123, ¶ 17, 447
P.3d 131. But the court of appeals was not prescribing those
factors anew, out of whole cloth. It was observing that these
factors were deeply embedded in a body of common law case law,
and interpreting a statute that authorized ―declaratory
judgments‖ but did not ―contain provisions setting forth the
specific elements of a proper declaratory judgment claim.‖ Id.
¶ 11.
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¶269 This bears little relation to the majority‘s analysis in
this case. Here we are not dealing with a statute that incorporates
a term that is transplanted from the common law. We are
presented with a statute that speaks of a change in a ―sex‖
determination on a birth certificate—a matter that has never had
any common law meaning. And that forecloses the majority‘s
reliance on any supposed common law power, under Williamson
and under all of the other cases it relies on.
2. Combination with Name Change
¶270 The majority seeks to avoid the above problems by
noting that the birth certificate statute ―combine[s]‖ together the
notion of an amendment to a ―sex‖ designation on a birth
certificate with that of a ―name change‖ amendment to the same
document. Supra ¶ 50. Because there is an established body of case
law that was incorporated into our statutory proceedings for a
―name change‖ in Utah, the court asserts that the court must have
been implicitly delegating to us the common law power to
formulate a new common law standard for a birth certificate ―sex
change.‖ Supra ¶¶ 50–51 (asserting that because the legislature
―knowingly and purposefully combined name and sex changes
together‖, there is a basis for our ―common-law authority‖ to
formulate a new standard not prescribed by the legislature).115
__________________________________________________________
115 The Chief Justice seeks to draw a different inference from
the fact that ―the terms ‗sex change‘ and ‗name change‘ are
bundled together‖ in the statute. Supra ¶ 124. While recognizing
that these forms of amendment are ―different . . . both in
magnitude and legal consequence,‖ the Chief Justice asserts that
―the legislature appears to be focused on the way in which they
are similar—they are both identifiers on a birth certificate.” Supra
¶ 124. I take the point as far as it goes. But I cannot see how the
parallel structure of the statute can be viewed to dictate the
application of a name-change standard to adjudication of a sex-
change petition.
The designation of a person‘s name is different from the
designation of a person‘s sex. And the threshold question on a
petition to change either designation is whether the petition is
addressed to the type or ―kind[] of birth certificate amendment[]
subject to the statute.‖ Supra ¶ 123. A name-change amendment is
thus available only if it involves a change to a person‘s ―name,‖
just as a sex-change amendment is available only if it involves a
(continued . . .)
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¶271 This does not follow from the cases cited by the
majority. Those cases, in fact, cut against its analysis.
¶272 We have certainly stated that ―a word or phrase [that]
is transplanted from another legal source . . . brings the old soil
with it.‖ Supra ¶ 50 (quoting Maxfield, 2012 UT 44, ¶ 31,. And the
birth certificate statute does borrow some language from the
common law—in the reference to an amendment to the birth
certificate under an order for a ―name change.‖ That phrase has
common law meaning. And our case law quite properly has
interpreted the Utah Code to have imported the common law
standard for a ―name change‖ proceeding under our statutes. See
In re Porter, 2001 UT 70, ¶ 8, 31 P.3d 519; In re Cruchelow, 926 P.2d
833, 834 (Utah 1996). It in no way follows, however, that ―[w]hen
the legislature transplanted‖ both ―name change‖ and ―sex
change‖ in the same statute, ―it statutorily planted both ‗sex
change‘ and ‗name change‘ in the latter‘s ‗old soil,‘‖ much less
that it meant for us to establish a ―common law‖ standard for ―sex
change.‖ Supra ¶ 50.
¶273 The court‘s syllogism is oversimplified. Our Maxfield
opinion does not say that the use of one term imported from the
common law imbues the entire statute with common-law
meaning. In fact it draws a distinction between a ―word or
phrase‖ borrowed from ―the common law‖ and a term imported
from ―legislation.‖ Maxfield, 2012 UT 44, ¶ 31. And it states that
each such legal ―term[] of art‖ is presumed to carry ―the legal
tradition and meaning‖ of its past practice, and ―the cluster of
ideas that were attached to each borrowed word in the body of
learning from which it was taken.‖ Id. (emphasis added) (citation
omitted). The full quote about transplants in Maxfield is this:
―[W]hen a word or phrase is ‗transplanted from another legal
source, whether the common law or other legislation, it brings the old
soil with it.‘‖ Id. (emphasis added) (quoting Felix Frankfurter,
Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527,
537 (1947)).
change to a person‘s ―sex.‖ The concepts of ―name‖ and ―sex‖ are
thus defined by the terms of the Utah Code. And the fact that the
two terms both can be said to fall within the category of
―identifier‖ is not a reason to equate the two concepts.
