[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re Application for Correction of Birth Record of Adelaide, Slip Opinion No. 

.]




                                         NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.




                          SLIP OPINION NO. 

    IN RE APPLICATION FOR CORRECTION OF BIRTH RECORD OF ADELAIDE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
 may be cited as In re Application for Correction of Birth Record of Adelaide,
                         Slip Opinion No. 

.]
Court of appeals’ judgment left undisturbed in the absence of a majority to render
        a judgment.
   (No. 2022-0934—Submitted April 4, 2023—Decided November 19, 2024.)
                APPEAL from the Court of Appeals for Clark County,
                           No. 2022-CA-1, 

.
                                  __________________
        {¶ 1} In the absence of a majority, which is necessary to render a judgment,
see Ohio Const., art. IV, § 2(A), the judgment of the Second District Court of
Appeals is left undisturbed.
        FISCHER, J., would affirm the court of appeals’ judgment, as explained in an
opinion.
                             SUPREME COURT OF OHIO




       DONNELLY, J., would affirm the court of appeals’ judgment, as explained in
an opinion joined by STEWART, J.
       BRUNNER, J., would reverse the court of appeals’ judgment and remand the
cause to the probate court, as explained in an opinion.
       DETERS, J., would reverse the court of appeals’ judgment and remand the
cause to that court, as explained in an opinion joined by KENNEDY, C.J., and
DEWINE, J.
                              __________________
       FISCHER, J., for affirming the court of appeals’ judgment.
       {¶ 2} This court accepted jurisdiction over appellant Hailey Emmeline
Adelaide’s appeal from the Second District Court of Appeals’ judgment upholding
the Clark County Probate Court’s judgment denying her application to correct the
sex marker on her birth certificate. See 

; 

 (2d
Dist.). However, we now leave the Second District’s judgment undisturbed and
decline to address the propositions of law accepted for review because we cannot
reach a consensus on how this case should be resolved. While there is a majority
that rejects the position adopted by the fourth separate opinion concerning the
unbriefed issue of adversity, there is division among that majority on how this court
should resolve the propositions of law. It is an unfortunate day for the litigants in
this case and Ohioans that we cannot reach a consensus.
       {¶ 3} Because we are unable to reach a consensus and issue a judgment,
arguably, any opinion released in this case would be advisory. Indeed, it is our
judicial responsibility to refrain from giving opinions, premature declarations, or
advice on potential controversies. See Fortner v. Thomas, 

(1970). However, in this case, there is a controversy and a party who deserves a
clear answer from this court. Thus, I feel compelled to voice my separate opinion,
despite this court being unable to issue a judgment, so that the parties and Ohioans
may better understand the reasons for the entry released by this court.


                                         2
                                January Term, 2024




    I. An unbriefed issue that alters the appellate court’s subject-matter
    jurisdiction should not be resolved by this court without supplemental
                                       briefing
       {¶ 4} We accepted three propositions of law challenging the merits of the
denial of Adelaide’s application to correct the sex marker on her birth certificate.
See 

.         The propositions of law addressed the statutory
interpretation of R.C. 3705.15 and the probate court’s “authority” to “correct”
Adelaide’s birth certificate.
       {¶ 5} It was at oral argument that we questioned whether adversity was at
issue given that no party had opposed Adelaide’s application. Counsel for Adelaide
acknowledged that no party opposed Adelaide’s application but was nevertheless
adamant that this court should review this matter based on caselaw and this court’s
power of judicial review under the Ohio Constitution. Counsel also did not oppose
this court’s ordering supplemental briefing or appointing a party to represent the
State of Ohio’s interest. However, this court never ordered supplemental briefing
on the issue of adversity or appointed a party to represent the State’s interest, and I
think this was an egregious judicial mistake.
       {¶ 6} When an issue comes to light after initial briefing is completed and it
is necessary for us to address that issue to resolve the matter before the court,
especially concerning subject-matter jurisdiction, we can and usually do order
supplemental briefing. See S.Ct.Prac.R. 16.08 and 17.09(A); see also State v.
Jones, 

 (sua sponte ordering the parties to brief whether this court
had jurisdiction over the appeal under Article IV, Section 2 of the Ohio Constitution
before resolving the appeal on the merits); Repp v. Best, 

 (sua
sponte ordering the parties to brief whether a judge who receives a six-month
suspension from the practice of law results in a “vacancy” under R.C. 1901.10,
given the removal procedures in the Ohio Constitution); Preterm-Cleveland v. Yost,

 (sua sponte ordering the parties to brief the effect of the passage


                                        3
                             SUPREME COURT OF OHIO




of Issue 1). And we have requested supplemental briefing from the attorney general
of Ohio when a matter was likely to have an impact on the State. See In re Adoption
of Y.E.F., 

 (sua sponte requesting that the attorney general file an
amicus brief to address whether the probate court’s denial of a request for
appointment of counsel constituted a final, appealable order and whether the State
was required to provide counsel to indigent parents facing termination of parental
rights by adoption in probate court).
       {¶ 7} If this court is going to resolve an unbriefed question that relates to
the subject-matter jurisdiction of the lower courts and that necessarily requires
interpretation of the Ohio Constitution, as is suggested by the fourth separate
opinion, we should order supplemental briefing to ensure that all matters are
considered and that our decision does not have unintended consequences. See State
ex rel. Maxcy v. Saferin, 

 (Fischer, J., dissenting) (stating that
the court was unable to give full and fair consideration to how two constitutional
provisions interacted when the issue was not briefed). Thus, I would have ordered
supplemental briefing on the issue of adversity and requested that the attorney
general of Ohio and/or Ohio’s state registrar, see R.C. 3705.03(A), file a merit brief
or an amicus brief to inform our review of this matter.
      II. I am not convinced that there is an adversity issue in this case
       {¶ 8} Without the benefit of briefing on the issue of adversity, the fourth
separate opinion, joined by two other justices, would hold that the court of appeals,
not the probate court, lacked the power to decide Adelaide’s appeal because of a
lack of adversity. Separate opinion of Deters, J., ¶ 94. To find a lack of adversity,
the fourth separate opinion concludes that no adverse interest to Adelaide’s
application exists. Id. at ¶ 102. The fourth separate opinion’s conclusion that the
appellate court lacks jurisdiction because adversity is lacking is not fully
convincing and is yet another reason why I strongly believe that supplemental
briefing should have been ordered in this case.


                                          4
                                  January Term, 2024




        {¶ 9} The Ohio Constitution provides that “[t]he judicial power of the state
is vested in a supreme court, courts of appeals, courts of common pleas and
divisions thereof, and such other courts inferior to the Supreme Court as may from
time to time be established by law.” Ohio Const., art. IV, § 1. In 1877, this court
noted that the term “judicial power” did not have a defined meaning and that the
jurisdiction of Ohio’s courts was “such as may be prescribed by law.” State ex rel.
Atty. Gen. v. Harmon, 

, 258 (1877); see also Ohio Const., art. IV, §
18. Thus, this court expressed that “judicial power, within the meaning of the
constitution, is to be determined in the light of the common law and of the history
of our institutions as they existed anterior to and at the time of the adoption of the
constitution.” 

. This court further stated that judicial power is the
“authority to hear and determine a controversy upon the law and fact.”              

Therefore, judicial power in essence refers to a court’s jurisdiction to decide a
matter. See Corder v. Ohio Edison Co., 

, ¶ 14 (“Subject-matter
jurisdiction refers to the constitutional or statutory power of a court to adjudicate a
particular class or type of case.”); Pratts v. Hurley, 

, ¶ 11 (stating
that jurisdiction is a court’s statutory or constitutional power to adjudicate a case);
Morrison v. Steiner, 

 (1972), paragraph one of the syllabus
(“Subject-matter jurisdiction of a court connotes the power to hear and decide a
case upon its merits . . . .”).
        {¶ 10} While all judicial power has been vested since 1851 in the various
Ohio courts under Article IV, Section 1, the Ohio Constitution has since been
amended to specifically set forth the subject-matter jurisdiction of each of the Ohio
courts: Article IV, Section 2 sets forth the organization and jurisdiction of this
court; Article IV, Section 3 sets forth the organization and jurisdiction of the courts
of appeals; and Article IV, Section 4 sets forth the organization and jurisdiction of
the courts of common pleas. See Milligan & Pohlman, The 1968 Modern Courts
Amendment to the Ohio Constitution, 29 Ohio St.L.J. 811, 840-845 (1968).


