[Cite as In re Application for Correction of Birth Record of Adelaide,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

: : IN RE: APPLICATION FOR : Appellate Case No. 2022-CA-1 CORRECTION OF BIRTH RECORD : OF HAILEY EMMELINE ADELAIDE : Trial Court Case No. 20219090 : : (Appeal from Common Pleas : Court – Probate Division) : :

...........

OPINION

Rendered on the 17th day of June, 2022.

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MAYA SIMEK, Atty. Reg. No. 0086674, 2121 Euclid Avenue, LB 138, Cleveland, Ohio 44115, and

CHAD M. EGGSPUEHLER, Atty. Reg. No. 0094094 & DANIELLE M. EASTON, Atty. Reg. No. 0099591, 950 Main Avenue, Suite 1100, Cleveland, Ohio 44113 Attorneys for Plaintiff-Appellant

.............

LEWIS, J. -2-

{¶ 1} Plaintiff-Appellant Hailey Emmeline Adelaide appeals from a decision of the

Clark County Common Pleas Court, Probate Division, denying her application to change

the sex marker on her1 birth certificate. For the reasons that follow, the judgment of the

probate court is affirmed.

I. Facts and Procedural History

{¶ 2} Adelaide was born in 1973 in Clark County, Ohio. The birth certificate

identified Adelaide as Brian Edward Deboard and the sex marker was checked as male.

In September 2021, Adelaide filed an application in the Clark County Probate Court for a

change of name from Brian Edward Deboard to Hailey Emmeline Adelaide pursuant to

R.C. 2717.02. The following month, Adelaide filed an application in a second case for

correction of her birth record pursuant to R.C. 3705.15, asking to change the sex marker

designation on her birth certificate from male to female. Included with the application

was an affidavit from Adelaide and a copy of a notarized affidavit from William Ford,

Adelaide’s mental health care provider. Both affidavits were completed on the Supreme

Court of Ohio Form 30.0 application for correction of birth record. Adelaide filed a brief

in support of the correction application.

{¶ 3} The two cases were consolidated for a hearing, which was held on November

15, 2021. Adelaide presented her own testimony along with a copy of an unfiled but

completed Form 30.0, which mostly mirrored the original application, but included the

request for both the sex marker change and the name change. She also submitted a

1 Adelaide refers to herself with the pronouns “she/her” and we will likewise use those terms in conformity with her brief. -3-

copy of a letter signed by William Ford, a clinical intern, and Dr. John P. Layh, a clinical

psychologist supervisor. The letter stated that it was written “[i]n support of the sexual

identity validity of Ms. Hailey Deboard, I find her to be consistent in mental competency

exhibiting true authenticity both in self-awareness and introspection. I, William H. Ford,

Sr., MRC, acknowledge and attest to the sexual identity of Ms. Hailey DeBoard (sic) as

‘female’ both psychologically and in lifestyle gender expression.”

{¶ 4} Adelaide testified she was born in 1973 at the Clark County Community

Hospital in Clark County, Ohio, and had resided in that county most of her life. She was

born with biologically male anatomy but began believing she was a female at the age of

four years old. Adelaide currently identifies as female. She came out in July 2020 and

had been seeing her mental health therapist, Bill Ford, for almost a year. She testified

that she believed there was an error on her birth certificate when her sex marker was

checked off as male, because the male sex marker did not take into account her mental

state.

{¶ 5} At the conclusion of the hearing, the probate court orally granted Adelaide’s

application for a change of name but withheld a decision on her application for a correction

of her sex marker. After the hearing, Adelaide filed a brief in support of her application

to correct the sex marker, in which she stressed the importance of Ray v. McCloud,

(S.D.Ohio 2020).

{¶ 6} On December 2, 2021, the probate court issued a written decision denying

Adelaide’s request to correct the sex marker. In addressing the case of Ray v. McCloud,

the probate court concluded that the case did not address the authority of the Ohio -4-

probate courts to issue the order requested. The probate court stated that the “sole

question before this Court is whether or not this Court enjoys the statutory authority to

permit it to order such a change.” Decision at p. 2. The court rejected Adelaide’s

arguments that the word “sex” and the phrase “has not been properly and accurately

recorded” were ambiguous and instead applied the plain meaning of R.C. 3705.15.