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¶274 This forecloses the majority‘s notion that the
legislature ―planted . . . ‗sex change‘ in the name change‘s ‗old
soil.‘‖ Supra ¶ 50. There is a common-law concept of and standard
for a legal ―name change.‖ But there has never been a common-
law concept of a ―sex change,‖ or a change in the legal designation
of a person‘s ―sex.‖ This is purely a statutory term, with a ―legal
tradition and meaning‖ and ―cluster of ideas‖ attached to it in the
birth certificate context. And for that reason Maxfield actively
undermines the majority‘s approach.
¶275 The majority thus identifies no support for its novel
assertion that a statutory term takes on common-law meaning
when ―combined‖ with common-law terms. And the court‘s
analysis misses a nuance in the canon of interpretation that it
relies on. A threshold principle, as noted, states ―[t]he age-old
principle . . . that words undefined in a statute are to be
interpreted and applied according to their common-law
meanings.‖ SCALIA & GARNER, supra, at 320. But this canon has an
important counterpart—the principle that a statute that employs a
term with an established meaning in a statutory field is presumed
to ―bear[] this same meaning‖ when adopted by the legislature. Id.
at 324. This is an aspect of the ―prior construction canon‖—the
principle that a term that has an established meaning in a
―particular field of law (to which the statute belongs)‖ is
interpreted to carry that same meaning in a statute enacted by a
legislature. Id.; see also Rutherford, 2019 UT 27, ¶ 62 (stating that a
term whose meaning is ―firmly established‖ in a particular field is
viewed as having been ―carried forward by the legislature‖).
¶276 This canon is sometimes invoked when a statute is
reenacted in the face of a conclusive construction of a statutory
term by a court of last resort. See SCALIA & GARNER, supra, at 324.
But it is not limited to this application. ―It applies as well‖ to an
established ―administrative interpretation‖ of a legal term in a
given field. Id. Such an interpretation is part of the statute‘s
context. See id. We understand that a legal term with accepted
meaning in a given field ―bears this same meaning‖ when it is
imported into a statute. Id.
¶277 Our Utah case law establishes this precise position.
Where our legislature uses terms that have a settled
―administrative interpretation‖ in a particular field, that
interpretation is understood to be carried forward in the statute.
New Park Mining Co. v. State Tax Comm’n, 196 P.2d 485, 486 (Utah
1948) (treating the reenactment of a tax statute addressed to ―net
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IN RE SEX CHANGE
ASSOCIATE CHIEF JUSTICE LEE, dissenting
income from . . . property during the taxable year‖ as the
legislative adoption of the ―administrative interpretation‖ of this
language by the Tax Commission).116 The United States Supreme
Court has likewise endorsed this view. See Fed. Deposit Ins. Corp. v.
Phila. Gear Corp., 476 U.S. 426, 436–37 (1986) (endorsing the same
canon in the context of Congress‘s adoption of a statute speaking
of a ―deposit‖ in the estate tax context; holding that federal
statutes adopting this language in this legal context are
understood to carry forward the established understanding of the
term).
¶278 The settled meaning of the ―sex‖ designation on a
birth certificate has been established at the ground level—in the
administration or practice of preparing and submitting birth
certificates. At that level, all agree that the administrative concept
of an original birth certificate ―sex‖ designation has long been
viewed as a matter of biological sex.117
¶279 The administration of the statute may not require or
call for an official interpretation by the Office of Vital Records.
―[R]ather, sex is designated (primarily) by medical professionals
who presumably are not versed in the nuances of administrative
definitions in the law.‖ Supra ¶ 53 n.23. But that just shows how
deeply embedded the administrative practice is. The long-settled
practice reflects the established administrative meaning of this
term. And the lack of a need for agency interpretation just shows
that the administrative practice is well-settled; it doesn‘t tell us
that there is no understanding that should be carried forward
under our law.
