Warren County transgender name change dispute back in state court

A Warren County family’s legal battle to get their transgender child’s name changed —with help from a national law firm advocating for lesbian, gay, bisexual and transgender (LGBT) rights — has moved to the 12th Ohio District Court of Appeals in Middletown.

Asaf Orr, Transgender Youth Projects staff attorney for the National Center for Lesbian Rights, said his organization was backing Cincinnati lawyer Josh Langdon in the state appeal, much as it did in the federal lawsuit against Warren County Juvenile Judge Joe Kirby dismissed last week.

Orr said his San Francisco-based advocacy group was interested in more than winning the right for Stephanie and Kylen Whitaker’s child to change his name from Heidi to Elliott.

RELATED: Transgender teen killed on I-71 left suicide note

Since 1977, the public interest law firm has been advocating for LGBT rights.

Orr said the case was the only one he had been able to find in which the child’s parents agreed, but the name change was rejected by judge.

“Anecdotally, we have heard across the country there are judges that are denying name changes for transgender young people,” Orr said in a phone interview.

“They are treating transgender young people differently. That violates the constitution,” said Orr.

RELATED: Investigation suggests transgender teen could have been running away when killed

Unlike in the federal case, Orr said he and his group’s staffers were not among the lawyers listed as representing the Whitakers.

The Whitaker case also enabled the group and other LGBT advocates to educate the public and Ohio judges on the issue, Orr added.

“By doing it, they are making it better for transgender kids in Ohio,” Orr added.

On Nov. 21, three judges from the 12th District are to begin deliberations on the state-court appeal.

The Whitakers filed for the name change on April 24.

Kirby ruled on June 22 the change was not “reasonable and proper and in the child’s best interest at this time,” prompting the appeal filed on July 9.

RELATED: Federal judge throws out transgender name change lawsuit

Langdon filed the appeal on behalf of Stephanie Whitaker and her 15-year-old, after Kirby - also the juvenile court judge in Warren County - rejected the name change in the county's probate court.

Kirby was represented by lawyers hired by Warren County in the federal lawsuit.

In the 12th District case, the judges will weigh Langdon’s brief against Kirby’s ruling. The judge makes no additional arguments.

The appeal claims the child needs the name change to aid him in the “social transition” accompanying the gender identity change.

“Elliott is diagnosed with and being treated for gender dysphoria,” Langdon said in his Aug. 23 brief. “The parents partly based their decision to legally change Elliott’s name upon the advice of medical professionals.”

MORE: Transgender advocates cheer Pentagon decision

Langdon accused Kirby of abusing his discretion by ruling “solely upon” the child’s transgender status and of violating the parents’ “constitutional right to raise their child.”

He also said the judge violated the First Amendment’s free speech clause by denying the name change.

The appeal also notes Kirby’s “personal and irrelevant questions” during a hearing, including which bathroom Elliott used.

“The trial court also suggested that Elliott’s expression of his gender identity was not sincere but, instead was the result of exposure to media coverage of the transition of Caitlyn Jenner,” Langdon said in his brief.

Jenner, formerly Olympic champion Bruce Jenner, responded to Elliott’s case in a video.

“Your identity is real. We are behind you 100 percent,” Jenner said.

MORE: Warren County challenges transgender protections in Obamacare

While the appeal was pending, the Whitakers filed the federal lawsuit claiming Kirby was discriminating against the Whitakers and two other families by refusing their transgender name change requests.

On Tuesday, Judge William Bertelsman threw out the case.

“The proper way to challenge an adverse judgment is to appeal, not to sue the judge. Plaintiffs here have appealed Judge Kirby’s decision not to grant their child’s name change to the Ohio Court of Appeals. This is the appropriate way to proceed,” Bertelsman said in his opinion and order.

Orr said Langdon and his group were plotting their next move. He rejected the idea that the ruling was a step back for LGBT rights.

“We’ve been moving forward for decades. I think it’s going to continue moving in that direction,” Orr said.

Judges Robert Ringland, Robin Piper and Michael Powell are to sit on the panel deciding the state appeals case. Decisions typically are announced within 60 days.

About the Author