About 30 seconds into attorney Chad Eggspuehler’s presentation about why Clark County Probate Judge Richard Carey should be compelled to change the birth certificate, Justice Pat DeWine interrupted and referred to a ruling from Utah.
Utah Supreme Court Justice Thomas Lee, in a similar case there, “made a pretty strong argument that the court lacked jurisdiction,” DeWine said.
The Utah court ruled 4-1 in favor of transgender residents changing their birth certificate gender marker.
Eggspuehler responded to DeWine’s jurisdiction argument by saying: “If that is the case, that poses a real structural problem for this court in which a probate court can opt out of following this court’s administrative guidance on standard probate forms. If that’s the case, then there’s no judicial review of an error of law in that process.”
In the Clark County case, Carey on Nov. 12, 2021 ruled he had no evidence that listing the birth certificate as male rather than female was in error and said he lacked authority unless it originally was made in error. The applicant was born in Clark County.
“The court recognizes that the petitioner believes that there was an error in the assignment of her sex marker on her birth record. Unfortunately, and by her own admission, her anatomy contradicts this posture,” Carey wrote in his ruling.
Carey’s ruling was upheld by the state’s 2nd District Court of Appeals.
The woman’s complaint argues the rulings run counter to a federal court decision in 2020, an Ohio Department of Health certificate change process, a Supreme Court probate form allowing for gender corrections, and procedures in more than a dozen other Ohio probate courts.
In the oral arguments Tuesday, Justice Patrick Fischer asked Eggspuehler: “Is there really a controversy, a case?”
Fischer raised issues about jurisdiction, the lack of an adversary in the case and if the matter were better suited for the legislative or executive branches of government.
Counties that follow the Ohio Department of Health’s guidance and the high court’s own form issued in 2021, Eggspuehler argued, have granted the birth certificate changes for roughly two years.
“Here, we have a handful of probate courts that are not following this court’s guidance,” saying they lack the power, he said. “That presents a core legal issue that is ripe for this court’s determination.”
DeWine asked if someone should be appointed to represent the other side of the issue and re-argue the case. Eggspuehler said he would not object to an appropriate party.
Briefs filed in support of the request said probate courts in 11 counties are holding decisions on birth certificate corrections until the Ohio Supreme Court rules in the case.
Eggspuehler and co-counsel Maya Simek issued a joint statement in response to questions from this newspaper.
It called birth certificates essential government-issued identification documents used for educational opportunities, employment, housing, government benefits or documents like passports and driver’s licenses.
“For transgender individuals, having inaccurate sex markers on their birth certificates threatens to ‘out’ them whenever they must submit a birth certificate, imperiling a constitutionally protected privacy interest,” the statement said.
“This case is about how Ohio’s transgender citizens can change the sex marker listed on their birth certificates — not ‘if,’” it said, outlining the processes set out by the Ohio Department of Health and a form from the Ohio Supreme Court.
“Our client ... followed this guidance, but the probate court in her home county refused to process her correction,” the statement said.
Eggspuehler called it the “luck of the draw” for Ohioans seeking a change to their birth certificates.
“If you are born in one county, your birth certificate correction, should you apply for one, is processed,” he told justices. “If you are born in a different one, it will not be.”
Justices said they would take the issue under advisement and issue a ruling.