*1 8, September 2, August denied Argued reconsideration June affirmed 12, 1976 petition October for review allowed Reports later issue of See K., Respondent,
v. DIVISION, Appellant. HEALTH 5464) (No. C-2180, CA P2d 840 552 Salem, General, Laue, Al J. Attorney Assistant the brief him on With for appellant. cause argued were Johnson, General, Lee and W. Michael Attorney Gillette, General, Solicitor Salem. Arenz, Portland,
John H. argued the cause for respondent. Benson, With him the brief were Arenz, Davis, Lucas & Portland. *2 Schwab, Fort,
Before Chief and and Judge, Langtry Judges.
FORT, J. FORT, J. Human Department Division of
The Health court order of the circuit from an appeals Resources new birth certificate to issue directing male and the sex as designating petitioner to a those common names from given the specified mаle. common to a names specified female to recognition of the recent arises as a result This case develop and the even more recent medical science treat and designed medical procedures ment of known as transsexu rare1 affliction2 alleviate alism.3 problems, nature of the of the unusual
Because record, substantive, this and raised both procedural length. at some procedures the facts and we set forth Change filed a Petition for Petitioner, aged then 13, 1973. ORS on November in circuit Name show cause that date an order to 33.410 to 33.430. On was issued hearing place a time setting Courthouse County the Multnomah postеd *3 filed and were objections 33.420. No by ORS required 1973, 30, was entered on November an order further and which of name change directed the desired (1972), 85, Criminology Matto, Society, 89 The Transsexual in 10 1In M. the author states: and, 2,000 country, if in this transsexuals "There are an estimated included, figure described as transvestites are the 'borderline’ cases 10,000. Probably estimаte of accurate minimal the most runs over prevalence Pauly reported Dr. Ira B. a ratio of transsexualism is 100,000 men to general population, the rate for 1 : 1968 of being approximately 4 : 1.” women data, persons United in the petitioner about 400 is one of Based on that changing group women to men. from who falls within States Himself, 99-102. 2Matto, Perceives op. How the Transsexual cit.: belong broadly an obsession to can be defined as 3"Transsexualism by psychological or practically other opposite reversible sex which is not * * *” Comments, in Limbo: Notes and Transsexuals treatment. medical (1971). Sex, See also: Legal L Rev 236 31 Md The Search Definition of (New 319, Weiner, 380, Yоrk Anonymous 320-31 50 Misc 2d 270 NYS2d v. Surgery, Transsexualism, Reassignment 1966); Comment, County Sex Ct cit, Matto, (1971); op. Law, 85-86. 56 Cornell L Rev 963 and the ordered the State Board of Health to issue a new birth "designating the sex as male and name as (the name). 13, [K]” male requested On December 1973, the court issued its Order for Certificate in com- pliance 23, with the January name order. On 1974, appеllant filed its Motion to Set Aside Order for (Special Appearance), Certificate three urging sup- porting grounds:
"1. The State Board of Health party was not made a original petition to the of name and sex. "2. The State duly Board of Health was not served with said petition pleadings or other through legal process.
"3. The Court does not have to order the State Board of Health to issue a new birth certificate person.” the sex of a On February 1974, following a show cause hear- ing motion, based on that the court amended its Order Changing Name by interlineation so that it read as follows: "IT IS FURTHER ORDERED that after surgery
corrective a new birth certificate shall be issued to pеtitioner by the State Board of Health for the State of Oregon designating the sex as male and name as [K]” (the name). requested male 22,1975, On October petitioner’s attorney prepared and served on the Division motion, accompanied by affidavit,4 alleging that petitioner’s sex reassign-
4‡ ‡ ‡ ‡ "In the Matter of the Change of Name of
[female name] No. C 2180 AFFIDAVIT
Petitioner, "STATE OF OREGON
"County of Multnomah
"I, Arenz, being duly sworn, depose say John H. first and as follows: attorney Petitioner, name], [female [male "I am the now known name].
