In the Matter of the Name Change of M.E.B., M.E.B.

FILED
Jun 21 2019, 7:51 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT
Michael R. Limrick
Hoover Hull Turner LLP
Indianapolis, Indiana
Megan Stuart
Indiana Legal Services, Inc.
Bloomington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Name June 21, 2019
Change of M.E.B., Court of Appeals Case No.
19A-MI-118
M.E.B.,
Appeal from the Orange Circuit
Appellant-Petitioner. Court
The Honorable Steven L. Owen,
Judge
Trial Court Cause No.
59C01-1809-MI-272
Baker, Judge.
Court of Appeals of Indiana | Opinion 19A-MI-118 | June 21, 2019 Page 1 of 11
[1] M.B. is a transgender woman who seeks to change her name and gender
marker. She filed requests to waive publication and seal the record pursuant to
Indiana Administrative Rule 9. The trial court found that she did not meet her
burden under Rule 9. We disagree. Therefore, we reverse and remand with
instructions that this case shall remain sealed and for further proceedings.
Facts
[2] M.B. was assigned male at birth but identifies as female. On September 24,
2018, M.B. filed a verified petition for change of name and gender marker and a
verified written request to prohibit public access pursuant to Administrative
Rule 9, asking the trial court to waive the publication requirement and seal the
record.
[3] In support of her request to prohibit public access, M.B. attested as follows: “I
am aware of the high rates of violence, discrimination, and invasion of privacy
against transgender people in Indiana and nationwide[.] I fear that if the public
knows I am transgender, I will personally experience violence, discrimination,
and an invasion of my privacy.” Appellant’s App. Vol. II p. 14. M.B. also
included data about “the high rates of violence, discrimination, [] invasion of
privacy,” and harassment both nationwide and in Indiana. Id. at 14-16. She
also noted that she feared for her safety
because of my personal experience with violence and
discrimination in my community. I know of a man in Orange
County who has outspoken anti-trans views and has said that if
he finds out about a trans person, he will kill them. I have also
Court of Appeals of Indiana | Opinion 19A-MI-118 | June 21, 2019 Page 2 of 11
faced discrimination from pharmacists when they discovered my
gender identity.
Id. at 16.
[4] On November 19, 2018, the trial court held a hearing on M.B.’s request to
prohibit public access. M.B. testified at the hearing. Among other things, she
explained her fears to the trial court:
• “I believe it would be dangerous [if people learned that she was changing
her name and gender marker]. There’s lots of people, both within the
United States and within the State of Indiana that would like to harm
transgender people and there are some in Orange County that I do know
of that it would be dangerous for me and I could get killed.” Tr. Vol. II
p. 8.
• “I have [personally faced discrimination based on gender identity] when
picking up my prescriptions at the Paoli Walmart pharmacy one of the
ladies that works there didn’t want to serve me and I had to get someone
else to help me.” Id. at 9.
• “. . . I’m on Facebook quite a bit and there’s someone who lives in Paoli,
they have a red truck and they said if they knew someone was
transgender and they saw them they would shoot them.” Id.
Following the hearing, M.B. filed a supplemental memorandum regarding the
request to prohibit public access.
[5] On December 4, 2018, the trial court denied M.B.’s request to prohibit public
access. Among other things, the trial court found as follows:
9. At the hearing, only the testimony of [M.B.] was
presented. [M.B.’s] 2 ½ minute testimony is summarized
as follows:
Court of Appeals of Indiana | Opinion 19A-MI-118 | June 21, 2019 Page 3 of 11
a. . . . [M.B.] testified that he/she [sic1] suffers from
“gender identity disorder”. [M.B.] stated his/her
[sic] name and gender marker are not correct.
[M.B.] “perceives” himself/herself [sic] as a female
however he/she [sic] was “assigned male
hardware”. This has created problems with how
he/she [sic] perceives himself/herself [sic]. [M.B.]
came to Court wearing women’s clothing and
hairstyle. [M.B.] had makeup on and spoke in a
feminine voice. He [sic] requested that Court refer
to her as [M.B.].
