Appeals court: Judge ‘abused discretion’ by denying trans teen’s name change

By Samuel Smith, Deputy Managing Editor Friday, March 08, 2019

An appeals court in Ohio has overturned a judge’s decision to deny a trans-identified teenager preparing to go through hormone therapy a legal name change until the age of 18.

Judge Joseph Kirby had denied a trans-identified teenage boy named Elliott Whitaker (a biological female born with the name Heidi) the ability to legally change names. The Ohio Court of Appeals in the state’s twelfth appellate district overturned that decision.

“[W]e find that the probate court abused its discretion by failing to consider appropriate best interest factors before it denied the name change application,” the appellate court’s opinion reads.

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A change-name application was filed in April 2018 in Warren County Court. Whitaker’s mother, Stephanie, requested the name change because "the child picked a name to suit gender identity." The application for a name change was submitted with consent from both the mother and father.

A hearing for the name change was held in probate court on June 18, 2018, during which the parents and child testified. The child expressed the "feeling of distress … from as far back as I can remember."

The family explained that the child had seen a therapist many times and that people in the school were referring to the child by preferred pronouns and name.

On June 22, 2018, Kirby ruled that a name change was not “reasonable and proper and in the child's best interest." He reasoned that a name change request by the child could have been motivated by “short-term desires or beliefs that may change over the passage of time as the child matures.”

Kirby added that the child should be given time to “age,” “develop” and “mature” and that the child could reapply for a name change as an adult. His ruling came as health experts, studies and critics have warned over the years that gender dysphoria often does not persist into adulthood for many children.

Stephanie Whitaker appealed the decision, arguing that the judge “abused” his discretion by denying the name change. She argued that the denial was “arbitrary, unreasonable and based solely upon the transgender status” of her child.

The appellate court agreed.

“[T]he probate court failed to recognize that it was H.C.W.'s mother, and not H.C.W., who sought the name change,” the twelfth district's opinion reads. “In doing so, the probate court neglected to consider the preferences of H.C.W.'s parents and their assessment of H.C.W.'s best interest.”

The opinion cites the 2000 U.S. Supreme Court case Troxel v. Granville, in which the plurality ruled that “so long as a parent adequately cares for his or her children … there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children."

The Supreme Court further added, "if a fit parent's decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination."

“Instead of giving ‘some special weight’ to H.C.W.'s parents' preferences regarding the name change, the probate court summarily dismissed them,” the decision reads.

“In its sole reference to the parents' preferences, the probate court discounted them as simply a ‘desire to assuage their child.’ However, in contrast to ‘assuaging’ H.C.W.'s preference to change his name, the record plainly shows that the parents engaged a therapist specializing in transgender issues, kept H.C.W. in therapy for a year, consulted with the therapist, consulted with Dr. Conard of Children's Hospital concerning testosterone therapy, associated with a support group, and had extensive discussions among themselves before seeking the name change.”

The appellate court also accused the judge of not considering Whitaker’s mental health counseling and upcoming testosterone therapy.

In addition to appealing the case, the Whitakers and other families sued Judge Kirby in his personal capacity for what they say was a "pattern and practice" of denying transgender name changes. Kirby was accused of discriminating against transgender individuals.

Last October, U.S. District Judge William O. Bertelsman tossed out the lawsuit against Kirby on grounds that "the proper way to challenge an adverse judgment is to appeal, not to sue the judge.”

Bertelsmann ruled that appellate courts have the ability to overturn Kirby's decision and rule if he has "abused his discretion.”

Although the Ohio appellate court suggested the state has no business in injecting itself to question the ability of the parent to make “the best decisions concerning the rearing of that parent's children,” other courts have done just that.

Last year, another Ohio judge’s ruling allowed a transgender teen to continue hormone therapy against his parent's wishes. The parents wanted a “Christian” therapy for their son.

The parents were also stripped of legal custody, which was awarded to the child’s grandparents who are more affirming of the child’s gender identity.