Ohio Transgender Birth Certificate Suit Hinges on Jurisdiction

A pair of conservative Ohio Supreme Court justices, in hearing a case involving a transgender woman’s request to change the sex marker on her birth certificate, wondered Tuesday whether the state’s highest court had the ability to hear the case at all.

Justices R. Patrick DeWine and Patrick F. Fischer, during oral arguments, repeatedly asked attorney Chad M. Eggspuehler of Tucker Ellis LLP whether his client Hailey Adelaide’s case presented a controversy on which it could rule. For one, Eggspuehler was the only attorney present during oral arguments, DeWine noted.

“Do we have an adversity problem here?” the justice asked.

Fischer also wondered if the problem in front of the court should be addressed by an agency or the legislature.

Adelaide’s case centers on a state law that says those who want to correct their birth certificate must apply with the probate court in the county where they are born. She was assigned the male gender at birth, which was noted on her birth certificate. But she has identified as a female since she was four years old, according to court records.

She filed an application in 2021 with the probate court in Clark County, near Dayton, to change the sex marker designation to female on her birth certificate. The probate judge, however, denied her request, ruling that state law doesn’t allow a court to make such a change unless it was originally an error.

That put the Clark County probate court at odds with other Ohio counties that have allowed transgender people to modify their birth certificates.

“If this lower court decision is not corrected, then other courts around the state are going to look at that to say ‘We don’t have jurisdiction to process these corrections,’” Eggspuehler said.

But jurisdictional questions were clearly in the front of DeWine and Fischer’s minds.

DeWine pointed to a dissent then-Utah Supreme Court Justice Thomas Lee wrote in a similar case in his state in 2021 that made “a pretty strong argument” for the same point.

Democratic Justice Jennifer Brunner questioned whether a provision in the Ohio Constitution that says courts of appeals have jurisdiction “in any cause on review as may be necessary to its complete determination” was sufficient for Adelaide’s case.

Eggspuehler was steadfast in saying the justices should address the case now.

“Although there have been a number of significant developments involving LGBT rights in recent years, this unopposed case is not one of them,” he said.

The case is In Re: Application for Correction of Birth Record of Hailey Emmeline Adelaide, Ohio, No. 2022-0934, argument 4/4/23.