***
11. . . . [I]t is readily apparent that [M.B.’s] evidence falls
considerably short of proving by clear and convincing
evidence that publication of the notice of the petition in
this case would create “a significant risk of substantial
harm”. [M.B.] has failed to prove that following the
statutorily mandated procedure of giving notice, in and of
itself, would create a significant risk of substantial harm.
No evidence was presented of any violence that has
resulted to [M.B.] because of his/her [sic] trans-
gender [sic2] identity. No evidence was presented of
violence being perpetrated against an Indiana resident who
identifies as trans-gender [sic]. A generalized statement of
two violent acts occurring in [other states] is not persuasive
1
Throughout its order, the trial court fails or refuses to use M.B.’s preferred pronoun. The order is also
permeated with derision for M.B. We would hope that the trial courts of this state would show far greater
respect (as well as objectivity and impartiality) to all litigants appearing before them.
2
“Transgender” is one word, with no hyphen. See, e.g., Merriam-Webster Dictionary, at
https://www.merriam-webster.com/dictionary/transgender (last visited June 10, 2019); MacMillan
Dictionary, at https://www.macmillandictionary.com/us/dictionary/american/transgender (last visited June
10, 2019); Dictionary.com, at https://www.dictionary.com/browse/transgender (last visited June 10, 2019).
Court of Appeals of Indiana | Opinion 19A-MI-118 | June 21, 2019 Page 4 of 11
to ignore the legal requirements of obtaining a name
change pursuant to I.C. 34-28-2-3.
12. In [M.B.’s] pleadings there were concerns presented that
giving notice by publication could be harmful to [M.B.] by
“outing” the petitioners [sic] trans-gender [sic] identity or
making public his [sic] trans-gender [sic] diagnosis.
However, those concerns are not present here. The
Petitioners [sic] actions, dress, and demeanor profess to all
that he/she [sic] is trans-gender [sic]. It is not a secret or
private diagnosis. It is readily apparent and obvious to the
public. Following the statutorily mandated legal notice
requirement will not “out” [M.B.], [M.B.’s] actions have
already done that.
Appellant’s App. Vol. II p. 7-10. M.B. now brings this interlocutory appeal.
Discussion and Decision
[6] We apply a de novo standard of review to matters of law, including the
construction of statutes and rules. In re A.L., 81 N.E.3d 283, 288 (Ind. Ct. App.
2017). To the extent that our review requires us to review the trial court’s
factual determinations, we will apply a clearly erroneous standard. Id.[7] We have considered this set of issues before. In In re A.L., we found that “there
is no statutory requirement to publish notice of intent to change one’s gender
marker” and that “there is a statutory requirement to publish notice of intent to
change one’s name, but that statute is explicitly subject to Administrative Rule
9 . . . .” Id. at 285.
Court of Appeals of Indiana | Opinion 19A-MI-118 | June 21, 2019 Page 5 of 11
[8] In A.L., we noted that as a general rule, a petitioner seeking a name change
must give notice of the petition in a qualifying newspaper. The legislature has
deemed Indiana Code chapter 34-28-2 to be subject to Administrative Rule 9,
which provides that as a general rule, all court records are publicly accessible.
Ind. Administrative Rule 9(D)(1). There is, however, a list of exceptions to that
general rule, which are found in Rule 9(G). Relevant to this appeal is the
exception for cases in which “[a]ccess or dissemination of the Court record will
create a significant risk of substantial harm to the requestor . . . .” Admin. R.
9(G)(4)(a)(ii).3
[9] Here, the trial court found that M.B. did not provide sufficient evidence to
support her claim that maintaining public access to her case records (including
the requirement of notice publication) would create a significant risk of
substantial harm to her.