                                        5
                             SUPREME COURT OF OHIO




       {¶ 11} Article IV, Section 4(B) limits the jurisdiction of the courts of
common pleas and divisions thereof to “justiciable matters . . . as may be provided
by law.” See also State ex rel. Barclays Bank PLC v. Hamilton Cty. Court of
Common Pleas, 

; McQueen v. Dohoney, 

 (1st Dist.). The justiciability requirement is set forth in the Ohio Constitution
only in Article IV, Section 4(B), and this court has explained that “justiciable
matters” are limited to “‘actual controversies between parties legitimately affected
by specific facts,’ ” Barclays Bank at ¶ 21, quoting Fortner, 

.
When deciding “actual controversies,” courts are “not to give opinions upon moot
questions or abstract propositions, or to declare principles or rules of law which
cannot affect the matter at issue in the case before it.” Travis v. Pub. Util. Comm.,

 (1931).
       {¶ 12} Article IV, Section 3 provides that the subject-matter jurisdiction of
the courts of appeals is limited to matters in which a court of appeals has original
jurisdiction, Ohio Const., art. IV, § 3(B)(1), “jurisdiction as may be provided by
law to review and affirm, modify, or reverse judgments or final orders of the courts
of record inferior to the court of appeals within the district,” Ohio Const., art. IV,
§ 3(B)(2), or “appellate jurisdiction as may be provided by law to review and
affirm, modify, or reverse final orders or actions of administrative officers or
agencies,” id. Relevant to this case, the General Assembly has provided courts of
appeals with jurisdiction to review final orders, as defined by R.C. 2505.02(B), and
“any final order, judgment, or decree of the probate court” on a question of law
under R.C. 2101.42. Hence, as a matter of constitutionality and statute, there is no
specific or explicit “justiciability” requirement placed on courts of appeals under
the Ohio Constitution.
       {¶ 13} Rather, the requirement for adversity flows from the justiciability
requirement on the courts of common pleas’ subject-matter jurisdiction. See Ohio
Const., art. IV, § 4(B). On appeal, this court and the courts of appeals are concerned


                                          6
                                January Term, 2024




about adversity not because it affects appellate jurisdiction, but because it is
necessary to invoke the jurisdiction of the courts of common pleas to render a valid
judgment. See Barclays Bank at ¶ 14-23 (issuing a writ of prohibition against the
Hamilton County Court of Common Pleas after finding that that court lacked
subject-matter jurisdiction because of a lack of an adverse legal interest); Bank of
Am., N.A. v. Kuchta, 

, ¶ 17 (stating that subject-matter jurisdiction
may be challenged at any time because a court that lacks subject-matter jurisdiction
renders that court’s judgment void ab initio). To hold that the justiciability
requirement applies to courts of appeals is to add language to Article IV, Section 3
of the Ohio Constitution that does not exist. See State ex rel. Taylor v. French, 

, 204 (1917) (stating that this court’s duty is to “uphold and maintain
the plain and explicit terms of the Constitution”); Smith v. Leis, 

,
¶ 57 (noting that this court applies the same rules of construction in interpreting the
Ohio Constitution and in construing statutes); League of Women Voters of Ohio v.
Ohio Redistricting Comm., 

, ¶ 286 (Fischer, J., dissenting) (stating
that the omission of the phrase in one constitutional provision and the inclusion of
the phrase in another constitutional provision supports the inference that the term
left out must have been meant to be excluded). Thus, to determine the jurisdiction
of the courts of appeals, we look at the requirements under Article IV, Section
3(B)(1) and (2) of the Ohio Constitution and the relevant statutory provisions
governing appellate review, see R.C. 2505.02(B) (defining final orders); R.C.
2101.42 (granting courts of appeals jurisdiction to resolve questions of law in
probate-court orders).
       {¶ 14} Here, the fourth separate opinion does not deny that the probate court
issued an order denying Adelaide’s application to correct the sex marker on her
birth certificate based on a lack of authority and that such an order would satisfy
R.C. 2505.02 and/or 2101.42. The fourth separate opinion also does not contend
that Adelaide was not an aggrieved party or that the issue surrounding her birth


                                        7
                              SUPREME COURT OF OHIO




certificate is barred by the mootness doctrine. See State v. Bates, 

 (observing that a “party that benefits from an error cannot be the party
aggrieved” on appeal); M.R. v. Niesen, 

 (noting that generally,
courts do not decide moot issues). Thus, the Second District may have had (and
probably did have) jurisdiction to review the probate court’s order denying
Adelaide’s application. But without supplemental briefing, we may never know.
        {¶ 15} The lack-of-adversity argument raised by the fourth separate opinion
in relation to the probate court’s jurisdiction still falls short of success. The General
Assembly has the power to define the subject-matter jurisdiction of the courts of
common pleas. Ostanek v. Ostanek, 

, citing Ohio Const., art.
IV, § 4(B). Here, the General Assembly has provided that after a person applies
for the correction of a birth record under R.C. 3705.15, “[t]he probate judge, if
satisfied that the facts are as stated, shall make an order correcting the birth record.”
R.C. 3705.15(A). Thus, the General Assembly gave the probate court jurisdiction
to order a correction of a birth record.
        {¶ 16} As for an interest in the correction of Adelaide’s birth record, the
fourth separate opinion notes that there is no adversity here to satisfy the
justiciability requirement because no party claims to have a competing interest. See
separate opinion of Deters, J., at ¶ 102. But the fourth separate opinion fails to
recognize that Ohio’s state registrar may have a directly adverse interest in light of
his or her duties under R.C. 3705.03(A)(1).
        {¶ 17} Birth certificates are part of Ohio’s statewide system of maintaining
a record of vital statistics. See R.C. 3705.02, 3705.09, and 3705.15(D)(1). The
General Assembly tasked the state registrar to head Ohio’s office of vital statistics
and “[a]dminister and enforce” the rules set forth in R.C. Ch. 3705. (Emphasis
added.) R.C. 3705.03(A)(1). Since corrections of birth records are listed within
R.C. Ch. 3705, see R.C. 3705.15(A), the state registrar has an interest in ensuring
that applications to correct birth certificates are granted in accordance with the rule


                                           8
                                 January Term, 2024




pertaining thereto, i.e., applications to correct birth records that are supported with
sufficient evidence are granted and applications to correct birth records that are not
supported with sufficient evidence are denied, see id. (stating that an application to
correct a birth record shall set forth all available facts required on a birth record and
the reasons for making the application and the probate judge shall issue an order
correcting the birth record if the judge is satisfied that the facts are as stated). To
say that Ohio’s state registrar completely lacks any interest in enforcing these rules
is to read R.C. 3705.03(A)(1) as meaningless. See State ex rel. Carna v. Teays
Valley Local School Dist. Bd. of Edn., 

 (stating that courts
should avoid any statutory construction that would render a provision meaningless
or inoperative).
        {¶ 18} Other provisions of R.C. Ch. 3705 also support the conclusion that
the State generally has an interest in maintaining correct birth records. The General
Assembly specifically noted that for an application for registration of an
unrecorded, lost, or destroyed birth record, the applicant could be subjected to
cross-examination by an interested person or by the prosecuting attorney of the
county where the application was filed. R.C. 3705.15(B). If the State has an
interest in an unrecorded, lost, or destroyed birth record, how does the State not
have an interest in the correction of a birth record? Either the State has an interest
in the correctness of this important legal document or it does not.
        {¶ 19} To conclude that the State does not have an interest in maintaining
and preserving correct birth records not only ignores R.C. 3705.03(A)(1), but it also
seems illogical. This is apparent when we consider the implications of a birth
certificate, especially for changes in sex markers and age. For example, Ohio has
an interest in enforcing laws that relate to selective service, which applies only to
men who are ages 18 to 25:




                                         9
                              SUPREME COURT OF OHIO




        In our judgment, Ohio has a legitimate interest, as does any state, in
        helping to promote the objectives of the federal government in
        providing for a common defense. To the extent that a military draft
        would be necessary to ensure the safety of our country, each of the
        several states has a considerable stake in the maintenance of a
        readily available national military force to protect the country and
        the interests of the individual states. Thus, encouraging selective
        service registration is not only a federal interest, but is also a basis
        for legitimate state concern.


