A Texas appeals court, finding no specific state law or regulation authorizing the “gender designation change” requested by a transgender man, has upheld the trial judge’s original denial of his petition.
Justice Martha Hill Jamison’s August 2 opinion for a three-judge panel of the Texas 14th District Court of Appeals in Houston concerned a petition filed in January 2015 by Alex Winston Hunter to have his legal name changed from his birth name of Aidyn Rocher as well having his “sexual designation” changed from female to male. At a hearing to consider his petition, which was held prior to the Supreme Court’s marriage equality ruling last June, Hunter’s attorney pointed out that under the Texas Family Code “proof of an order relating to a sex change could be used to prove identity for purposes of an application for a marriage license.”
The trial judge granted Hunter’s name change request, but denied the request for a “change in gender designation,” finding the court had no specific authority under Texas law to do so.
Appeals panel finds petitioner, born out of state, has no recourse in local courts
Like most, but not all, states, Texas allows for changes in gender designations on birth certificates, but Hunter was born in Pennsylvania, and the Houston court had no authority to order that state to change the birth certificate. Nor can Texas issue a new birth certificate for someone born out of state. Hunter argued that trying to get a new birth certificate from Pennsylvania would be unduly burdensome, and that since Texas law recognizes the reality of gender transition in its policy for allowing such changes on birth certificates, the court should be able to issue the declaration he sought in the context of his name-change case.
Even though Hunter cited two past Texas court opinions that suggested recognition of sex designation changes, Justice Jamision’s opinion concluded that neither answered the question whether a Texas court has authority to do such a thing. The three-judge appellate panel was unwilling to take that step without some direct prior precedent or statutory authorization.
On appeal, Hunter had argued that the Supreme Court’s marriage equality ruling would support a claim that the liberty protected by the Due Process Clause of the 14th Amendment would include a right of self-determination in matters of gender identity, out of respect for individual dignity. However, since the trial court hearing took place before the high court’s decision, the appeals court refused to consider that argument in reviewing the trial court ruling. The timing here was unfortunate, particularly since Hunter might have been able to rely on earlier high court rulings — the 2013 Windsor decision that struck down the Defense of Marriage Act and the 2003 Lawrence ruling that found sodomy laws unconstitutional — to make the same argument.
The advent of marriage equality nationwide, of course, eliminates any problem Hunter might face in obtaining a marriage license, but gender designation remains a crucial issue, particularly for legal identification documents such as a driver’s license and a voter identification card for non-drivers. The unavailability of a mechanism in Texas for transgender residents born in other jurisdictions to obtain a gender change declaration from a state court, therefore, is another unnecessary stumbling block to getting on with one’s life.
In 2003, a more empathetic court, the Maryland Court of Appeals, ruled that a state trial court there could draw upon its general equitable powers to declare a change of sex designation for a transgender applicant who was born, coincidentally, in Pennsylvania. Interestingly, as of August 8 of this year, new regulations in Pennsylvania allow a transgender person born in that state to obtain a new birth certificate by providing certain documentation to the Health Department, including a declaration under oath by a doctor that the individual has received appropriate clinical treatment to be considered male or female, without any requirement to demonstrate surgical transition. Hunter can now download the necessary forms from several Pennsylvania state websites. Unfortunately, not every state is so accommodating, and some still refuse to issue new birth certificates for this purpose.