In re B.C.A.

223 N.E.3d 820

2023-Ohio-2931

In the MATTER OF: B.C.A.

CASE NO. 2022-L-101

Court of Appeals of Ohio, Eleventh District, Lake County.

Decided: August 21, 2023

Civil Appeal from the Court of Common Pleas, Probate Division, Trial Court No. 2022 CB 1116.

Monica R. Zibbel and Glenn E. Forbes, Forbes Law LLC, 166 Main Street, Painesville, OH 44077 (For Appellants, A.A. and A.A.).

OPINION

EUGENE A. LUCCI, J.

{¶1} Appellants, Mr. and Mrs. A. (respectively, "Father" and "Mother", and collectively, "the parents"), appeal the judgment of the Lake County Common Pleas Court, Probate Division, denying their application to change the sex marker on the birth record of their child B.C.A.. ("the minor") from "male" to "female." We affirm.

{¶2} The minor was born in 2009 in Lake County, Ohio. In June 2022, the parents filed the present application in the probate court pursuant to R.C. 3705.15 to correct the sex marker on the minor’s birth record from "male" to "female."

{¶3} Thereafter, the probate court held a hearing on the application, after which it found the following facts, which are not in dispute:

The minor was born as a twin on July 9, 2009, in Lake County, Ohio. Mother resided in Lake County at the time of birth, and the minor and the minor’s family continue to reside in Lake County.

The minor’s birth record was filed on August 8, 2009, and reflects the minor’s sex as male.

Mother testified that all of the information contained on the minor’s birth certificate is correct except the sex marker as male. Mother testified that at the time of birth Mother thought the record was accurate, but the minor is now a transgender female.

The minor was born with male anatomy, but at two-years-old the minor verbalized that the minor was a girl. The parents consulted with medical professionals to gain a better understanding. At five-years-old, the minor began a social transition to female, i.e. the minor began to present as a girl and use she/her pronouns'.

The minor was diagnosed with "gender dysphoria" at five-years-old. The minor maintains mental health treatment with professionals as well as appointments with physicians regarding hormone levels.

Plaintiffs Exhibit 2 was completed by Dr. Ajuah Davis, the minor’s prior endocrinologist, who opined that the minor’s gender identity is female. The minor presently sees another physician due to scheduling issues with Dr. Davis.

Mother testified that the minor’s birth record identifying the minor’s sex as male "outs" the minor to those unaware at school that the minor is transgender, and places the minor’s safety and mental health at risk based on threats that the minor has received.

Mother testified that the minor would benefit from having the birth record corrected to reflect how the minor currently presents.

Father affirmed much of Mother’s testimony. Father testified that the sex marker as male is not properly and accurately recorded because it "does not match my daughter." Father testified that because the birth record does not match his child, it raises confusion and could be potentially dangerous for his child.

The minor testified that the sex marker as male is not properly and accurately recorded. The minor stated that the minor has always been a girl regardless of the minor’s genitalia.

The minor testified that the correction of birth record will allow the minor’s forms to match who the minor is now, not who the minor was at birth.

The minor described incidents at school where the minor feels awkward because the minor has to explain why the minor’s birth record reflects the minor’s sex as male but the minor presents as female. The minor has experienced threats of violence when other students have learned that the minor is transgender. The minor wants the sex marker corrected so the minor can feel more comfortable going forward in life.

In 2021, a name change was granted by this Court and the minor’s birth certificate was changed to reflect the name change from a traditionally male name to the current name pursuant to R.C. 2717.09, R.C. 2717.13, and R.C. 3705.13.

{¶4} Based on these facts, the probate court concluded that it lacked statutory authority under R.C. 3705.15 to order the requested change to the sex marker on the birth certificate.

{¶5} The parents assign the following two errors:

[1.] The Probate Court erred by finding it lacked authority under R.C. 3705.15 to order the correction of the sex marker on a birth certificate.

[2.] The Probate Court erred and abused its discretion when it denied the application to correct the birth record of B.C.A.