Klepper v. Ohio Bd. of Regents, 

 (1991). If the State has a
legitimate concern about encouraging selective-service registration, then would it
not follow that the State has a legitimate concern about safeguarding the reliability
of selective-service registration by ensuring the accurate reporting of information
included on birth certificates? Additionally, the General Assembly has enacted
laws impacting intercollegiate single-sex teams, including forbidding state
institutions and private colleges from knowingly allowing persons of the male sex
to participate on athletic teams or in athletic competitions designated for female-
sex participants, R.C. 3345.562(C). There is an argument that the State would have
some interest in maintaining correct birth certificates to ensure the proper
enforcement of this law. Based on these two examples, it is at least arguable that
the State has an interest in applications seeking to correct a birth certificate and that
this interest would satisfy the justiciability requirement in Article IV, Section 4(B)
of the Ohio Constitution.
        {¶ 20} Further supporting the conclusion that the lower courts have
jurisdiction to decide and review Adelaide’s application to correct the sex marker
on her birth certificate is this court’s decision in In re Bicknell, 

.
In Bicknell, this court determined the merits of a similar matter—the validity of


                                           10
                                 January Term, 2024




legal-name changes under R.C. Ch. 2717. Bicknell at ¶ 1, 4, 18. In Bicknell, which
was decided before same-sex marriage was recognized in Ohio, see Obergefell v.
Hodges, 

 (2015), a same-sex couple filed separate applications with a
probate court to have their surnames changed in order to legally have the same
surname, 

. Under R.C. Ch. 2717, the probate court could grant an
applicant a legal-name change if the facts showed reasonable and proper cause for
changing the name of the applicant. See 

. Though no party
opposed the applications, the probate court nevertheless denied the applications
because changing the surnames of a cohabitating couple would “‘give an aura of
propriety and official sanction to their cohabitation and would undermine the public
policy of this state which promotes legal marriages and withholds official sanction
from non-marital cohabitation.’ ” 

 at ¶ 2 (quoting the probate court’s decision).
This court reversed that judgment, finding that the couple evinced no criminal intent
or fraudulent purpose in wanting to change their surnames and that they were not
attempting to evade creditors or create the appearance of a state-sanctioned
marriage. Id. at ¶ 18. If there was justiciability in Bicknell, then there certainly
should be justiciability in the case at bar.
        {¶ 21} But even assuming arguendo that Bicknell was wrongly decided
because of a lack of justiciability at the probate-court level, we cannot reach the
same conclusion here. The General Assembly provided that Ohio’s state registrar
“shall head the office of vital statistics and . . . [a]dminister and enforce [R.C. Ch.
3705], the rules issued under [R.C. Ch. 3705], and the instructions of the director
[of health] for the efficient administration of the system of vital statistics.”
(Emphasis added.) R.C. 3705.03(A)(1). It is Ohio’s state registrar who may have
an adverse interest here since the registrar has an explicit duty to administer and
enforce the rules pertaining to the correction of birth records.
        {¶ 22} Under Article IV, Sections 3 and 4 of the Ohio Constitution and the
various provisions of R.C. Ch. 3705, the fourth separate opinion’s conclusion that


                                         11
                             SUPREME COURT OF OHIO




adversity is lacking in this case and that the Second District lacked jurisdiction to
review the matter is unconvincing, at best. And without supplemental briefing by
a party who may have an interest, this court may never know the many possibly
important arguments on this subject.
                       III. The merits of Adelaide’s appeal
       {¶ 23} Because this court declined the opportunity to order supplemental
briefing to address adversity and because I find the fourth separate opinion’s
argument concerning adversity unconvincing, I will proceed to address the merits
of this case. As discussed by the second separate opinion, the issue before us is
whether the probate court has the authority under R.C. 3705.15 to grant Adelaide’s
application to correct the sex marker on her birth certificate. Separate opinion of
Donnelly, J., ¶ 35, fn. 1. I agree with the second separate opinion that the probate
court had no evidentiary basis and thus no authority to grant Adelaide’s application,
see id. at ¶ 46, and would therefore affirm the judgment of the court of appeals.
       {¶ 24} The plain language of R.C. 3705.15 does not permit a probate court
to grant an application to correct a sex marker on a birth certificate when the cause
for the application arises from changes in fact or circumstance that occur after the
applicant’s birth. See separate opinion of Donnelly, J., at ¶ 40. R.C. 3705.15(A)
allows a person born in Ohio whose registration of birth “has not been properly and
accurately recorded” to file an application for “correction of the birth record” in the
probate court, but the probate court may grant that application only “if satisfied that
the facts are as stated” in the application and those facts demonstrate that the
registration of birth “has not been properly and accurately recorded.” Therefore, if
the probate court finds that the facts demonstrate that the birth record was “properly
and accurately recorded,” then it has no authority to grant the application. Id.
Compare State v. Apanovitch, 

 (a trial court has no authority
to consider a postconviction petition if the petitioner has not satisfied the
requirements in R.C. 2953.23(A)).


                                          12
                                January Term, 2024




       {¶ 25} The probate court, in determining whether the birth record was
properly and accurately recorded, looks to the evidence provided by the applicant
that demonstrates the person’s sex at the time of birth because as discussed in the
second separate opinion, the birth-registration process is focused on recording the
event and the circumstances of the person’s birth, separate opinion of Donnelly, J.,
at ¶ 40. Accordingly, any “correction” to a person’s birth record would be limited
to the circumstances and facts at the time of the person’s birth. To hold otherwise
would broaden the scope of R.C. 3705.15 and make irrelevant other statutes that
allow for modifications of birth records because of circumstances that arise after a
person’s birth, see id. at ¶ 41; R.C. 3705.12 (new birth record issued for an adopted
child); R.C. 3705.13 (changes to a birth record after a legal name change); R.C.
3111.13(A) and (B) and 3111.18 (new birth record issued if the judgment or order
of a court determining the existence or nonexistence of a parent-and-child
relationship is at variance with the child’s birth record), and would therefore be
contrary to our role in interpreting statutes, see Boley v. Goodyear Tire & Rubber
Co., 

 (the court should avoid construing a statute that renders
a provision meaningless or inoperative). And despite the many policy concerns in
this case, we cannot construe R.C. 3705.15 in a manner inconsistent with its plain
language to right a perceived wrong. It is up to the General Assembly to decide
whether to create any additional opportunities for persons born in Ohio to amend
their birth records. See Kaminski v. Metal & Wire Prods. Co., 

 (it is not the role of the courts to establish legislative policies). Therefore, I
agree with the second separate opinion that the statutory scheme does not permit
the correction of a sex marker on the birth certificate of a transgender person. See
separate opinion of Donnelly, J., at ¶ 43.
       {¶ 26} In this case, the lower courts reached the right result. The probate
court denied Adelaide’s application because her sex was properly and accurately
recorded at the time of her birth, as demonstrated by her testimony that she was


