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Arguments heard by Utah Supreme Court on denial of transgender marker changes

Two transgender Weber County residents went to the Utah Supreme Court after being denied gender marker changes on their birth certificates. Judges across the state routinely grant such changes, but Second District Judge Noel Hyde ruled in both cases that Utah law was not specific enough for him to rule in favor of the changes.

“Regardless of the sincerity or intensity of the desire of any individual to display any particular physical appearance, some biological facts are not subject to voluntary modification,” Hyde wrote while denying Sean Childers-Gray his gender marker change in December of 2016.

Salt Lake attorney Christopher Wharton went before the Utah Supreme Court to present arguments on behalf of Childers-Gray of Ogden and Angie Rice of Mountain Green.

Wharton had barely introduced himself before Judge Thomas R. Lee started barraging him with questions of jurisdiction, procedure, and questions of whether the Utah State Legislature should have placed the task of name and gender changes to an administrative office.

Wharton replied that nearly all states, including Utah, have people go through the court system for such decisions because only courts can look at common law and other cases to help make their determination. New York is an “outlier,” he said because they use the Office of Vital Records to make determinations of such changes.

Lee asked if Wharton thought it would be better if the state did have these decisions go through the department of health or office of vital records. Wharton replied that is not the current case in Utah, nor did he think it would be a better way of making these decisions.

Lee called this question “a brand new frontier” and wondered aloud why the state of Utah had declined to weigh in on the case. Courts, he said, generally resolved matters between two parties. With an empty table across from Wharton, Lee was “uncomfortable” in the court setting precedent in the matter.

The Utah Attorney General’s Office filed a brief last year saying the state would not care to be involved in the decision, saying the office could only address a hypothetical which could delay the proceedings.

Wharton pointed out that judges in courts around the state routinely rule in favor of birth certificate name and gender changes.

“I get there is a downside in not having an opposing position,” Wharton told the court, “but I think it’s noteworthy that the majority of these petitions have been unopposed because this is a policy that is working in Utah,” he said.

“In my experience since 2009, these matters were routinely approved,” Wharton testified.

Two judges, however, denied gender changes in the past year, including Hyde in Ogden and Judge Bruce C. Lubeck of the Third Judicial District Court in West Jordan.

Utah Code spells out the procedure of “Name or sex change — Registration of court order and amendment of birth certificate”:

“When a person born in this state has a name change or sex change approved by an order of a Utah district court or a court of competent jurisdiction of another state or a province of Canada, a certified copy of the order may be filed with the state registrar with an application form provided by the registrar,” Utah Code Section 26-2-11 states.

Other than Lee, other justices seemed to lean toward at least the understanding that the court had jurisdiction and that the legislature had explicitly determined the Judicial System be the arbiter of name and gender changes.

Justice Paige Petersen was making her first appearance behind the bench and sat silently through most of the testimony until the end, where she asked whether “The petitioner has to show the requested change actually reflects their gender identity.”

Yes, said Wharton, who had earlier explained that common law weighs doctor testimony and how the petitioner presents themselves publicly to make determinations.

In summary, Wharton testified, “I would ask that this court recognize the legislature’s intent in the statutes and dignify the need for congruity between vital records and a person’s actual reality.”

As the testimony, initially scheduled for 20 minutes but went on for just under two hours, wound down, Chief Justice Matthew B. Durrant specifically mentioned that Wharton had made thorough and compelling arguments in both his brief and in testimony.

Childers-Gray and Rice met with reporters outside the chambers.

Asked how she thought the testimony went, Rice said, “In my heart, I think the only thing I can think to say is that I hope God and the law guide their judgment.”

She said that it is important that all people going through the process be treated fairly, “no matter what city or town they live in.”

“I think it will be a close vote,” she said. “I think it brings to light that the standard ought not to be political or theological; it’s a life issue, and a civil issue to us, and that standard should not be different based on where you live or what judge you get to see.”

Childers-Gray said he believes he and Rice were “chosen” for this fight since they have the strength to stand up to it.

“We won’t stop fighting,” he said. “We go until we can’t go anymore.”

Childers-Gray is a graphic designer who has been involved in the Royal Court of the Golden Spike Empire, the Salt City Kings, and the Imperial Rainbow Court of Northern Utah.

Rice is a veteran who has been recognized as the first openly transgender public education teacher in Utah, attracting national media attention from The Wall Street Journal, the Associated Press, and People magazine.

She said that she had had issues at the airport while traveling under identification which properly designates her name, but misgenders her.

The court has not set a date for a decision.

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