Unlike other statutes that allow the probate court to change information on one’s birth

certificate due to changes that occur in life, such as the person’s name or parent’s names

after adoption, the probate court found that nothing in R.C. 3705.15 specifically granted

the probate court authority to issue a change of the sex marker, unless it was originally

made in error. Because the initial recording of Adelaide’s male sex marker at birth

correctly noted that she was born with biologically male anatomy, and her current physical

anatomy supported the determination of male on the sex marker of her birth certificate,

the probate court found there was nothing to be corrected pursuant to R.C. 3705.15.

{¶ 7} This appeal timely followed.

II. Assignments of Error

{¶ 8} Adelaide raises the following two assignments of error:

THE PROBATE COURT ERRED AS A MATTER OF LAW BECAUSE ITS

ORDER DENYING THE BIRTH CERTIFICATE CORRECTION FAILED TO

GIVE DUE RESPECT TO THE CONSTITUTIONAL RULINGS IN RAY II,

THE PRINCIPLES OF WHICH ARE RECOGNIZED BY OHIO COURTS

AND SHOULD HAVE CONTROLLED HERE. -5-

THE PROBATE COURT ERRED AS A MATTER OF LAW BECAUSE ITS

ORDER DENYING THE BIRTH CERTIFICATE CORRECTION IN THE

FACE OF UNDISPUTED FACTS RESTED ON A RESTRICTIVE

INTERPRETATION OF R.C. 3705.15 THAT ADDED LIMITS NOT

CONTAINED IN THE TEXT.

{¶ 9} In her assignments of error, Adelaide argues that the probate court failed to

give due weight to the constitutional rulings identified in Ray v. McCloud,

, which she contends required a broad reading of the applicable statutory language.

She also challenges the probate court’s determination that R.C. 3705.15 did not authorize

the court to change Adelaide’s sex marker on her birth certificate based on the statutory

language. Both of the assignments of error present arguments relating to the statutory

interpretation of R.C. 3705.15. As a result, we will address the assignments of error

together.

III. Standard of Review

{¶ 10} Generally, an appellate court reviews a denial of an application pursuant to

R.C. 3705.15 for an abuse of discretion. In re Application for Correction of Birth Record

of Lopez, 5th Dist. Tuscarawas No. 2004-AP-06 0046,

, citing In re

Hall,

,

(4th Dist.). However, Adelaide challenges the

probate court’s refusal to grant her relief on the grounds that it lacked authority to act

based on the language of the statute. This challenge presents a question of law that we

review de novo. State v. Jeffries,

,

,

. -6-

IV. Probate Court

{¶ 11} “It is a well-settled principle of law that probate courts are courts of limited

jurisdiction and are permitted to exercise only the authority granted to them by statute

and by the Ohio Constitution.” In re Guardianship of Hollins,

, 2007-

Ohio-4555,

, ¶ 11, citing Corron v. Corron,

,

(1988). R.C. 2101.24(A)(1) identifies which subject matter areas are within

the exclusive jurisdiction of the probate court. R.C. 2101.24(A)(2) provides that, in

addition to the specific areas enumerated under the exclusive jurisdiction of the probate

court, the probate court shall also have exclusive jurisdiction over a particular subject

matter if both the following apply:

(a) Another section of the Revised Code expressly confers jurisdiction over

that subject matter upon the probate court.

(b) No section of the Revised Code expressly confers jurisdiction over that

subject matter upon any other court or agency.

{¶ 12} R.C. 3705.15 expressly confers jurisdiction on the probate court to correct

birth records. The procedure for correcting birth records is controlled by R.C.

3705.15(A), which reads, in pertinent part, as follows:

Whoever claims to have been born in this state, and whose

registration of birth is not recorded, or has been lost or destroyed, or has

not been properly and accurately recorded, may file an application for

registration of birth or correction of the birth record in the probate court of

the county of the person's birth or residence[.] * * * -7-

(A) An application to correct a birth record shall set forth all of the

available facts required on a birth record and the reasons for making the

application, and shall be verified by the applicant. * * * The application shall

be supported by the affidavit of the physician or certified nurse-midwife in

attendance. If an affidavit is not available, the application shall be

supported by the affidavits of at least two persons having knowledge of the

facts stated in the application, by documentary evidence, or by other

evidence the court deems sufficient.

The probate judge, if satisfied that the facts are as stated, shall make an

order correcting the birth record[.]