                                        13
                             SUPREME COURT OF OHIO




born with male anatomy. And the Second District affirmed that decision. 2022-
Ohio-2053 at ¶ 25, 27 (2d Dist.). Thus, like the second separate opinion, I would
affirm the court of appeals’ decision. See separate opinion of Donnelly, J., at ¶ 43.
                                  IV. Conclusion
       {¶ 27} I respectfully disagree with the fourth separate opinion’s proposed
resolution of this case on the unbriefed issue that the matter before us lacks
adversity and thus deprives the Second District Court of Appeals of jurisdiction to
review the probate court’s judgment denying Adelaide’s application to correct the
sex marker on her birth certificate. If we are to resolve this matter on the issue of
adversity, first I would order supplemental briefing on the issue and request that the
attorney general of Ohio and/or Ohio’s state registrar file a merit brief or an amicus
brief, because this issue may deeply implicate the subject-matter jurisdiction of
many lower courts, require an analysis of the language of Article IV of the Ohio
Constitution, and necessarily and directly affect Ohio’s state registrar’s interest in
enforcing R.C. 3705.15(A).
       {¶ 28} But if required to resolve the issue of adversity without supplemental
briefing, which I believe would be a judicial error of a high order, based on my own
research to date, I would hold that adversity is satisfied because Ohio’s state
registrar, as enforcer of the laws set forth in R.C. Ch. 3705 and the rules issued
under that chapter, see R.C. 3705.03(A)(1), has an interest in ensuring that
applications for the correction of birth records are granted or denied in accordance
therewith.
       {¶ 29} As for the merits of this case, I would hold that orders to correct birth
records under R.C. 3705.15 are limited to the correction of errors arising from the
circumstances and facts at the time of birth and R.C. 3705.15 thus does not permit
probate courts to order the correction of the sex marker on a transgender person’s
birth record based on circumstances arising after that person’s birth. I would
therefore affirm the judgment of the Second District affirming the probate court’s


                                         14
                                January Term, 2024




judgment denying Adelaide’s application to correct the sex marker on her birth
certificate.
                               __________________
        DONNELLY, J., joined by STEWART, J., for affirming the court of
appeals’ judgment.
        {¶ 30} This appeal asks us a straightforward question of statutory
interpretation: Does the statute governing applications to correct birth records give
probate courts the authority to correct the sex marker on a transgender person’s
birth certificate? Today, this court answers that question by providing no answer
at all. Four members of the court would reach the merits of the case—albeit coming
to different conclusions on the statutory-interpretation question. Compare separate
opinion of Fischer, J., ¶ 28-29 with separate opinion of Brunner, J., ¶ 92. But we
are prevented from reaching the merits by the commitment of three justices to
resolve this case on an untested and unconvincing procedural theory that
concludes—in effect—that there is no case before us to resolve, because this appeal
lacks adversity. See separate opinion of Deters, J., ¶ 109. This commitment has
led to the court of appeals’ judgment being left undisturbed, thereby depriving the
litigant and amici in this case, the bench and bar, and the people of Ohio a definitive
resolution to the issue before us. I believe that we should reach the merits of this
case and that we should affirm the judgment of the Second District Court of
Appeals. I write separately to explain my thinking.
                 We should reach the merits of Adelaide’s appeal
        {¶ 31} Hailey Emmeline Adelaide, a transgender woman, filed an
application in the Clark County Probate Court to correct the sex marker on her birth
certificate under R.C. 3705.15. The probate court denied Adelaide’s application,
concluding that the statute does not authorize the court to make the correction.
Adelaide appealed to the Second District, which affirmed the probate court’s
judgment. 

 (2d Dist.). In reaching its decision, the appellate


                                        15
                             SUPREME COURT OF OHIO




court concluded that the text of R.C. 3705.15 allows probate courts to correct errors
made at the time a birth was recorded but does not allow amendments to a birth
certificate. Id. at ¶ 17-18. Adelaide appealed to this court, and we accepted
jurisdiction to resolve whether the statute permits probate courts to change the sex
marker on a transgender person’s birth certificate as a correction to a birth record
under R.C. 3705.15. See 

.
       {¶ 32} Rather than answer that question, Justice Deters would have this
court announce a new rule of law: Ohio’s appellate courts lack jurisdiction to decide
appeals that lack adversity. See separate opinion of Deters, J., at ¶ 99-101, 109.
The result advocated by Justice Deters flows from a strained analysis and is in spite
of the reality that no party to this appeal is advocating for this new jurisdictional
rule, that the issue of adversity was first raised in this case at oral argument by a
justice of this court on his own volition based on his reading of a dissenting opinion
from another jurisdiction’s supreme court, and that this court has not received any
briefing on the adversity issue from Adelaide or any other interested party that may
be affected by this potential sea change in the law (such as the probate court or the
State of Ohio).
       {¶ 33} The other separate opinions explain at length why Justice Deters’s
approach is wrongheaded, and there is little more for me to add. I agree with Justice
Fischer that it is a mistake for this court to announce a rule of law that changes the
jurisdiction of Ohio’s appellate courts, ostensibly by interpreting provisions of the
Ohio Constitution, without seeking supplemental briefing on the adversity issue.
See separate opinion of Fischer, J., ¶ 4-7. And while I am reluctant to answer
whether adversity was necessary for Adelaide to invoke the jurisdiction of the court
of appeals without the benefit of proper briefing on that issue, I find that the
arguments set out in the separate opinions of Justice Fischer and Justice Brunner—
that the Ohio Constitution, statutes, and caselaw do not impose that jurisdictional
requirement—to be more convincing than Justice Deters’s reasoning. See 

 at


                                         16
                                January Term, 2024




¶ 8-14; separate opinion of Brunner, J., ¶ 73-91.        But even if adversity is a
requirement for appellate jurisdiction in Ohio, I believe that the competing interests
set out in Justice Fischer’s separate opinion show that any such requirement has
been satisfied. See separate opinion of Fischer, J., at ¶ 15-22.
       {¶ 34} While resolving the issue of adversity likely warrants supplemental
briefing, I believe the opportunity to call for that briefing has passed. This case has
been under consideration for over a year, and Adelaide deserves a response to the
questions she raised in her appeal. We have accepted jurisdiction over another case
and stayed consideration of that case pending the resolution of this appeal. See In
re B.C.A., 

. The bench, bar, and citizens of Ohio—to say nothing
of Adelaide herself—are waiting for this court to decide whether R.C. 3705.15
allows probate courts to enter the sort of correction to a birth record that Adelaide
requests. I would answer that question and conclude that the statute does not permit
the correction.
We should affirm the Second District’s judgment because R.C. 3705.15 does not
permit corrections to birth records arising from changes in fact or circumstance
                          that occur after a person’s birth
       {¶ 35} In her propositions of law, Adelaide asks us to interpret the language
of R.C. 3705.15—the statute under which she asked the probate court to correct the
sex marker on her birth certificate. The interpretation of the statutory language is,
in many senses, the beginning and end of this case. Probate courts possess 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. Thus, for the probate court to provide Adelaide the relief she requests—
the correction of the sex marker on her birth certificate—there must be a basis for
that authority within the relevant statute. Adelaide argues that this court should
broadly interpret the language in R.C. 3705.15 and conclude that the statute grants




                                        17
                                   SUPREME COURT OF OHIO




the probate court the necessary authority to act.                   But several considerations
undermine the interpretation Adelaide asks us to adopt.1
         {¶ 36} When undertaking statutory interpretation, “our paramount concern
is the General Assembly’s intent in enacting the statute.” Stiner v. Amazon.com,
Inc., 

, citing State ex rel. United States Steel Corp. v. Zaleski,

, ¶ 12. We perceive that intent by reading the statutory language
in context and according to the rules of grammar and common usage. State ex rel.
Steele v. Morrissey, 

, ¶ 21.
         {¶ 37} The relevant statute here does not expressly set out the probate
court’s authority to correct birth records. Rather, the grant of authority must be
gleaned from the text that sets out the way in which a birth record may be corrected.
R.C. 3705.15 permits a person born in Ohio and “whose registration of birth . . .
has not been properly and accurately recorded” to “file an application for . . .
correction of the birth record in the probate court” of the county of that person’s
birth or residence or of the county that the person’s mother resided in at the time of
the person’s birth. The statute then explains what must be set forth in and included
with the application and how the probate court is to consider and rule on the
application, see R.C. 3705.15(A)—provisions that do not implicate the
propositions of law Adelaide has raised here. Our focus, then, is on the statute’s
introductory text. That text provides that an applicant may file an application to
“correct” registration information in a birth record that “has not been properly and


1. Justice Brunner’s separate opinion asserts that “this case should not be characterized as
concerning whether probate courts have the authority under R.C. 3705.15 to correct a sex marker
on the birth record of a person who is transgender.” Separate opinion of Brunner, J., at ¶ 68. Except
that is exactly what this case is about. The probate court considered Adelaide’s application to correct
the sex marker on her birth certificate and found on the basis of the evidence provided, including
Adelaide’s testimony, that there was no correction for it to make. And because the statute permits
only corrections, the probate court concluded it lacked jurisdiction to make the requested change.
Whether the probate court possesses the authority to grant the relief that Adelaide seeks was the
question before the court of appeals, see 

 (2d Dist.). It is also the question
before this court. And it is the question that this separate opinion seeks to answer.


