Change name on birth certificate

No controversy, no change to transsexual's birth certificate

Pre-operative transsexuals are stuck with the gender they were born with -- at least on their birth certificates, the Court of Special Appeals held yesterday. The appeals court said Robert Wright Heilig's petition for a change of gender identity was properly denied because the appellant had not shown "that an actual case or controversy exists." Attorney Alyson D. Meiselman contested that reasoning yesterday. "Where's the case or controversy in a petition for a name change?" Meiselman asked. Heilig's petition for a name change, to Janet Wright, was filed with the gender-change petition and was granted, Meiselman noted. The case-or- controversy issue occupied most of her time at oral arguments on appeal, Meiselman said. She argued that the determination of legal sexual identity affects numerous rights, including the ability to marry and, in the event of a criminal conviction, the place where a prison term would be served. "We note that these are future events that we will not rule upon," Judge Clayton Greene Jr. wrote for the appeals court. "If appellant is incarcerated or applies for a marriage certificate, the case will ripen. Until such a time, we will not speculate as to appellant's rights." Since 1982 a Maryland law has allowed post-operative transsexuals "born in this State" to obtain a court order instructing the Secretary of State to amend their birth certificates. Wright, who was born Robert Wright Heilig in Pennsylvania in 1948, cited the statute as evidence that the court had equitable power to order such an amendment. "[R]eliance on the maxim, 'equity will not suffer a wrong to be without a remedy,' fails because appellant has not presented a justiciable claim...," Greene wrote. "In other words, in order for any remedy to become appropriate, there first needs to be a wrong." The opinion also notes that Wright had not obtained gender reassignment surgery as of last October, when briefs were due. However, Meiselman said the question never came up below or on appeal. "No one ever asked as to whether my client had had surgery or not," she said, adding that any determination was based on a "supposition" by the circuit judge. "If the [appellate] court wanted to know the answer to that question, it should have reversed and remanded to trial court," Meiselman said. She declined to say whether the surgery has, in fact, been performed. "It's not part of the record," she said. While she was unable to contact Wright yesterday, Meiselman said she "absolutely" will consider filing a certiorari petition with the Court of Appeals. Mark Scurti, who chairs the Maryland Lesbian and Gay Law Association, cautioned against reading the case too broadly, given that Wright's birth certificate was issued by Pennsylvania. "The question was whether Maryland had authority to order another state to change their records," he said. "I'm not surprised the court would decline to find equitable power to do that." Scurti noted that the court declined to address broader questions raised on appeal, including whether sex is an "immutable characteristic." "This has been hotly debated around the country with horrible decisions, such as the ones in Kansas and Texas," he said. The Kansas Supreme Court found this year that a post-operative transsexual remained a male and therefore could not legally marry another male in that state. In 1999, a Texas appeals court found that Christine Littleton could not sue for the wrongful death of her husband because she was a post-operative transsexual. Meiselman, in fact, took the Littleton case to the U.S. Supreme Court but was denied certiorari. Scurti, who helped convince Maryland's Motor Vehicle Administration to allow pre- operative transsexuals change their gender designation on their driver's licenses in 1999, said yesterday's decision should not affect that executive branch policy at all. Yesterday's opinion is available as RecordFax #2-0410-09 (16 pages).