Local court order, governor's order on gender put Monroe County board of health 'between a rock and a hard place'
Until an executive order was issued by new Indiana governor Mike Braun on March 4, a change of name and gender on a birth certificate in Indiana followed a standard procedure at the local level.
But the governor's order, coupled with guidance from the State Registrar and Division Director in the Indiana Department of Health, has put Monroe County's board of health in an apparent tough spot: How can it comply with a local court order obtained by a petitioner to change their gender on their birth certificate, and at the same time comply with the guidance from the state?
Braun's order reads in part: "Indiana's Executive Branch will respect and enforce the biological binary of man and woman as a fundamental and deeply rooted principle of American legal history and tradition that is embedded in Indiana's statutes and Constitution." The order is similar in content to a Jan. 20, 2025 executive order issued by U.S. President Donald Trump.
The email from the the Indiana State Registrar giving guidance on the topic says that "As of March 4, 2025, per Executive Order 25-36 issued by Indiana Governor Mike Braun, the Indiana Department of Health Division Vital Records will not process gender change requests for Indiana birth records."
But the email message continues, "If a consumer has submitted a gender change request to your office, please follow the standard process and send IDOH Vital Records Amendments and Correction team the court order and documents."
On Thursday, board of health chair Dawne (Aurora) DiOrio described the board's position as being "between a rock and a hard place."
At its meeting on Thursday, the board voted to approve a report to the Monroe County circuit court describing exactly what it is doing about one specific court order and why.
As Monroe County attorney David Schilling described it to board members on Thursday, the report lets the circuit court know that the health department has received its order, and acknowledges it. As Schilling put it, the board's report tells the court: "We're doing the best we can to comply with it, so that we're not held in contempt of court." In addition to the court, the petitioner would receive a copy of the report, Schilling said.
Schilling had earlier described any potential legal disagreement as a private dispute between the governor, and the person who wants their birth certificate to reflect a changed gender. Part of the hoped-for effect of the report, which the board approved on Thursday, is to remove county government as the potential target of a lawsuit. Schilling put it like this: "So if they decide to initiate some kind of legal action, they would hopefully leave the county out of it."
Up to now, the standard procedure for changing someone's gender on their birth certificate involved a petitioner, the person requesting the change, obtaining a court order for the name and gender change. Circuit court judge Catherine Stafford, who is one of the Monroe County judges who considers petitions for changes in the gender marker, responded to an emailed B Square question by writing that she generally holds a short evidentiary hearing on such requests. Stafford indicated that right now she does not anticipate changes in the way she handles such cases.
Based on the report approved by the board of health on Thursday, a typical circuit court order would include direction from the court to "all agencies and institutions issuing the petitioner identity documents to amend such documents" in a way that is consistent with the court's order.
The county's effort to comply with the local court's order, as reflected in Thursday's approved report, includes changing the names and gender markers on the County Birth Record System, changing the names on the IBRS (Indiana Birth Registration System), and submitting a Vital Records Help Desk ticket requesting the Indiana Department of Health change the gender markers for the person.
The changes made to the County Birth Record System apply just to births recorded before and including 2006—that is, to people who are at least 18 years old. That's something that prompted county commissioner Jody Madeira, who was in attendance at Thursday's meeting, to ask: "What's a child? Is a child 21 and under? Is a child 18 and under?"
Madeira said it's important to reinforce the fact that for people who are adults, changes to the gender markers on birth certificates can still take place.
Also attending the board's Thursday meeting was county councilor David Henry, who got confirmation that people will not be turned away, and that the ticket will be created in the state's help desk ticketing system—it's just that the state is saying that the tickets won't be processed.
The specific event that prompted the board and the county legal department to review how it is going to handle such cases took place a week ago (Friday, March 14).
During public comment time, Melanie Davis reported that a coworker had gone to the Monroe County department to change her daughter's name and gender on her birth certificate, and that it was "denied." Her coworker is now trying to seek legal representation through the ACLU (American Civil Liberties Union), Davis said.
It could mean the kind of litigation that Schilling, the county attorney, is trying to keep Monroe County from facing.
Any litigation would likely include the impact of a U.S. Supreme Court decision [Bostock v. Clayton County, 590 U.S. 644 (2020)], where the country's highest court found that Title VII of the Civil Rights Act of 1964 protects employees against discrimination on the basis of sexual orientation or gender identity.
It's a ruling which application is disputed by U.S. President Donald Trump's executive order issued on Jan. 20, 2025.
Trump's order states that the way the Biden administration interpreted the Bostock ruling is "legally untenable and has harmed women." Trump's order also calls on the U.S. Attorney General to "immediately issue guidance to agencies to correct the misapplication of the Supreme Court's decision in Bostock v. Clayton County (2020) to sex-based distinctions in agency activities." Trump's order continues: "In addition, the Attorney General shall issue guidance and assist agencies in protecting sex-based distinctions, which are explicitly permitted under Constitutional and statutory precedent."