                                                  18
                                January Term, 2024




accurately recorded.” R.C. 3705.15. Adelaide argues that this language may be
read broadly to encompass changes or amendments to information contained in a
birth record, irrespective of whether that information is found to be in error. And
that reading would be persuasive if the statute simply permitted the “correction” of
birth records, without any further language. But the reading that Adelaide proposes
ignores the statutory text as a whole. When the relevant language is read in its
entirety, the application to the probate court must be to “correct” information that
is not “properly and accurately recorded” in a birth record. 

 While recourse to
a dictionary might be useful here, it isn’t really necessary. The average English
speaker would understand this statutory text as permitting persons to file
applications seeking to correct information in a birth record that is improperly and
inaccurately recorded. The statute’s language is concerned with corrections that
are meant to ensure the accuracy of the birth record. Thus, it is necessary to
understand what it means for the information on the birth record to be properly and
accurately recorded.
        {¶ 38} To answer this question, it helps to look more broadly at what the
Revised Code and other sources tell us about birth records and the information
contained in those records. Broadly speaking, “[a] birth certificate is a document
issued by a government that records the birth of a child for vital statistics, tax,
military, and census purposes.” (Emphasis added.) American Bar Association,
Birth   Certificates   (Nov.   20,   2018),    https://www.americanbar.org/groups
/public_education/publications/teaching-legal-docs/birth-certificates/     (accessed
Sept. 11, 2024) [https://perma.cc/43RW-9DGT]. In 1908, Ohio began requiring
the prompt registration of births through the filing of certificates with the local
registrar of the district in which the birth occurred; the law enacted by the General
Assembly directed physicians and midwives to file a certificate of birth that
included, among other information, the child’s name, place of birth, sex, and
legitimacy. S.B. No. 467, 99 Ohio Laws 296, 301-302; Thompson, First Annual


                                       19
                             SUPREME COURT OF OHIO




Report of the Bureau of Vital Statistics 39, 42-43 (1909), available at
https://hdl.handle.net/2027/uiug.30112032545243 (accessed Sept. 17, 2024).
Similar provisions are now found in R.C. Ch. 3705, which establishes the State’s
system of vital statistics. See R.C. 3705.02. Under R.C. 3705.09(A), a birth
certificate for each live birth in Ohio must be filed in the registration district in
which the birth occurred within ten calendar days after the birth. Except for
requiring that all birth certificates “include a statement setting forth the names of
the child’s parents,” R.C. 3705.08(B), the Revised Code does not set out the
requirements of information that must be included on a birth certificate—delegating
that power instead to the director of the Ohio Department of Health, see
R.C. 3705.02 and 3705.08(A). And at the time of this separate opinion’s drafting,
the designated “certificate of live birth” form that the director has prescribed for
use requires the child’s name, time of birth, sex, date of birth, location of birth,
county of birth, certain information regarding the parents, a certification from the
attendant regarding the time, place, and date of birth, and the name of the facility
where the birth took place to be included on the certificate. Adm.Code 3701-5-
02(A)(1) and Appendix A.
       {¶ 39} Neither the Revised Code nor the administrative rules state this
directly, but both appear concerned with the prompt and accurate recording of the
circumstances surrounding births as they are known at that time. For example, R.C.
3705.09(A) requires a birth certificate to be filed within ten days after the birth and
requires the certificate to be registered if it has been completed and filed in
accordance with R.C. 3705.09, making the information to be provided on the
“certificate of live birth” form subject to what is known and available at the time of
the birth being registered. In short, the birth certificate provides a snapshot of an
event, the description of a moment, as it was then understood.
       {¶ 40} Because the birth registration is focused on recording the event and
the circumstances of a person’s birth, it follows that the provisions of R.C. 3705.15


                                          20
                                January Term, 2024




are concerned with correcting information on the birth record that was not correctly
recorded at the time of the birth. Put more simply, R.C. 3705.15 is not concerned
with corrections arising from changes in fact or circumstance that occur after the
birth. Rather, the statute seeks to ensure the accurate registration of birth records
by providing a mechanism to replace improperly and inaccurately recorded
information about the birth with the correct facts or information as they were known
when the person was born.
       {¶ 41} This understanding of the statute is bolstered by the broader statutory
scheme in which R.C. 3705.15 is found. Other statutes permit the modification of
birth records to reflect reality as it exists after a person’s birth. For example,
R.C. 3705.12 permits the issuance of a new birth record following the adoption of
a child that includes “the child’s adopted name and the names of and data
concerning the adoptive parents.” R.C. 3705.13 allows for the change of birth
records to reflect a legal name change. Accepting for the sake of argument
Adelaide’s assertion that the language of R.C. 3705.15 is not ambiguous, it is
inappropriate to use the in pari materia rule of statutory construction.          See
Hulsmeyer v. Hospice of Southwest Ohio, Inc., 

 (courts may
read related statutes in pari materia and construe them together when determining
the meaning of ambiguous statutory language). But we do assume that the General
Assembly is “aware of other statutory provisions concerning the subject matter of
the enactment even if they are found in separate sections of the Code.” Meeks v.
Papadopulos, 

 (1980). That the General Assembly has
created mechanisms to change birth records to correspond to facts occurring after
the birth has occurred gives rise to an understanding that the legislature did not
intend for the correction procedure set out in R.C. 3705.15 to cover those situations.
Thus, I believe the context of R.C. 3705.15 within the broader statutory scheme
supports interpreting the statute’s text in a limited way.




                                        21
                                   SUPREME COURT OF OHIO




         {¶ 42} Finally, the history of the statutory scheme gives this court some clue
as to the purpose underpinning R.C. 3705.15, which in turn may inform our
understanding.2 While the text of a statute is a court’s primary source when
discerning a provision’s meaning, it should be remembered “that statutes always
have some purpose or object to accomplish, whose sympathetic and imaginative
discovery is the surest guide to their meaning.” Cabell v. Markham, 

 (2d Cir. 1945). In Ohio, a statewide law went into effect in 1867, requiring
each county’s probate court to record births that occurred in that county. Ohio
History       Connection,         Birth      Records,        https://ohiohistory.libguides.com
/vital/birthrecords (accessed Sept. 12, 2024) [https://perma.cc/YWB6-54DZ].
Then, as discussed above, the registration of births with the Bureau of Vital
Statistics through the filing of birth certificates became part of the Revised Statutes
of Ohio in 1908. Both the text of the act enacted in 1908 and the contemporary
commentary show that the General Assembly was concerned with the accurate
recording of births in the State. S.B. No. 467, 99 Ohio Laws at 301-302; Thompson
at 42-43, 49. Given the history and purpose of this statutory scheme, it does not
follow that the scheme was intended to provide the relief Adelaide requests. The
legislature sought to create a system for the accurate recording of birth records, so
it makes sense that the statutory scheme promulgated by the General Assembly
includes a provision for correcting only those records that are inaccurate. Thus,


2. Justice Brunner’s separate opinion opines that using the statute’s history as a method of
understanding its language and text does not help resolve the questions Adelaide has presented. And
in support of its own position, that separate opinion relies on the analysis used in a federal case.
Separate opinion of Brunner, J., at ¶ 69, citing Ray v. McCloud, 

, 938 (S.D.Ohio
2022). The decisions of federal district courts are not binding on this court and provide only
persuasive authority. See State v. Burnett, 

. In Ray, the federal district court
was not engaging in statutory interpretation, as the parties in this case ask us to do. Rather, the
discussion in Ray cited in Justice Brunner’s separate opinion was addressing whether the State’s
interest in historical accuracy was a sufficient interest for a policy of the Ohio Department of Health
to survive intermediate scrutiny under a federal equal-protection analysis. 