[1–4] {¶6} In their first assigned error, the parents challenge the trial court’s construction of R.C. 3705.15. "The meaning of statutory language is a question of law, which we review de novo." State v. Jeffries, 160 Ohio St.3d 300, 2020-Ohio-1539, 156 N.E.3d 859, ¶ 15, citing State v. Vanzandt, 142 Ohio St.3d 223, 2015-Ohio-236, 28 N.E.3d 1267, ¶ 6. "Our paramount concern in examining a statute is the legislature’s intent in enacting the statute." Gabbard v. Madison Local School Dist. Bd. of Education, 165 Ohio St.3d 390, 2021-Ohio-2067, 179 N.E.3d 1169, ¶ 13, citing State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d 1107, ¶ 21. "To discern that intent, we first consider the statutory language, reading all words and phrases in context and in accordance with the rules of grammar and common usage." Gabbard at ¶ 13, citing Morrissey at ¶ 21; see R.C. 1.42. See also Jeffries at ¶ 15, citing Vanzandt at ¶ 7 ("A fundamental preliminary step in our analysis of any legislation is to review the plain language of the statute."). "We give effect to the words the General Assembly has chosen, and we may neither add to nor delete from the statutory language." Gabbard at ¶ 13, citing Columbia Gas Transm. Corp. v. Levin, 117 Ohio St.3d 122, 2008-Ohio-511, 882 N.E.2d 400, ¶ 19.

[5] {¶7} Accordingly, "[w]hen the statutory language is unambiguous, we apply it as written without resorting to rules of statutory interpretation or considerations of public policy." Gabbard at ¶ 13, citing Zumwalde v. Madeira & Indian Hill Joint Fire Dist., 128 Ohio St.3d 492, 2011-Ohio-1603, 946 N.E.2d 748, ¶ 23-24, 26. "In other words, our review ‘starts and stops’ with the unambiguous statutory language." Gabbard at ¶ 13, quoting Johnson v. Montgomery, 151 Ohio St.3d 75, 2017-Ohio-7445, 86 N.E.3d 279, ¶ 15.

{¶8} Mindful of these principles, we turn to the statutory provisions regarding birth certificates. "A birth certificate for each live birth in [Ohio] shall be filed in the registration district in which it occurs within ten calendar days after such birth and shall be registered if it has been completed and filed in accordance with [R.C. 3705.09]." R.C. 3705.09(A). R.C. 3705.09 does not specify the information that must be recorded on a birth certificate. Instead, R.C. 3705.08 provides:

(A) The director of health, by rale, shall prescribe the form of records and certificates required by this chapter. Records and certificates shall include the items and information prescribed by the director, including the items recommended by the national center for health statistics of the United States department of health and human services, subject to approval of and modification by the director.

(B) All birth certificates shall include a statement setting forth the names of the child’s parents.

{¶9} Pursuant to R.C. 3705.08(A), the director of the Ohio department of health ("ODH") has issued an administrative rule prescribing a standard form for a "certificate of live birth." See Ohio Adm.Code 3701-5-02(A)(1). The information to be recorded for a child consists of the "child’s name," "time of birth," "sex," "date of birth," "facility name," "city, town or location of birth," and "county of birth." Appendix A to Ohio Adm.Code 3701-5-02.

{¶10} Corrections to the birth record may be made in accordance with R.C. 3705.15(A), which provides, in relevant part:

Whoever claims to have been born in this state, and whose registration of birth * * * has not been properly and accurately recorded, may file an application for * * * correction of the birth record in the probate court of the county of the person’s birth or residence or the county in which the person’s mother resided at the time of the person’s birth. If the person is a minor the application shall be signed by either parent or the person’s guardian.

(A) An application to correct a birth record shall set forth all of the available facts required on a birth record and the reasons for making the application, and shall be verified by the applicant. Upon the filing of the application the court may fix a date for a hearing, which shall not be less than seven days after the filing date. * * * The application shallbe supported by the affidavit of the physician or certified nurse-midwife in attendance. If an affidavit is not available, the application shall be supported by the affidavits of at least two persons having knowledge of the facts stated in the application, by documentary evidence, or by other evidence the court deems sufficient.

The probate judge, if satisfied that the facts are as stated, shall make an order correcting the birth record, except that in the case of an application to correct the date of birth, the judge shall make the order only if any date shown as the date the attending physician or certified nurse-midwife signed the birth record or the date the local registrar filed the record is consistent with the corrected date of birth. If supported by sufficient evidence, the judge may include in an order correcting the date of birth an order correcting the date the attending physician or certified nurse-midwife signed the birth record or the date the local registrar filed the record.

(Emphasis added.)

[6] {¶11} The question before this court is whether R.C. 3705.15 authorized the probate court to order the ODH to change the sex marker on the minor’s birth record from "male" to "female."...