¶280 The majority‘s framework fails on this basis. As the
court itself notes, the birth certificate amendment statute
__________________________________________________________
116 In New Park Mining Company v. State Tax Commission, the
court ultimately resolved the case under statutory terms that it
deemed neither ―ambiguous [n]or uncertain.‖ 196 P.2d 485, 487
(Utah 1948). I would also resolve this case based on the statute‘s
plain meaning. See supra ¶¶ 207, 216. But the administrative
construction canon would resolve this case even if the meaning of
―sex‖ bore any meaningful ambiguity.
117 The agreement is not limited to members of this court.
Statutes and case law confirm this understanding. See supra ¶¶ 85;
89 n.40, 104, 219 n.103.
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articulates no express standard for an order for a ―change‖ to a
birth certificate ―sex‖ designation—it just presupposes the
authority for the issuance of such an order. That, again, is telling.
The ―same meaning‖ is presumed to be carried forward in the
legislature‘s presumption of court power to order a ―change‖ in
that same designation.
3. Delegation to Courts in Other Jurisdictions
¶281 The majority also seeks to support its assertion of
judicial policymaking power by noting that an amendment to a
Utah birth certificate is required in response to an order for a
change of a sex determination entered by ―a Utah district court or
a court of competent jurisdiction of another state or a province of
Canada.‖ Supra ¶ 78. A key premise of the majority‘s argument is
the assertion that our legislature is somehow powerless to
―control the standard for ‗sex‘ or ‗sex change‘ applied by any
other jurisdiction.‖ Supra ¶ 78. From that premise, the majority
reasons that the legislature must have meant to ―omit a
substantive standard from the statute,‖ supra ¶ 77 n.31, and thus
to leave the development of the operative standard to the courts—
whether in Utah or in other states or Canadian provinces.
¶282 The court‘s syllogism misses a key nuance that foils its
central premise. It is undoubtedly the case that the Utah
Legislature ―cannot control the standard for ‗sex‘ or ‗sex change‘‖
for another jurisdiction’s birth certificates. Supra ¶ 78. But the Utah
Legislature can and does control the legal standards defining the
content of Utah birth certificates. And no other state (or province
of Canada) is in a position to alter these Utah standards by
entering an order under substantive standards developed in
another jurisdiction.
¶283 The articulation of substantive state law is ―the very
essence of . . . sovereignty.‖ Toler v. Oakwood Smokeless Coal Corp.,
4 S.E.2d 364, 366 (Va. 1939). Utah has a ―right of supremacy‖ in
articulating the legal framework dictating the content of Utah
birth certificates. Id. And no other state is in a position to ―force‖
its laws on this state.118 Id.__________________________________________________________
118 I see no way to conclude that the majority is not opening
the door to ―other jurisdictions forcing their substantive law on
Utah.‖ Supra ¶ 123. The majority‘s analytical framework does just
that. If the statutory concept of a ―sex‖ designation on a birth
(continued . . .)
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¶284 The Utah Legislature has exercised the state‘s
sovereignty in statutes aimed at prescribing the content of the
vital records issued by the State of Utah. See UTAH CODE § 26-2-1
to 26-2-28 (providing framework for establishing the content of
Utah vital records). A Utah birth certificate is thus a Utah vital
record whose content is controlled by Utah law. And no other
state has authority to alter the content of a Utah record by
application of its contrary laws.
¶285 The Utah Legislature admittedly has directed our
courts to defer to the judgments of other courts—to Canadian
judgments as a matter of comity, and to judgments of the courts of
other states as a constitutional matter of full faith and credit. See
U.S. CONST. art. IV, § 1. But that isn‘t a delegation of power to
courts in other jurisdictions to alter substantive Utah law. It is a
simple recognition of the effect of those judgments.