[314] requesting completed and surgery been had ment implementation change of of amended order of February designation 6, 1974. of sex name and following: petition on file herein sets forth "That " H. of John presently the care under is a transsexual 'Petitioner 1146, Oregоn, presently a can- Waterman, M.D., Roseburg, is and Box required live as a reassignment surgery as such is and didate for sex male for a Petitioner surgery. finally accepted years for such period of two before [male working living under the name presently name].’ 30,1973, issued Harlow F. Lenon the Honorable November "That on name]. [male That [female name] to from Petitioner’s name order in addition 6,1974, order, February provided that thereto, as amended said surgery for the State Board of Health the State corrective after designating the Oregon Petitioner a new birth is to issue to [male name]. and name as sex as male 1974, 6, February subsequent order dated "That amended University reassignment surgery of Ore- at the sex Petitioner underwent treating physi- gon cian, me that his Center. Petitioner advised Health Sciences Tank, reassignment surgery, charge was Dr. Edward S. the sex University Surgery (Urology) Associate Professor Health Sciences Center. 1975, reassignment advised me that the sex Petitioner "That June Tank in surgery completed Tank. I contaсted Dr. Dr. Edward S. had been June, 1975, supply requested with written verification that he me successfully completed. reassignment surgery had been Petitioner’s sex Tank, request, Dr. Edward S. I received a letter from "Pursuant to said attached, A and this July marked Exhibit 1975. Said letter is dated incorporated reference herein. facts, foregoing I make this affidavit upon stаtement of "Based reassignment verifying completion purpose of Petitioner’s sex surgery. H. Arenz
/si John H. Arenz John 22, 1975. to before me Oct. "Subscribed and sworn Exhibit A: "UNIVERSITY OF OREGON 9,1975 July
HEALTH SCIENCES CENTER Mr. John Arenz Attorney Lawat Bldg. 1023 Public Service Portland, Oregon 97204
Dear Mr. Arenz: point completed certify sex [K] has at this letter is to "This *5 by appearance the Division
No further was made 3, 1975, the court issued its order and on November "* * * of Health fоr the State that the State Board desig- Oregon petitioner issue to a new birth (the requested nating [K]” sex as male and name as the name). male appeals. It this order that the state is from history procedural case of this We have outlined we have concluded that this is an because provides: 1.160. That statute case to invoke ORS by by jurisdiction is, or sta- "When the Constitution judicial officer, tute, means to all the conferred on a court or given; carry and in into effect are also jurisdiction, proceedingis if the courseof exerciseof pointed by procedural specifically statutes, out not may any process proceeding suitable or mode of may adopted spirit appear most conformable procedural of the statutes.” applications provide ORS 33.410 to 33.430 change together 3.260, applications and, 3.270 name with ORS 3.275(1), such vest over the order of Feb- in the circuit court. At the time of ruary provided part: 6, 1974, 33.410 in ORS "* * * except change person, name of a No reassignment so that he should be considered a male rather than by complete psychiatric Ira [K] evaluation Dr. female. Mr. underwent a transsexualism, internationally Pauly, expert and after that known surgical team at the evaluation was considered the transsexual University unanimously decided Medical Center. That team surgical reassignment. proceed aspect He subse- of his sex to quently with organs. had all internal female Then had removal of his surgical genitoplastic surgery complete There is reconstruction. question of the members of the transsexual no in the minds anything Pauly patient that this but a male. team or Dr. glad anything supplied will be "If further needs to be the tеam supply it.
yours,
Respectfully /s/ Edward Tank Tank, S. M.D. Edward
Associate Professor Surgery (Urology) divorce, made shall be marriage or upon her woman public with reasons consistent for sufficient unless * *”* satisfactory to the court. interest entered from was appealed the order When had eliminated that sentence been November legislature provided: placе and in its * "* * by the granted name shall be change The consis- is not the court finds that court unless public interest.” tent with 33.430(1) of a in the case provides child, a minor the name of parents court order of *6 for the certificate shall issue a new birth the appellant The old parents. the new name of his containing child however, did the time, At be sealed. no certificate shall with problem statute deal with of name change here, its namely, contend which the trial court had to a birth certificate change gender to order of on power More the name. ancillary change to its to power in referred to above in the instance important, except 33.430(1), expressly the statute nowhere ORS a new to issue appellant authorizes the court to direct an birth to an order pursuant certificate applicant’s name. 432.135, which pro in ORS authority
We find such vides: by the filing any of certificate acceptance
"The pre- time after the Registrar State more than six months such certifi- filing, any alterаtions of scribed for its Registrar, shall be filed with the State cate after is pre- the division shall subject regulations to in which by any appli- proofs to be submitted scribe in detail certificate, or of a delayed filing or an alteration cant for com- county court or other court to the order of of supplied.) petent jurisdiction.” (Emphasis any regulations our attention to Neither calls party relat- to ORS 432.135 pursuant adopted by appellant seeking an by applicant to be submitted ing proof the gen- We find that a birth certificate. alteration of matters, power authority family-related eral over ORS names, authority granted and the a to order 432.135 the circuit givе certificate. It is obvious gender birth accurately is to birth purpose required law it is set forth the information the cer- does not contend appellant contain. The accu- in its file is fact currently tificate of petitioner 174.020 gender. pro- as to name or rate either vides in part: of a statute the intention of "In the construсtion * * if pursued possible is to be v. Star Court Johnson
Recently
Supreme
(1974),
Co.,
694,
The court then cited quoted (1944), 339, 148 P2d Galloway, v. 174 Or 922 including: " 'When, however, application a literal lan- result, absurd it is guage produces an or unreasonable act, so that duty possible, to construe the if it reasonable and workable law and not inconsistent is a legislature: omit- general policy [citations with the ” * *’ * Court.) by Supreme 270 (Emphasis supplied
ted.] Or at 705.
