COLUMBUS, Ohio — The ability to change the gender marker on a birth certificate in Ohio depends on what county the resident lives in, allowing local judges to decide to approve or deny based on their reading of the law.
For Ohioans in cities like Cleveland and Columbus, changing their gender marker is a simple process. In more rural areas, like the outskirts of Youngstown, it isn't. Tara Wilson knows that from experience.
For the past five years, Wilson has been living as her authentic self.
"Overall, the transition is a rather good success story," she said.
She changed her name, and now her license and passport reflect who she is – a transgender woman. The only major document she hasn't been able to change to female is her birth certificate. She's been trying since 2021.
"It's a validation of who I am," she said. "It's protection, it's my identity, it's affirmation, it's everything."
Birth certificate changes are necessary for a multitude of reasons, she said. It would help in getting other identity documents, eligibility for benefits or employment, clearing a background check, getting housing or any other major legal process. One of the more important reasons, in all of these cases, being outed as trans could cause violence.
"Protection is the biggest reason why I want that document changed, because right now you can do a vital record search, you could search for me right now and pull my birth certificate," she said, talking about Ohio's open records law. "And you could use that against me."
Court documents show her judge at the Mahoning County Probate Court said he would not change the gender marker, “since the statute only allows courts to correct ‘incorrect’ entries.”
"Being told that directly was the single most humiliating thing I've ever, ever had to go through in my life," she said. "I was crying in the courtroom."
News 5 found that judges across the state are not following a uniform policy. Cuyahoga County Probate Judge Laura Gallagher is issuing these changes and said the decisions all hinge on how a judge sees one verb: correct.
Prior to 2016, the Ohio Department of Health allowed transgender individuals to amend their gender marking on birth certificates. ODH then reviewed its policy and decided to no longer allow the changes to the marker, with consultation with the Ohio Governor's office, according to the ACLU.
In 2020, the U.S. District Court for the Southern District of Ohio ruled in Ray v. McCloud that transgender people should be able to change the gender or “sex” marker on their birth certificates.
“All the Court [continuously found was] that a blanket prohibition against transgender people changing their sex maker is unconstitutional,” the presiding judge decided.
The arguments against allowing for the marker change had to do with preventing fraud and keeping more accurate records, according to court documents. The judge addressed these claims and said the "proffered justifications are nothing more than thinly veiled post-hoc rationales to deflect from the discriminatory impact of the Policy.”
Changing the gender marker is not a new concept. When the 2020 case was decided, Ohio was one of the last two states to not allow the updates.
Following this decision, ODH started allowing for the sex marker to be changed.
In 2021, the Clark County Probate Court denied issuing a correction to a transgender woman named Hailey Adelaide, saying it didn’t have the authority. That decision was then upheld by the Second District Court of Appeals.
"The clear language of the statute is what's being debated, whether changing a birth record to reflect what is true today, but not what was true on the day of birth — is that a correction or is that an amendment?" Gallagher said.
Now, singular judges are deciding whether transgender people can change their birth certificates.
"I just happen to live in the wrong place, just the wrong county," Wilson said.
This is a trivial way to deny people their freedom, she said, adding that she thinks this is purposeful.
"I live in a deep red county with red judges, I think they were pushing an agenda," she said.
When asking Gallagher if it was a coincidence that blue counties tend to be allowing the changes while red counties are not, she had this to say: "I haven’t looked at the map that way. Knowing my colleagues as well as I do, generally speaking, our politics don't come into our job, nor should it."
Adelaide's case now heads to the Ohio Supreme Court.
Jurisdiction
The supremacy clause establishes that the federal constitution overpowers the state constitution, thus a lower federal judge should have the final word over a lower state court,
"My take on it was this is a decision that directly affects what the Ohio Department of Health does," Gallagher said. "Therefore, it affects what I do because... the Department of Health needs an order from me to do something."
The judge has no doubt that her decision is the correct one to issue these changes, she added. Plus, the Ohio Supreme Court quickly made the form for gender mark changes available.
"It's unfortunate that there are people now caught in the crosshairs if they're in a jurisdiction where they can't get this done right now," the judge said.
Luckily for some trans Ohioans, if they were born in a county that allows for corrections, they can file in those probate courts. There are also some other ways around it, such as a potential route that would include where the mother lived at the time of birth, according to Gallagher.
Cuyahoga County has already had at least one person able to change their marker. News 5 spoke to this woman, but for safety reasons, she did not want to speak on the record. She did provide all relevant documentation.
Regardless of the Ohio Supreme Court ruling, once decided, ODH should be able to change the policies to allow for updating the marker.
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