¶286 Courts ―differentiate[] the credit owed to laws
(legislative measures and common law) and to judgments.‖ Baker
v. Gen. Motors Corp., 522 U.S. 222, 232 (1998). ―A final judgment in
one State, if rendered by a court with adjudicatory authority over
the subject matter and persons governed by the judgment,
qualifies for recognition throughout the land.‖ Id. at 223. But the
principle of full faith and credit ―does not compel ‗a state to
substitute the statutes of other states for its own statutes dealing
with a subject matter concerning which it is competent to
legislate.‘‖ Id. at 232 (quoting Pac. Emps. Ins. Co. v. Indus. Accident
Comm’n, 306 U.S. 493, 501 (1939)). It requires only deference to a
foreign state‘s judgment. And that state may be required to apply
Utah ―statutes dealing with a subject matter concerning which‖
our Utah Legislature is ―competent to legislate.‖ Id.certificate is not a matter of substantive Utah law, then the courts
of each state and Canadian province retain the power to apply
their own law in this arena. To sustain that conclusion, we would
have to assume that the Utah Legislature was delegating
substantive authority to every other state and Canadian province
to regulate and alter the framework for our Utah birth certificates.
The majority‘s analytical framework is mistaken. A Utah birth
certificate is a Utah vital record. Its terms and conditions are
governed by Utah law. And neither the majority nor the Chief
Justice has cited any support for their contrary views.
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¶287 There is no question that the Utah Legislature is
―competent‖ to regulate the content of our Utah vital records.
Utah law controls the content of Utah vital records. And courts in
other jurisdictions are thus bound to apply Utah law in the
issuance of any order directing the amendment of such records.119
¶288 Nothing in the statute at issue here suggests
otherwise, or indicates that the legislature was conferring power
on the courts of other states to impose their substantive law on the
content of a birth certificate on the registrar of vital records in
Utah. The statute provides only that Utah citizens and institutions
may avail themselves of the courts of other states and may be
controlled by such decisions. That leaves open the question of
which state‘s substantive law should govern those decisions. And
there can be no question that Utah law is the substantive law that
governs the content of Utah vital records.120
__________________________________________________________
119 Courts in other jurisdictions apply our Utah law with some
regularity—just as our courts do in reverse. See, e.g., Spann v. Am.
Express Travel Related Servs. Co., 224 S.W.3d 698, 708–13 (Tenn. Ct.
App. 2006) (applying Utah contract law to determine whether a
―class arbitration waiver clause in . . . cardmember agreements‖
was unconscionable‖); Federated Fin. Corp. of Am. v. Jenkins, 719
S.E.2d 48, 51–52 (N.C. Ct. App. 2011) (applying Utah law to
determine enforceability of a contract‘s forum selection clause).
This is simply a matter of choice of law.
120 The majority argues past my position in its response to the
above. We can take as a given that the Utah registrar lacks
―discretion‖ in this field and is bound to give ―respect and
reciprocity to court orders of sister jurisdictions.‖ Supra ¶ 78 n.33.
We can also stipulate that the legislature could have stated more
clearly its intent to have Utah law control the content of Utah
birth certificates. Supra ¶ 78 n.33. But my threshold points remain
unrefuted: (a) the statute speaks only to the full faith and credit to
be given to judgments of courts of other jurisdictions; (b) the Utah
registrar can give full faith and credit to such judgments without
delegating to other courts the power to amend or revise our Utah
substantive law; and (c) the content of a Utah birth certificate is a
matter governed by Utah law.
Courts in other jurisdictions would not be bound to follow our
Utah law on justiciability. But see supra ¶ 78 n.33 (suggesting that I
am arguing that courts in other states could not rule on non-
(continued . . .)
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¶289 The majority‘s contrary view will give rise to an
unworkable patchwork of standards for Utah birth certificates. It
will require the Utah registrar to reformulate and revise the
framework for a Utah birth certificate each time a court
establishes a new conception of a person‘s sex under the
substantive law of another state or province of Canada.
¶290 This is no mere hypothetical. Increasingly, courts in
various states are developing standards for non-binary and other
gender designations on birth certificates for persons born in those
states.121 Under the majority‘s view, our Utah birth certificates will
have to bow to and somehow incorporate these and other
standards. The result will be the transformation of a Utah birth
certificate into an evolving, patchwork certificate that will ebb and
flow in response to orders entered under the law of other states
and provinces of Canada.122 That is not what the Utah statute was
adversarial petitions). But they would be bound to follow Utah
law on the terms and conditions of a Utah vital record. That point
stands unrefuted. And it undermines the inference drawn by the
majority.