V. Analysis

{¶ 13} The question before this Court is whether the probate court had the

authority under R.C. 3705.15(A) to change the sex marker on a birth certificate where an

individual was identified as one sex at birth but later identifies as the other. Adelaide

contends that the statute should be interpreted broadly to allow individuals to change their

birth marker when it is discovered later in life that their gender identity does not match the

sex listed on their birth certificate. The probate court found that it did not have the

authority under R.C. 3705.15(A) to grant the relief Adelaide requested as the plain

language of the statute only permits corrections to information on the birth certificate that

was recorded in error at the time of registration.

{¶ 14} The inquiry in this case centers on the statutory language “has not been

properly and accurately recorded.” We must first determine if this language is -8-

ambiguous. If the language is ambiguous, then we must interpret the statute to

determine the General Assembly’s intent in enacting it. If it is not ambiguous, then we

need not interpret it; we must simply apply it. Lake Hosp. Sys., Inc. v. Ohio Ins. Guar.

Assn.,

,

(1994). “When the statutory language is

plain and unambiguous, and conveys a clear and definite meaning, we must rely on what

the General Assembly has said.” State v. Hudson, Ohio Slip Opinion No. 2022-Ohio-

1435,__ N.E.3d __, ¶ 21, citing Jones v. Action Coupling & Equip., Inc.,

,

,

. “We ‘do not have the authority’ to dig

deeper than the plain meaning of an unambiguous statute ‘under the guise of either

statutory interpretation or liberal construction.’ ” Jacobson v. Kaforey,

,

,

, quoting Morgan v. Adult Parole Auth.,

,

(1994). “ ‘Our role is to evaluate the statute as a whole and

to interpret it in a manner that will give effect to every word and clause, avoiding a

construction that will render a provision meaningless or inoperative.’ “ State v. Bryant,

,

,

, quoting State ex. rel. Natl.

Lime & Stone Co., v. Marion Cty. Bd. of Commrs.,

,

,

.

{¶ 15} The registration and issuance of birth certificates in Ohio is governed by

R.C. Chapter 3705, which establishes a statewide system of vital statistics maintained by

the Office of Vital Statistics, which is part of the Ohio Department of Health (“ODH”). R.C.

3705.02. “A birth certificate for each live birth in this state shall be filed in the registration

district in which it occurs within ten calendar days after such birth and shall be registered -9-

if it has been completed and filed in accordance with this section.” R.C. 3705.09(A).

“When a birth occurs in or en route to an institution, the person in charge of the institution

or a designated representative shall obtain the personal data, prepare the certificate, and

complete and certify the facts of birth on the certificate within ten calendar days. The

physician or certified nurse-midwife in attendance shall be listed on the birth record.”

R.C. 3705.09(B). The personal data included for a registration of birth includes

information such as the name of the child, place of birth, date of birth, name and birthplace

of mother, and name and birthplace of father. Ohio Adm.Code 3701-5-02, Appendix N.

This also includes checking a box of either “male” or “female.”

A person's biological

sex is determined at birth by an objective anatomical examination by a birth attendant.

This results in a declaration on the birth certificate of either “male” or “female” for the

child’s sex marker. In re Ladrach,

,

(C.P. 1987).

According to the form, “[a]ll facts must be given as of time of birth.” Ohio Adm.Code

3701-5-02, Appendix N.

{¶ 16} Based on the plain language of the statute, we do not find that this language

“has not been properly and accurately recorded” is ambiguous. Adelaide contends that

the phrase “has not been” is in the present perfect tense such that the statute permits any

changes that occur in the time period before and up to the present moment. We do not

agree that the use of this tense means what she contends. Rather, the language

emphasizes the fact that an individual, at any time after the error is discovered, may file

to correct the error because it has not yet been corrected. It does not mean that because

something has changed after the original determination occurred that it then makes the -10-

original determination incorrect. Further, the immediate following language is

“accurately or properly recorded.” Birth records are recorded at the time of birth, or

shortly thereafter, and are then filed with the office of vital statistics. R.C. 3705.01; R.C.

3705.09. The language regarding the accurate and proper recordation of the information

relates back to the original filing of the birth record and whether it was properly and

accurately recorded at that time.

{¶ 17} R.C. 3705.15 is a “correction” statute, which permits the probate court,

when presented with appropriate documentation, to correct errors made at the time of

recordation. In re Ladrach,

,

(applying former R.C.