. That
has nothing to do with this court’s independent duty and authority to interpret Ohio’s statutory law.
Thus, Ray is of limited persuasive value here.


                                                  22
                                      January Term, 2024




one may imagine the General Assembly as understanding the provision now
codified as R.C. 3705.15 as allowing for correction of clerical errors or even
substantive corrections like the addition of a father’s name after the birth. But those
corrections relate to the circumstances of the birth as understood to exist at the time
the birth occurred and ensure the accuracy of the recorded information. What is
more, our understanding of gender and sexuality has changed considerably since
the beginning of this century, let alone the beginning of the previous one. And
while I do not question the lived experience of those persons who, like Adelaide,
find themselves born in a body whose biological sex does not correspond to their
understanding of their gender identity, I do not believe that the purpose of the
statutory scheme at issue here was intended to cover the relief Adelaide requests.
         {¶ 43} In sum, the text, structure, history, and purpose of R.C. 3705.15 and
its companion statutes lead me to conclude that the statutory scheme does not
permit the correction of a sex marker on the birth certificate of a transgender person.
This, in turn, means that there is not a statutory grant of authority to probate courts
to hear applications to correct birth certificates on this basis. The Second District
reached this conclusion and affirmed the probate court’s denial of Adelaide’s
application to correct the sex marker on her birth certificate. 

 (2d Dist.). Thus, I would affirm the court of appeals’ decision.3
            The General Assembly should address this gap in Ohio’s law
         {¶ 44} It is an oft-repeated refrain in my writing that the law is the law, and
that jurists must apply the law even if that application leads to odious or unjust
results. See State v. Bortree, 

; State ex rel. Mobarak v.
Brown, 

 (Donnelly, J., concurring in judgment only). And that
bears repeating here. I take no joy in reaching the conclusion that R.C. 3705.15


3. I acknowledge that this reading of the statute might carry constitutional implications that may
require further adjudication. But the constitutionality of the statute is not squarely before the court
in this case and, as a result, is outside the scope of this separate opinion.


                                               23
                              SUPREME COURT OF OHIO




does not permit the probate court to correct the sex marker on Adelaide’s birth
certificate to reflect who she knows herself to be. Transgender persons are our
fellow citizens, they are our neighbors and friends, and they contribute to our
communities and this State. They are entitled to respect, equal treatment, and the
ability to live their lives as they see fit. However, as it stands now, the statutory
scheme concerning the correction of birth records could be interpreted as denying
transgender persons these rights.
       {¶ 45} The General Assembly has enacted other statutes permitting the
amendment of a birth certificate to incorporate realities that were not present or
obvious at the time of a person’s birth—like adoption in R.C. 3705.12. It should
enact a statute creating a mechanism by which transgender persons born in Ohio
may seek a change of the sex marker on their birth certificates to show, officially,
who they know themselves to be. In my mind, this is not simply a question of
policy but a matter of justice.
                                      Conclusion
       {¶ 46} I am unconvinced by the analysis in Justice Deters’s separate
opinion that would result in this court reversing the court of appeals’ judgment on
procedural grounds. And my conclusion on the substantive statutory-interpretation
question is different than that reached by Justice Brunner. In sum, I would reach
the merits of Adelaide’s appeal and affirm the judgment of the Second District
Court of Appeals because R.C. 3705.15 does not give probate courts the authority
to correct the sex marker on a transgender person’s birth certificate.
                                  __________________
       BRUNNER, J., for reversing the court of appeals’ judgment and
remanding the cause to the probate court.
       {¶ 47} I am disappointed in the other separate opinions in this case
concluding that appellant, Hailey Emmeline Adelaide, either has no right to apply
for a correction of her birth record under R.C. 3705.15 or no right to appeal the


                                          24
                                 January Term, 2024




probate court’s judgment denying her application to correct her birth record. This
case can and should be easily resolved by looking at the plain language of R.C.
3705.15, which confers authority on probate courts to correct a sex marker on the
birth record of any person. R.C. 3705.15(A) (“Whoever claims to have been born
in this state, and whose registration of birth . . . has not been properly and accurately
recorded, may file an application for . . . correction of the birth record in the probate
court . . . .”).
         {¶ 48} One separate opinion, held by three members of the court, concludes
that Adelaide’s appeal requires an adverse party and must be dismissed because it
lacks such adversity. The separate opinion advancing this theory, one that has not
been briefed by Adelaide or the 26 amici that have appeared this case, claims that
the requirement for adversity has “long been understood” and therefore Adelaide’s
appeal should be dismissed by the Second District Court of Appeals. Separate
opinion of Deters, J., ¶ 100, 109. Another separate opinion would seek briefing on
the issue of adversity, in a show of commendable caution, see separate opinion of
Fischer, J., ¶ 4-7, but then concludes that the tepidly erroneous decisions issued by
the lower courts in this matter should be affirmed, id. at ¶ 23-26. And yet another
separate opinion would dispense with any further briefing and affirm the decisions
below. Separate opinion of Donnelly, J., ¶ 34. I respectfully disagree with each of
these approaches.
         {¶ 49} Viewing the separate opinion in favor of vacating the court of
appeals’ decision based on the lack of adversity, the question remains: If this theory
of adversity is so well established, then why is the separate opinion advancing it
relying on cherry-picked statements of law from centuries past that have no bearing
on the type of application that Adelaide filed in a county probate court in Ohio?
The separate opinion cites, for example, William Blackstone’s 1768 Commentaries
on the Laws of England as authority for what constitutes a judicial proceeding,
separate opinion of Deters, J., at ¶ 100, but it ignores Blackstone’s recognition of


                                         25
                             SUPREME COURT OF OHIO




ecclesiastical courts, which had “voluntary” and not “contentious” jurisdiction over
matters (emphasis in original), 3 William Blackstone, Commentaries on the Laws
of England 66, 98 (1768).
        {¶ 50} And if adversity is so necessary to judicial power in Ohio, then the
separate opinion advancing an adversity theory should find support for excluding
appeals such as Adelaide’s from our jurisdiction not under the United States
Constitution, but under Article IV of Ohio’s Constitution establishing the state’s
judiciary. The separate opinion in question explains that Article III, Section 2 of
the United States Constitution reflects the need for adversity, because that provision
uses the word “controversies.” Separate opinion of Deters, J., at ¶ 100. But the
Ohio Constitution does not include this language, and Ohio’s courts are not bound
by principles derived from the federal Article III, see State ex rel. Ohio Academy
of Trial Lawyers v. Sheward, 

 (“federal decisions [applying
Article III] are not binding upon this court”). Even if federal Article III principles
were relevant here, the United States Supreme Court has explained that “adversarial
presentation” is a “prudential concern[],” one that may actually demand the court’s
attention rather than dismissal of an action, United States v. Windsor, 

 (2013) (“In these unusual and urgent circumstances, the very term ‘prudential’
counsels that it is a proper exercise of the Court’s responsibility to take
jurisdiction.”).
        {¶ 51} We have decided matters on a lack of adversity theory in the past.
See, e.g., In re Jane Doe 1, 

 (1991) (affirming a judgment
dismissing an application for judicial bypass); In re Bonfield, 

 (finding a juvenile court had jurisdiction to consider a shared-parenting
agreement between a same-sex couple); In re Bicknell, 

(reversing a probate court’s denial of two name-change applications). Try as it may
to discuss two of these cases in the context of this questionable theory, see separate
opinion of Deters, J., at ¶ 105, the separate opinion advancing the adversity theory