121 See CAL. HEALTH & SAFETY CODE § 103430(a) (West 2021)
(providing for an individual to petition for a court ―order for a
new birth certificate‖ recognizing ―a change in the petitioner‘s
gender as female, male, or nonbinary‖); WASH. REV. CODE
§ 70.58A.500(4) (allowing the state registrar to ―amend a vital
record to change the sex designation of the subject of the record,‖
including ―a nonbinary option for sex designation on the record‖);
Matter of Hollister, 470 P.3d 436, 441–43 (Or. Ct. App. 2020)
(determining that Oregon statute that provided for ―[a] circuit
court [to] order a legal change of sex‖ allowed for changes of
―legal sex‖ to ―male, female, or nonbinary‖).
122 As the majority notes, Canadian courts have established
certain rights of relevance to birth certificate designations under
the Constitution of Canada and the Ontario Human Rights Code.
Supra ¶ 78 n.32. I have no position on these cases, having no
knowledge of Canadian law and having had no opportunity to
review the briefs filed in the cited cases. But I do have a position
on the impact of these decisions on the content of Utah birth
certificates. Our Utah courts may be required to respect
judgments and orders entered in Canadian courts. Canadian
(continued . . .)
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mandating in requiring deference to decisions of the courts of
other states.
¶291 If anything, the statutory structure cuts against the
majority‘s approach. In placing Utah court decisions on par with
the decisions of courts of other states and provinces of Canada,
the legislature was indicating that the operative legal standard is
not one to be developed by any of these courts. Instead, the
standard is established by the settled understanding of a sex
designation on a birth certificate—as a reference to a designation
of biological sex based on physical observation.
¶292 The result is not a ―meaningless statute.‖ Supra ¶ 77
n.31. It is a statute that presupposes the existence of a settled
understanding of the basis for a sex designation, and sees no need
to articulate it in the express terms of the statute.
4. Constitutional Avoidance
¶293 The majority‘s inferences from the purported
statutory ―gap‖ also raise serious constitutional questions. To the
extent the court is asserting that there is literally ―no statute,‖
supra ¶ 45, that says anything of relevance to the operative concept
of an order for a change in a ―sex‖ designation on a birth
certificate, its analysis raises serious constitutional questions
under the non-delegation doctrine. And that is a further basis for
questioning the majority‘s approach.
¶294 Our constitution gives ―[l]egislative power‖ to the
Utah Legislature. UTAH CONST. art. VI, § 1. This is the authority to
make legislative policy by ―bill or joint resolution . . . passed . . .
with the assent of the majority of all the members elected to each
house of the Legislature.‖ Id. art. VI, § 22. Subject to further terms
and conditions set forth in article VI, the legislature has the power
to ―promulgat[e] . . . laws of general applicability . . . based on the
weighing of broad, competing policy considerations.‖ Carter v.
Lehi City, 2012 UT 2, ¶ 34, 269 P.3d 141; see also Rampton v. Barlow,
464 P.2d 378, 381 (Utah 1970) (speaking of the legislative power as
―the authority to make laws‖).
¶295 The constitutional doctrine of separation of powers
precludes the delegation or assignment of these powers. Under
human rights laws, however, do not control substantive Utah law,
and do not dictate the content of Utah birth certificates.
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article V, section 1, our government is ―divided into three distinct
departments, the Legislative, the Executive, and the Judicial.‖
UTAH CONST. art. V, § 1. And ―no person charged with the exercise
of powers properly belonging to one of these departments, shall
exercise any functions appertaining to either of the others, except
in . . . cases . . . expressly directed or permitted‖ by the Utah
Constitution. Id. This court has long held that this provision
―restricts the ability of the legislature to delegate legislative
functions to administrative agencies.‖ State v. Briggs, 2008 UT 83,
¶ 14, 199 P.3d 935 (alteration in original) (citation omitted). And
the same prohibition extends to the delegation of legislative
power to the courts. ―[J]udicial legislation‖ is foreclosed by the
Utah Constitution. State v. Johnson, 137 P. 632, 634 (Utah 1913). So
if there were truly an ―absence of legislative enactment‖ on the
nature of the change in a birth certificate sex designation
anticipated by the legislature, ―it would savor of
[unconstitutional] judicial legislation‖ for our court to make new
policy in this field. Id. at 635.