3705.20 amended and renumbered as R.C. 3705.15); In re J.A.M.V., 7th Dist. Harrison

No. 12 HA 3,

(noting that R.C. 3705.15 is only permitted to correct

spelling or clerical errors on the birth certificate, not to unilaterally change the spelling of

the child’s name later). The statute, by its express terms, permits making corrections,

not amendments. Adelaide’s application essentially asked the probate court to amend

her birth certificate, not to correct it. But the probate court had no authority under R.C.

3705.15 to make that amendment and could not grant Adelaide’s request. In re

Easterling,

,

(1st Dist.) (probate court lacked

authority to amend rather than correct the applicant’s birth certificate under R.C. 3705.15);

In re Maxey, 8th Dist. Cuyahoga No. 34558,

, *1 (Feb. 5, 1976) (applying

former R.C. 3705.20 amended and renumbered as R.C. 3705.15; “there is no statutory

enactment vesting the Probate Court with authority to order a change to the gender

indicated on properly and accurately recorded birth records.”). -11-

{¶ 18} Whereas other statutes specifically allow amendments to the birth

certificate, R.C. 3705.15 only allows corrections. For example, R.C. 2717.02 allows an

individual desiring to change their name to file an application in the probate court of the

county of residence. R.C. 3705.13 then allows the individual the ability to change the

original birth record and have a new birth certificate provided to reflect the name change.

R.C. 3705.12 also allows the amendment of a birth record when an adoption has occurred

allowing the child’s adopted name and the information concerning the adoptive parents

to be issued in the new birth record. While the legislature has expressly provided in other

statutes for a name to be changed or parent’s names to be changed to reflect facts as

they presently exist, the legislature has not provided for changing the sex marker or any

other required fact on a birth certificate, in R.C. 3705.15. One would not file an

application under R.C. 3705.15 to “correct” their name because they decided to amend

or change their name years after birth. Rather, one would have to use the appropriate

statute created by the legislature in order to amend their name on their birth certificate.

This reasoning similarly applies to amendments to the sex marker on a birth certificate.

{¶ 19} The fact that other statutes specifically allow the probate court to grant

amendments to a birth certificate does not mean that R.C. 3705.15 also allows it. If we

were to construe R.C. 3705.15 as permitting the probate court to change, not just correct,

any of the required facts in the birth certificate, then there would be no need for the other

statutes that allow modifications. E.g. R.C. 3705.12; R.C. 3705.13. We decline to find

an ambiguity in the plain language of R.C. 3705.15 where none exists, especially where

doing so would make other statutes obsolete. Absent the express authority from the -12-

legislature to modify the birth certificate to correlate with a later-in-life change, not just

make corrections, the probate court lacked the authority to do so under R.C. 3705.15.

{¶ 20} Adelaide relies heavily on Ray v. McCloud,

, for the

proposition that there is nothing in R.C. 3705.15 that prohibits modifying a birth record to

change the sex marker of an individual. She further contends that the probate court gave

no persuasive weight to the rulings in Ray and that Ray should have controlled here. We

disagree.

{¶ 21} In Ray, four transgender individuals born in Ohio were denied the ability to

change the sex marker on their birth certificates to reflect their gender identities as a result

of the ODH’s blanket policy refusing to issue such birth certificates, regardless of the

manner in which the request was made.

. The parties filed cross-motions

for summary judgment. Id. at 930. After analyzing the constitutionality of ODH’s

policy, the Court found that “a blanket prohibition against transgender people changing

their sex marker is unconstitutional” and permanently enjoined ODH from enforcing the

policy. Id. at 939-940.

{¶ 22} Adelaide acknowledges that Ray is not binding on either the probate court

or this Court but argues it should be accorded persuasive weight. We agree that Ray is

not binding on either the probate court or this Court. State v. Burnett,

,

(2001) (state courts “are not bound by rulings on federal statutory

or constitutional law made by a federal court other than the United States Supreme

Court”). While a federal district court decision may be accorded some persuasive

weight, even if the federal court were to find a statute unconstitutional, it would not end -13-

our inquiry.