It by saying: then concluded * * «* * * * * * * [j]t to would not be unreasonable * * * thing may the letter of state that a not within yet be within the intention of its makers. statute earlier, legislative
As it is intent con- stated give such must trols. When intent manifest courts effect, it do the literal though even so does violation to [Citations omitted.]” its 270 Or at meaning of words. 706. the circuit we
Accordingly,
since
conclude
authority
in the exercise of
court had
to order
and 432.135
under ORS 33.430
granted
a birth cer
gender
name
both the
authority to
tificate,
ancillary
to its
latter
this is an
name,
next whether
change the
we consider
under
it to
procedures
case for
provide
Inc.,
Co.,
262 Or
Sprouse-Reitz
In
v.
ORS 1.160. Wulff
(1972),
Court
293, 312-13,
766
the Suрreme
498 P2d
examina
allowing witness
held that
the trial court’s
sta
manner not
provided
tion in a
However,
Timber/Ber
in Amer.
tute
not an error.
was
(1972),
The final question is whether procedure used by the trial court is appropriate. The trial judge required the posting of the proposed name change as required by 33.420. Following the appearance of the appel- lant in the proceeding, ordered the gender on the birth certificate only after the appearance by in appellant a show cause hearing held following entry order, of the first and thereafter notification letter from the surgeon at the Oregon Health Sciences Center that sex reassignment surgery had been him satisfactorily completed. We note that the was surgery performed by a team at the University of Oregon Health Sciences Center after a psychiatric evaluation and after petitioner lived two years a successfully as male. Under the circumstances we find that the proce- dures used by the triаl court were sufficient to warrant the issuance of the corrected birth certificate.
Affirmed.
SCHWAB, J.,C. dissenting. The unusual gender-change aspect may of this case — conceal the breadth of the majority’s holding every time a circuit court orders that a name person’s changed, circuit court also has order that the person’s birth сertificate be altered to reflect the new name. My fundamental disagreement vdth this holding is: The majority considers a birth certificate to be a record of the facts as they presently exist; Ias read ORS ch a birth a certificate record of the facts as they were at the time of birth. It view, follows, subsequent my unless altering no basis for birth fаcts is *9 provided. has so expressly legislature the birth alteration of has authorized The children limited when very situations: certificates 109.310,109.400 432.415; when adopted, are ORS ORS illegitimate marry, an child the parents 432.425; changed are and when names parents’ the aid order, None of these statutes ORS 33.430. compels Their more holding. presence likely mаjority’s conclusion, more likely implica- since the opposite cer- statutory authority to alter birth arising tion from authority situations is that specific tificates exist. does not otherwise
In the to enable courts grant broad accurate, currently birth keep all certificates ORS to alt- relies 432.135 which refers majority upon the order being subject eration of birth certificates "to competent court or other court of county understanding with jurisdiction.” my Consistent — ORS ch 432 that a certifi- statutory scheme of birth time of they cate is a record of the facts as were —birth I hold that 432.135 only empowers would that do courts to order alteration of birth certificates at the accurately they not reflect facts as were time of birth. one only
Were interests at stake those of the case, in this I individual involved would be inclined join majority. But in hand extending helping individual, converting this one be majority may pro- this state’s vital-records into census program is too gram always must to date. That kept up judicial join act of for me to sweeping legislation the sake of one individual. I dissent. foregoing respectfully
For reasons