¶296 ―[T]he legislature is not required to expressly
authorize every administrative action, procedure, or rule‖
adopted by other governmental departments in the
implementation of a legislative scheme. Briggs, 2008 UT 83, ¶ 14.
But ―it is prohibited from delegating ‗core‘ or ‗essential‘ legislative
power or functions.‖ Id. (citation omitted) And if and when the
legislature fails even to identify a core, governing principle to
control the law applied in other branches of government, there is
an unconstitutional delegation of ―essential legislative functions,
which cannot be transferred.‖ Id. (citation omitted).
¶297 The line is clearly stated, though it may admit of
occasional fuzziness in application. Core ―legislative policy‖ must
be established by the legislature. Clayton v. Bennett, 298 P.2d 531,
535 (Utah 1956) (citation omitted). But once the core policy is
established, other departments of government may be called up to
prescribe rules governing the administration or ―execution‖ of the
policy. Id. (citation omitted)
¶298 To police this line, our court has held that rules
adopted by other departments must be in furtherance of ―the
legislative will expressed in statutory form.‖ Id. (citation omitted)
―Any discretion‖ left to other departments must be ―confined to a
designated field,‖ within which these departments are not making
an ―unfettered choice‖ but a decision based on the legislatively
enacted law. Rowell v. State Bd. of Agric., 99 P.2d 1, 3 (Utah 1940)
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(citation omitted). Legislative enactments must thus ―lay down
rules and tests to guide and control‖ other departments of
government ―in the exercise of the discretion granted‖ to them. Id.
at 4 (citation omitted). At a minimum, the legislature must ―mark
the course to be pursued, and the principles, facts, and purposes
to serve as guideposts to enable‖ another branch of government
―to carry out‖ not its ―own will or judgment but that of the
legislature.‖ Id. Other governmental departments may thus ―only
effect policy mandated by statute and cannot exercise a sweeping
power to create whatever rules they deem necessary.‖ Robinson,
2001 UT 21, ¶ 14.
¶299 These standards have been illuminated by their
application in a range of cases. This court has held, for example,
that the legislature may not delegate to the courts or to other
departments the unguided discretion to adopt a ―definition of a
crime‖ or prescribe ―the precise punishment therefor,‖ Briggs,
2008 UT 83, ¶ 14 (citation omitted); Johnson, 137 P. at 634
(describing such act as unconstitutional ―judicial legislation‖); to
make a wholly discretionary judgment as to ―the amount of [a]
penalty‖ as a ―sanction‖ for non-payment of a tax, Tite v. State Tax
Comm’n, 57 P.2d 734, 740 (Utah 1936); or to make a policy
determination as to ―the standards or purposes which are to
control‖ the fixing of prices for ―surplus milk,‖ Rowell, 99 P.2d at
4.
¶300 The analysis and holdings of these cases are
illustrative. Because there is no common law of crimes in Utah,
there is no independent power for our courts to make our own
policy judgments on the basis for filling in perceived gaps in
criminal enactments. To do so would ―savor of judicial
legislation‖—in unconstitutionally supplementing the criminal
code with our own policy preferences. Johnson, 137 P. at 635
(citation omitted). That principle holds even where our judicial
moral compass may ―regret[]‖ that there is a gap in a statute. Id.
(noting that it is up to the legislature to decide whether to fill in
such a gap).
¶301 Parallel concerns informed our decision to foreclose
the legislative power to delegate to other departments the amount
of a sanction for non-payment of a tax. In repudiating the
constitutionality of the delegation of that power to the tax
commission, we highlighted the legislature‘s failure to give the
commission any ―basis‖ for ―ascertain[ing] the amount of the
penalty.‖ Tite, 57 P.2d at 740. Absent such basis, we found a
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ASSOCIATE CHIEF JUSTICE LEE, dissenting
constitutional defect in any decision to give ―to the tax
commission the power to determine in its own judgment the
amount of the penalty.‖ Id. (emphasis added). And we viewed
that as a ―legislative function which could not be delegated.‖ Id.
¶302 This was also the basis for our decision to strike down
a purported delegation of the power to set state policy on price
fixing of surplus milk. In our Rowell opinion, we condemned the
alleged delegation of ―unfettered choice‖ to the board of
agriculture to establish legislative policy. See Rowell, 99 P.2d at 3
(quoting Elite Dairy Prod’s. v. Ten Eyck, 3 N.E.2d 606, 609 (N.Y.
