The Supreme Court ruled 4-3 Tuesday to accept the Clark County case.
The Clark County judge improperly ruled that nothing in state law gives probate judges authority to correct gender on a birth certificate unless it was originally made in error, according to an Aug. 1 court filing by the woman's attorneys asking the high court to hear the case.
Clark County Probate Judge Richard Carey’s Nov. 12, 2021, decision said he had no evidence that listing the birth certificate as male rather than female was in error.
“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.
The transgender woman, with the help of the Equality Ohio Legal Clinic, in October 2021 sought to correct the sex marker on her birth certificate in Clark County, where she was born, according to her appeal filed on Aug. 1 with the Ohio Supreme Court.
The woman submitted an application for correction to her birth records, a process that included submitting affidavits from herself, her therapist and a clinical psychologist, with the Clark County Probate Court, which had previously authorized the change of her legal name. The probate court ultimately denied the woman’s application for the birth record correction.
The probate court did not deny the documents and testimonial evidence submitted by the woman; rather, it ruled it lacked the authority to issue a sex marker correction, according to Carey’s decision.
The woman’s attorneys argued that the state health department updated its process to allow for birth certificate corrections after Ray v. McCloud, a federal court in 2020, found unconstitutional Ohio’s rule prohibiting changes to gender on birth certificates.
Carey’s ruling said the statue allows courts to act when a birth certificate “has not been properly and accurately recorded,” but Carey said he had no evidence of an error.
“The court has before it no other evidence that the indication of ‘male’ versus ‘female’ on the birth certificate in question was erroneous. To that end, this court must find that the birth certificate at bar was ‘properly and accurately’ recorded. Accordingly, it cannot be ‘corrected.’”
Carey wrote in his ruling that the court took “no satisfaction in frustrating the genuine desire” of the woman to “change her birth record.”
“This court, however, is bound to apply the law of the State of Ohio as it currently is written,” he wrote.
The state Supreme Court issued a form in August 2021 allowing probate courts to correct gender under state law, her attorneys said.