127 N.E.3d 257
Ind. Ct. App.2019Background
- K.H., a transgender woman, petitioned to change her name and gender marker and requested waiver of publication and sealing of the record under Indiana Admin. R. 9.
- The trial court temporarily sealed the case but ordered K.H. to publish notice in a newspaper (without naming her) stating she sought to change a "male" name to a "female" name, and to notify the Indiana Attorney General.
- K.H. filed affidavits and a supplemental affidavit asserting that publication and notifying the Attorney General would out her as transgender and expose her and her family to immediate, irreparable risk of violence, discrimination, and harassment.
- The trial court denied her motions for reconsideration and to waive publication/seal the record because she had not complied with the publication and AG-notice directives, and certified the order for interlocutory appeal.
- The Court of Appeals reviewed de novo the legal questions and applied clearly erroneous review to factual findings where required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court could require notice to the general public by publication under Admin. R. 9 | Publication would out K.H., causing immediate and irreparable harm; Rule 9 does not require publication to the public here | Court ordered publication so the public could know the hearing and potentially object | Trial court erred; Rule 9 does not authorize compelled publication to the general public and the court exceeded its authority |
| Whether the trial court could require K.H. to notify the Indiana Attorney General | Notifying AG would likewise out her and serve no legitimate purpose; creates risk of harm | Court said AG should be able to determine whether to intervene | Trial court overstepped; AG is not a statutorily recognized interested party in name-change/Rule 9 matters and cannot be compelled notice here |
| Whether K.H. could avoid notice by demonstrating immediate and irreparable harm consistent with Trial Rule 65(B) and Admin. R. 9(G)(4)(b)(ii) | Affidavits established specific facts showing immediate irreparable injury if notice required; counsel certified efforts/reasons why notice should not be given | Court relied on absence of publication/AG notice to deny relief | Held that K.H. met the standard: her verified affidavits and counsel’s certifications justified withholding notice under Rule 9 consistent with Trial Rule 65(B) principles |
| Whether public access to the court record posed a significant risk of substantial harm warranting sealing under Admin. R. 9(G)(4)(a)(ii) | Affidavits showed real risk of violence, discrimination, and lasting harm from disclosure of transgender status and birth name | Court disagreed and denied sealing because notice requirements were unmet | Held that K.H. met her burden; the record should be sealed and remain so unless and until evidence shows risk no longer exists |
Key Cases Cited
- In re A.L., 81 N.E.3d 283 (Ind. Ct. App. 2017) (no statutory requirement to publish notice of a gender-marker change; name-change publication requirement is subject to Admin. R. 9 and sealing may be appropriate to avoid substantial risk of harm)