But contrary to Adelaide’s contentions, we do not find that Ray

expressly found R.C. 3705.15 unconstitutional or that the outcome in Ray requires us to

ignore the plain language of the statute. Ray relied on established constitutional law

principles in reaching its decision, but it did not analyze the jurisdiction and authority of

Ohio probate courts or the constitutionality of R.C. 3705.15, but rather the blanket policy

enacted by ODH. As the federal court stated, “[a]ll this Court is finding is that a blanket

prohibition against transgender people changing their sex marker is unconstitutional.”

.

{¶ 23} To the extent Adelaide wants this Court to conduct a constitutional analysis

of R.C. 3705.15 based on the same arguments raised in Ray, we decline to do so.

Adelaide did not raise the constitutionality of R.C. 3705.15 in the probate court but rather

argued the plain language of the statute was ambiguous and should be read broadly.

She likewise argues on appeal that the probate court’s interpretation of the statutory

language was erroneous because it was too restrictive. The issue in this case is of

statutory interpretation, not constitutionality. Furthermore, “Ohio law abounds with

precedent to the effect that constitutional issues should not be decided unless absolutely

necessary.” Hall China Co. v. Pub. Util. Comm.,

,

(1977). We do not believe it is necessary to decide whether R.C. 3705.15(A) is

unconstitutional at this juncture.

{¶ 24} The “[p]robate court's jurisdiction [under R.C. 3705.15] pertaining to birth

certificates is limited to ordering the registration of an unrecorded birth and the correction

of a birth record.” Zimmerman v. Montgomery Co. Pub. Health Dept., 2d Dist. -14-

Montgomery No. 26816,

, citing Nemcek v. Paskey,

,

,

. (C.P.) R.C. 3705.15 expressly

confers jurisdiction on the probate court to correct birth records. The significance in the

statute is not that R.C. 3705.15 does not explicitly prohibit correcting the sex marker for

an individual, it is that the statute does not explicitly allow the probate court to modify or

amend any required fact reflected on the birth certificate. Rather, the probate court is

only permitted to make corrections under R.C. 3705.15 if the sex marker, or any other

required fact, “has not been properly and accurately recorded[.]”

{¶ 25} Although a copy of Adelaide’s birth certificate was not submitted in this

case, all evidence suggests that Adelaide was born in a hospital wherein the information

for her birth certificate was prepared, completed, certified, and filed according to the

applicable statutes. There is no allegation that the above-described process was done

in error. Likewise, though Adelaide’s gender identity is now female, she testified that she

was born with male genitalia, further demonstrating that the identification made at the

time of her birth was correctly recorded based on the standard determinations used at

that time, and which continue to be used today. Adelaide is seeking an amendment of

her birth records, not a correction, because the birth certificate was properly and

accurately recorded at the time it was completed and filed. The probate court properly

found that R.C. 3705.15 did not provide the authority to grant Adelaide the relief she

sought, and we do not find that Ray requires us to hold otherwise.

{¶ 26} R.C. 3705.15 is not the proper avenue to seek a modification of a birth

certificate for any required fact, including the sex marker. While there may be alternative -15-

avenues available to Adelaide to accomplish the change that she is seeking, those

alternatives are not before us. In Adelaide’s post-hearing trial court brief, she

acknowledged that Ray did not mandate that ODH adopt any particular policy or process

to change the sex marker on a birth certificate, but it was suggested that ODH could utilize

a process pursuant to R.C. 3705.22 that does not require a court order. She also noted

in her appellate brief and conceded at oral argument that R.C. 3705.22 allows

amendments to birth certificates. She requested that if we found that R.C. 3705.15 was

not the proper forum for the relief she sought, she be granted leave to file a conforming

application under R.C. 3705.22. Although we find that R.C. 3705.15 cannot grant

Adelaide the relief she seeks, we cannot grant her leave to file a conforming application

under R.C. 3705.22 with the probate court. R.C. 3705.22 contemplates that a request

for an amendment to the birth record be filed with ODH as an administrative remedy, not

with the probate court.

{¶ 27} Having found that the probate court lacked the authority to amend

Adelaide’s birth certificate to reflect an amendment to the sex marker, we overrule both

of Adelaide’s assignments of error and affirm the decision of the probate court.

VI. Conclusion

{¶ 28} The decision of the trial court is affirmed.

.............

TUCKER, P.J. and WELBAUM, J., concur.

Copies sent to: -16-

Maya Simek Chad M. Eggspuehler Danielle M. Easton Hon. Richard P. Carey