                                         26
                                    January Term, 2024




ignores the fact that no other party or interest was necessary to resolve the legal
questions presented in those cases.
        {¶ 52} Instead of reaching the merits of the question whether R.C. 3705.15
provides the probate court with the authority to change the sex4 marker on
Adelaide’s birth certificate, the adversity-theorized separate opinion asks a question
not posed here, one which was first devised by a justice of this court during oral
argument in this matter, spotlighting to one of likely first impression in this court.
The other two separate opinions point out that it is improper for this court to proceed
under Justice Deters’s separate opinion’s adversity theory without any briefing,
argument, or illustrative debate that could help shape the contours of arguments
according to this only-one-party rejection theory. See separate opinion of Fischer,
J., at ¶ 4-7; separate opinion of Donnelly, J., ¶ 33; see also 

.
        {¶ 53} Today’s multiplicity of separate opinions in a single case with no
majority opinion and with a separate opinion held by three members of this court
that is based on a theory that was not raised in the briefs leaves a chasm of
unanswered questions for Ohioans seeking review of important decisions obtained
through noncontentious proceedings. First and foremost, this court unfairly raises
but fails to give Adelaide the opportunity to brief the theory of adversity in
determining whether probate courts have the authority to grant the relief that
Adeliade seeks. Thus, we have raised but not answered these questions: Do
applicants in noncontentious proceedings have a right to appellate review at all? If
there is no right to appeal a noncontentious final order, is extraordinary relief
available? And more importantly, may the probate courts of this State grant or deny


4. In accordance with Sup.R. 51, this court publishes standard forms for uniform use in Ohio’s
probate courts. Adelaide used one of these forms—Probate Form 30.0—to apply to correct her birth
record.
         Probate Form 30.0 includes ten boxes that correspond to the information that may be
corrected on a birth record. While R.C. 3705.15 does not specifically refer to “gender” or “sex,”
Probate Form 30.0 includes box No. 4, which uses the term “[s]ex.” Therefore, that term is used
throughout this opinion.


                                            27
                             SUPREME COURT OF OHIO




an application to correct a sex marker on a birth record when the applicant attests
that the marker is incorrect? Will this court allow the philosophies of individual
judges from county to county determine the scope of Ohio’s birth-record-correction
statute? Persons like Adelaide are the casualties of this fractured decision we issue
today. Though it is this court’s duty to state what the law is, we have failed in that
duty and deny Adelaide and others who similarly petition the government clarity
on how to apply R.C. 3705.15 to such petitions.
       {¶ 54} The heart of the matter is that the legal issues presented in Adelaide’s
appeal can and should be decided. Moreover, resolution of these issues weigh in
her favor. Courts are not permitted to read an exception into a generally applicable
statute, no matter how the facts of the case are perceived. If the General Assembly
chose not to include an exception in R.C. 3705.15 for correcting a sex marker on a
birth certificate, courts may not create one. See Bostock v. Clayton Cty., Georgia,

 (2020). This is especially so when the judicially created
exception would discriminate against persons who are transgender, a quasi-suspect
class of persons that is entitled to heightened protection under the Equal Protection
Clause of the Fourteenth Amendment to the United States Constitution, see Ray v.
McCloud, 

, 937 (S.D.Ohio 2020).
       {¶ 55} I therefore offer this separate opinion favoring reversing the court of
appeals’ judgment and remanding Adelaide’s case to the probate court.
                                  I. Background
       {¶ 56} In October 2021, in accordance with R.C. 3705.15, Adelaide filed
two applications for correction of her birth record using Probate Form 30.0 in the
Clark County Probate Court. Adelaide sought to correct the items in box No. 1 of
the form, concerning “Full Name of Child,” and box No. 4, concerning “Sex.”
       {¶ 57} Shortly before her applications were filed, in August 2021, this court
modified Probate From 30.0, see 

 (administrative action indicating
that amendments to Probate Form 30.0 were adopted August 3, 2021). The


                                         28
                                January Term, 2024




modification of this form followed the decision in Ray, 

. In that
case, the United States District Court for the Southern District of Ohio explained:


               The Ohio Revised Code permits a person to correct a birth
       record that, among other things, “has not been properly or accurately
       recorded.” Ohio Rev. Code § 3705.15. No portion of the Ohio
       Revised Code prohibits using § 3705.15 to change the sex marker
       on a birth certificate. Other portions of Ohio’s statutory scheme
       governing vital statistics permits changes to a birth certificate to
       reflect adoptions and legal name changes. See Ohio Rev. Code §§
       3705.12, 3705.13.
               Indeed, prior to 2016, [Ohio officials] permitted transgender
       individuals born in Ohio to change the sex marker on their birth
       certificates, if the transgender individuals obtained a court order,
       paid a processing fee, and completed an [Ohio Department of Health
       (“ODH”)]-provided form. . . . At least ten transgender people born
       in Ohio successfully obtained sex-corrected birth certificates prior
       to 2016.
               Sometime in 2015, after consultation with ODH in-house
       counsel and the Ohio Governor’s office, ODH “re-reviewed” its
       birth certificate policy . . . and decided to no longer permit changes
       to the sex marker on Ohio birth certificates when the basis for that
       change was that the person was transgender. . . . Ohio continues to
       permit other changes to birth certificates (such as for adoption and
       legal name) as well as alterations to the sex field if the basis for the
       request is a mistake or where the physician observed atypical
       genitalia and records the sex as “U” for “undetermined” at birth.




                                       29
                             SUPREME COURT OF OHIO




(Footnote omitted.)       

.      The federal court invalidated Ohio’s
administrative policy of denying requests of transgender persons to correct the sex
markers on their birth certificates, finding no rational basis for the discriminatory
policy. Id. at 939-940.
       {¶ 58} Using Ohio’s statutory scheme, specifically R.C. 3705.15, Adelaide
submitted her application for correction of her birth record, which included her own
affidavit and an affidavit and letter from her mental-health-care provider. The letter
attested to Adelaide’s female sexual identity “both psychologically and in lifestyle
gender expression.” The probate court conducted a hearing and granted Adelaide’s
request to correct her name, but regarding Adelaide’s request to change her sex
marker, the court permitted Adelaide’s counsel to provide additional briefing on
whether the sex marker could be changed.
       {¶ 59} In its order denying Adelaide’s application to correct the sex marker,
the probate court framed the issue as whether it had the statutory authority to grant
Adelaide’s application to change her sex marker. The probate court noted that other
probate courts in the State had addressed the issue in different ways. The probate
court acknowledged the conclusion in Ray that nothing in the Ohio Revised Code
prohibits Ohio’s probate courts from using R.C. 3705.15 to correct a sex marker.
But the probate court nonetheless reasoned that the court in Ray did not point to
any authority of Ohio’s probate courts to grant the relief Adelaide requested. The
probate court concluded that Ray was about the ODH’s blanket prohibition on
transgender persons’ using R.C. 3705.15 to change their sex markers, and it found
the construction of R.C. 3705.15—not an ODH policy—to be the central issue. The
probate court further found that because the initial recording of Adelaide’s sex
marker as male aligned with the fact that she was born with biologically male
anatomy and because her current physical anatomy supported the determination of
“male” as the sex marker on her birth certificate, there was nothing to be
“corrected” regarding Adelaide’s birth record under R.C. 3705.15.


                                         30
                                 January Term, 2024




       {¶ 60} Adelaide appealed the probate court’s judgment to the Second
District, arguing that the probate court erred by giving no persuasive weight to the
constitutional rulings of the court in Ray. She also argued that based on the record
and the plain language of R.C. 3705.15, she was entitled to a corrected sex marker
on her birth record. The Second District conducted a de novo review of the question
of law presented. 