[10] The trial court had two primary reasons for its denial of M.B.’s Administrative
Rule 9 petition. First, it noted that she had failed to provide evidence of “any
violence that has resulted to [M.B.]” because of her gender identity or of
“violence being perpetrated against an Indiana resident” who identifies as
3
We also note that this case may fall under the exception for case records that are excluded from public
access or declared confidential by Indiana statute or other court rule. Admin. R. 9(G)(2)(b). Medical and
mental health records are confidential and protected from public disclosure. E.g., Ind. Code § 16-39-3-10(declaring that a patient’s mental health records and testimony related to a patient’s mental health offered in
a legal proceeding must be a confidential court record). A petitioner’s status as transgender will likely
implicate both her medical and mental health records.
Court of Appeals of Indiana | Opinion 19A-MI-118 | June 21, 2019 Page 6 of 11
transgender. Neither of these forms of evidence is required. Indeed, in A.L.,
the trial court, in denying one of the petitions before it, found as follows:
L.S. did not establish that he had been subject to specific threats
or violence; that publishing his petition would subject him to an
increased risk of violence or harassment that exceeds what he
already faces as a member of the transgender community; or that
the public filing of such court cases has resulted in targeted
violence against transgender individuals.
81 N.E.3d at 290. This Court explicitly disapproved of that reasoning, noting
the sobering statistics regarding the risk of harassment, violence, and homicide
to the transgender population, both nationwide and in Indiana. Id. We
likewise found that requiring a transgender person to publish his birth name and
new name “would enable members of the general public to seek him out,
placing him at a significant risk of harm. And in today’s day and age,
information that is published in a newspaper is likely to be published on the
Internet, where it will remain in perpetuity, leaving [the transgender person] at
risk for the rest of his life.” Id. at 290-91.
[11] In other words, the fact that M.B. did not provide evidence that she, herself, or
other citizens of Indiana4 have been a target of violence is of no moment. The
goal of Rule 9 is proactive; it seeks to prevent harm. To force petitioners to wait
4
Though in fact, M.B. did provide evidence of a specific act of violence to a transgender person in Indiana.
Appellant’s App. Vol. II p. 15. She also provided evidence of a specific act of discrimination that she has
faced as a result of her gender identity. Tr. Vol. II p. 9.
Court of Appeals of Indiana | Opinion 19A-MI-118 | June 21, 2019 Page 7 of 11
until they have already experienced that harm would vitiate the purpose of the
rule.
[12] Rather than focus on the evidence that M.B. did not provide, the trial court
should have focused on the evidence she did provide. With respect to the
general rates of discrimination, harassment, violence, and homicide
experienced by people who are transgender, M.B. provided the following
evidence:
8. Data shows that transgender individuals are
disproportionately impacted by violence and homicide.
Between 2013 and 2015, hate crimes against transgender
people increased 239 percent, with LGBT people more
likely than any other minority group to experience hate
crimes in the United States. Haeyoung Park and Iaryna
Mykhyalyshyn, L.G.B.T. People Are More Likely to Be Targets
of Hate Crimes Than Any Other Minority Group, N.Y. Times,
June 16, 2016.
9. The systemic violence transgender people experience
neither begins nor ends with hate crimes, physical assault
or homicide. Transgender people are more likely than the
general population to experience discrimination,
harassment, and violence in every facet of life, including
family relations, education, employment, housing, public
accommodations, obtaining accurate identification
documents, and accessing adequate and appropriate
medical treatment. See e.g. James et al., The Report of the
2015 U.S. Transgender Survey (2016), available at
http://www.ustranssurvey.org/reports/; National Coalition
of Anti-Violence Programs, A Report from the National Coalition
of Anti-Violence Programs: Lesbian, Gay, Bisexual, Transgender,
Queer, and HIV-Affected Hate Violence in 2013 (2014),
Court of Appeals of Indiana | Opinion 19A-MI-118 | June 21, 2019 Page 8 of 11
available at
http://www.avp.org/storage/documents/2013_ncavp_hv
report_final.pdf[5]; Jaime M. Grant et al., Injustice at Every
Turn: A Report of the National Transgender Discrimination
Survey 2 (2011), available at
http//www.thetaskforce.org/downloads/reports/reports/
ntds_full.pdf.