1936)). And we emphasized that the legislature must ―mark the
course to be pursued‖ with a set of legislative ―guideposts,‖ and
could not delegate to another department the authority to carry
out its ―own will or judgment.‖ Id. at 4. Where the ―only
prerequisite‖ to the adoption of a new policy is the ―arbitrary
assent‖ of a non-legislative body, there is a ―naked delegation of
legislative power,‖ and a violation of the Utah Constitution. Id. at
5 (citation omitted).
¶303 The majority‘s decision runs afoul of these principles
to the extent it relies on its own purported power to make policy
as a matter of the common law. In asserting the authority to
engage in its own act of policymaking, the court contends that
―neither Utah Code section 26-2-11 nor any other statute contains
explicit standards or procedures for petitions for sex change.‖
Supra ¶ 47 (emphasis added). In light of the legislature‘s
purported failure to legislate, the court asserts the broad
prerogative of judicial policymaking as a matter of our ―common-
law authority,‖ which in its view ―is not dependent on or limited
by a statutory provision‖ that does not expressly foreclose such
power. Supra ¶ 50 n.22. These conclusions are mistaken not only
because any supposed gap can be filled through statutory
interpretation, but also because there is no such thing as a
―common law‖ of amendments to a sex designation on a birth
certificate. This is fatal under the above-cited case law. Even
assuming for the sake of argument that the legislature has left a
completely empty space that cannot be filled as a matter of
statutory interpretation, we could not on that basis assert the right
to engage in common-law policymaking.
¶304 The law on amendments to a sex designation on a
birth certificate is like the criminal law. This is not a common law
field—there is no common law that governs. And the purported
lack of any statutory standard cannot be taken as a ―naked
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delegation‖ of policymaking power. Rowell, 99 P.2d at 4. The
court‘s insistence on the existence of such power is the assertion of
the authority to make ―judicial legislation,‖ Johnson, 137 P. at 634,
which would run afoul of the Utah Constitution.
¶305 Again it is no answer to suggest that the court is just
―apply[ing] the common law associated with name-change
petitions.‖ Supra ¶ 54. The court has borrowed a single element
from the law of name changes—in the prohibition of petitions
sought for a ―wrongful or fraudulent purpose.‖ Supra ¶ 18. But
the core standard established by the court goes well beyond that
threshold requirement. The new standard for a ―gender identity‖
entry on a birth certificate is a matter of the majority‘s own
making. That standard bears no relation to any element of a
common-law name-change proceeding. It likewise bears no
connection to the text of the governing statute. And for these
reasons it amounts to an act of judicial legislation unbound by the
terms or conditions of any common-law or any statute.
¶306 The court‘s reformulation of the legislature‘s concept
of the sex designation on a birth certificate raises serious
constitutional concerns. To the extent the majority is suggesting
that there is no legislative standard that governs—and bare
policymaking power delegated to the courts—its approach should
be rejected as a matter of constitutional avoidance.
III. CONCLUSION
¶307 Since 1975 our Utah law has provided for the issuance
of a court order for amendment of the designation of a person‘s
―sex‖ on a birth certificate. This is a plain reference to biological
sex. It is not an invitation for judicial development of an evolved
standard of ―gender identity.‖
¶308 The majority‘s new standard provides for a birth
certificate amendment upon a showing of any care or treatment
for gender transitioning or change. This was not the law enacted
by our legislature in 1975. And it is not the law this court should
be adopting—least of all in a case in which we lack adversary
input from any adversary party.
¶309 The legislature can certainly ―override‖ our decision if
it disagrees. See supra ¶ 54. But that is no reason for us to step in to
do the legislature‘s job of amending or updating its laws. And it
surely is no justification for our court‘s decision to override
decades and even centuries of precedent on the core limits on our
judicial power.
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ASSOCIATE CHIEF JUSTICE LEE, dissenting
¶310 The legislature has no power to undo that decision. In
a system that gives our court the final say on constitutional
questions, we ourselves bear the responsibility to interpret and
abide by the limits on our constitutional power. We should hold
those limits sacred. We will rue the day that we cast them aside.
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