10. This is no less true in the state of Indiana. A survey of
transgender people in Indiana conducted in conjunction
with the National Transgender Discrimination Survey
found that 73% of respondents reported harassment in
their K-12 school; and 27% reported physical assault.
National Center for Transgender Equality and the
National Gay and Lesbian Task Force, Findings of the
National Transgender Discrimination Survey: Indiana Results
(2015), available at
http://www.transequality.org/sites/default/files/docs/us
ts/USTSINStateReport%281017%29.pdf. In another
study of Transgender Hoosiers, 74% of respondents
reported experiencing harassment or mistreatment on the
job. Christy Mallory and Brad Sears, Employment
Discrimination Based On Sexual Orientation and Gender
Identity in Indiana, August 2017, available at
https://williamsinstitute.law.ucla.
edu/research/in_discrimination_ aug_2017/[6].
11. Often, this violence is fatal. In 2016, an Indiana
transgender woman was shot in the face while her attacker
yelled anti-transgender sentiments. Alleged Hate Group
5
We found a better citation for this resource to be as follows: http://avp.org/wp-
content/uploads/2017/04/2013_ncavp_hvreport_final.pdf.
6
We found a better citation for this resource to be as follows: https://williamsinstitute.law.ucla.edu/wp-
content/uploads/IN_discrimination_Aug_2017.pdf.
Court of Appeals of Indiana | Opinion 19A-MI-118 | June 21, 2019 Page 9 of 11
Member Charged in Shooting of Trans Woman in Indiana, The
Advocate (July 17, 2016), available at
http://www.advocate.com/transgender/2016/7/17/alleg
ed-hate-group-member-charged-shooting-trans-woman-
indiana. Across the nation, violence against transgender
individuals is on the rise. Maggie Astor, Violence Against
Transgender People Is on the Rise, Advocates Say, N.Y. Times,
Nov. 9, 2017.
Appellant’s App. Vol. II p. 14-16. And M.B. also offered evidence of two
specific instances causing her to believe she is at great risk of public harm:
• “I have [personally faced discrimination based on gender identity] when
picking up my prescriptions at the Paoli Walmart pharmacy one of the
ladies that works there didn’t want to serve me and I had to get someone
else to help me.” Tr. Vol. II p. 9.
• “. . . I’m on Facebook quite a bit and there’s someone who lives in Paoli,
they have a red truck and they said if they knew someone was
transgender and they saw them they would shoot them.” Id.
We find that this evidence readily supports M.B.’s argument that, if she had to
publish notice of her name change petition and maintain a publicly open case
file, she would be at significant risk of substantial harm. The trial court erred in
ruling otherwise.
[13] Second, we are compelled to address the trial court’s conclusion that M.B.
could not be “outed” because of the way she presents in person. This subjective
assessment is not an element of an Administrative Rule 9 petition, nor should it
be. Appearance is in the eye of the beholder, and regardless of the trial court’s
own opinions about how men and women “should” look, M.B. has the right to
Court of Appeals of Indiana | Opinion 19A-MI-118 | June 21, 2019 Page 10 of 11
appear as she desires while maintaining public confidentiality about her gender
identity. This was a wholly improper reason to deny M.B.’s petition.
[14] The trial court should have granted M.B.’s Administrative Rule 9 petition to
waive publication of notice of her name change and to seal her case record.
[15] The judgment of the trial court is reversed and remanded with instructions that
this case shall remain sealed and for further proceedings.
Najam, J., and Robb, J., concur.
Court of Appeals of Indiana | Opinion 19A-MI-118 | June 21, 2019 Page 11 of 11