 (2d Dist.). The court of appeals did not
question its jurisdiction or ask for any supplemental briefing concerning whether it
could hear the appeal.
       {¶ 61} The court of appeals concluded that R.C. 3705.15 permits only
“corrections” of birth records that were not “‘properly and accurately recorded’” at
the time of birth. Id. at ¶ 16-17, quoting R.C. 3705.15. It found that Adelaide was
actually requesting an “amendment” to her birth record, id. at ¶ 17, 27, and that the
legislature did not expressly authorize the probate court “to modify the birth
certificate to correlate with a later-in-life change,” id. at ¶ 19. The court of appeals
affirmed the probate court’s judgment, finding that all evidence suggested that
Adelaide was born with male genitalia and that the gender identification made at
the time of her birth was correctly recorded. Id. at ¶ 25.
       {¶ 62} On August 1, 2022, Adelaide appealed to this court, and on October
11, 2022, we accepted the appeal for discretionary review. See 

.
Adelaide filed her merit brief in December 2022. Twenty-six amici appeared in
this case, and three separate amici briefs in support of Adelaide’s position were
filed. Oral argument was held in April 2023, and counsel for Adelaide appeared
and argued her position. Now, after this case has been pending before this court
for over two years, this court is issuing a decision that raises gratuitous questions
and fails to provide answers.
II. R.C. 3705.15 authorizes the probate court to grant Adelaide’s application
       {¶ 63} In this case, we are asked to perform the routine task of interpreting
a statute. That statute, R.C. 3705.15, permits “[w]hoever claims to have been born


                                        31
                              SUPREME COURT OF OHIO




in this state, and whose registration of birth . . . has not been properly and accurately
recorded, [to] file an application for . . . correction of the birth record.” The
applicant, whoever that may be, must state and verify “all of the available facts
required on a birth record and the reasons for making the application.” R.C.
3705.15(A). If the probate court finds “that the facts are as stated,” then it “shall
make an order correcting the birth record.” (Emphasis added.) 

        {¶ 64} Some probate courts and appellate courts seem to have been
perplexed about processing applications filed by persons who are transgender and
who seek to correct the sex marker on their birth certificates under R.C. 3705.15.
Courts throughout the State have spent a great deal of time and effort debating the
definition of the term “correction” in the statute. See In re B.C.A., 

,
¶ 13 (11th Dist.); In re Carpenter, 

 (5th Dist.). The separate
opinion supported by two members of the court suggests that the General Assembly
should enact a statute to afford Adelaide the relief that she seeks, see separate
opinion of Donnelly, J., at ¶ 45, and it raises a concern that under the current version
of R.C. 3705.15, a probate court cannot “correct” an applicant’s birth certificate
when the applicant’s assigned gender at birth cannot be shown to have been
inaccurately recorded at the time the information on the birth record was initially
filed, just after birth, see id. at ¶ 40. Parallel to this sentiment, this same opinion
and another separate opinion find that the language in R.C. 3705.15 does not permit
the correction of a birth record when the cause for the correction is a change in fact
or circumstance arising after the applicant’s birth. Separate opinion of Fischer, J.,
at ¶ 24, citing separate opinion of Donnelly, J., at ¶ 40. Problems exist when the
statute is read either way.
        {¶ 65} First, framing the issue as whether R.C. 3705.15 may be used by
persons who are transgender to apply to correct the sex markers on their birth
certificates has the effect of discriminating without a rational basis between
cisgender and transgender persons. R.C. 3705.15 does not distinguish between


                                           32
                                January Term, 2024




cisgender and transgender persons. Prohibiting only persons who are transgender
from using the statute to correct the sex marker on their birth certificates is
unconstitutional. See Ray, 507 F.Supp.3d at 934-940. Thus, if R.C. 3705.15 allows
anyone to apply to correct a sex marker on a birth certificate, then by its very terms
it allows everyone to apply to correct a sex marker under the same terms. See Bibb
v. State Med. Bd., 

, ¶ 13 (Kennedy, C.J., concurring in part and
dissenting in part), quoting State v. Wells, 

 (1945) (“‘“Any
person” means every person’” [emphasis added in Wells]).
       {¶ 66} Second, the statute vests probate-court judges with the authority to
determine whether an applicant’s birth certificate was properly and accurately
recorded and whether the facts required on the birth record are as stated. See R.C.
3705.15(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 probate judge, if satisfied that the
facts are as stated, shall make an order correcting the birth record . . . .”). This
authority does not change when the person filing the application states that they are
transgender.
       {¶ 67} Although two separate opinions of this court view the purpose of
birth records as maintaining a record of information from the time of a person’s
birth, see separate opinion of Fischer, J., at ¶ 25; separate opinion of Donnelly, J.,
at ¶ 40, there are no temporal constraints in a plain reading of R.C. 3705.15. Birth
records often communicate information about events that occur after a person’s
birth. See R.C. 3705.12 (issuance of new birth record to reflect new information
about a child and the adoptive parents after an adoption); R.C. 3705.13 (issuance
of new birth certificate after a legal name change); see also Probate Form 30.0
(identifying ten boxes of data that may be “corrected or added” on a birth record).
The separate opinion of Fischer, J., at ¶ 25, suggests that if R.C. 3705.15 allows for
modifications of birth records based on circumstances and facts that arise after a


                                       33
                             SUPREME COURT OF OHIO




person’s birth, then other statutes that allow for changes to birth records due to
later-in-life events would be made “irrelevant.” And the separate opinion of
Donnelly, J., at ¶ 41, finds the “broader statutory scheme” supports limiting the use
of R.C. 3705.15 to correcting only errors made in the recording of information at
the time of a person’s birth. But the statutes referenced in these separate opinions—
R.C. 3705.12, R.C. 3705.13, R.C. 3111.13(A) and (B), and R.C. 3111.18—provide
a process for updating a birth record following a specific type of legal proceeding
(such as a legal name change or an adoption). R.C. 3705.15 is a catchall provision
that allows for general corrections of the “facts required on a birth record.” R.C.
3705.15(A). And just like the other statutes referenced in these separate opinions,
R.C. 3705.15(D)(1) provides a similar process for updating a birth record after the
correction is ordered. Reading the statutes in this manner does not render them
incompatible. Whether a birth record has been properly and accurately recorded
and whether the facts required on the birth record are as stated by the applicant are
factual determinations that are subject to abuse-of-discretion review by appellate
courts. See In re Application for Correction of Birth Record of Lopez, 2004-Ohio-
7305, ¶ 29 (5th Dist.). That there are numerous ways in which a person’s assigned
gender at birth may not be properly and accurately recorded on that person’s birth
record is demonstrated by academic discussion on the subject:


       In cases in which an infant’s sex is not readily apparent to clinicians,
       assignments are made based on factors including chromosomes,
       hormones, gonads, and genitalia, considering how the child’s body
       will develop at puberty, their future fertility, and what sorts of
       “somatic traits and configurations clinicians believe are necessary
       (or even allowed) to be male or female.”




                                         34
                                January Term, 2024




Jessica A. Clarke, Sex Assigned at Birth, 122 Colum.L.Rev. 1821, 1835-1836
(2022), quoting Katrina Karkazis, Fixing Sex: Intersex, Medical Authority, and
Lived Experience 94 (2008). Even if a birth record is deemed to have been properly
and accurately recorded at the time of birth, R.C. 3705.15 does not limit the ways
in which a probate court may find that at the time an application for correction of a
birth record is filed, the birth record has not been properly and accurately recorded.
       {¶ 68} To be clear, this case should not be characterized as concerning
whether probate courts have the authority under R.C. 3705.15 to correct a sex
marker on the birth record of a person who is transgender, because the plain
language of the statute confers authority on probate courts to correct a sex marker,
period. See Bostock, 

 (“when Congress chooses not to include any
exceptions to a broad rule, courts apply the broad rule”). Absent language in R.C.
3705.15 or another law that would prohibit the probate court from granting
Adelaide’s application, no court may read such an exception into the statute, nor
should it. See State v. Smith, 

, ¶ 27 (“it is beyond our authority to
read words into a statute that were not put there by the legislature”). This is
especially so when such a judicially created exception would place the
constitutionality of the statute in jeopardy. See R.C. 1.47(A) (it is presumed that
“[c]ompliance with the constitutions of the state and of the United States is
intended” in enacting a statute); see also George v. Mann, 29 Ohio N.P.(N.S.) 371,
374 (C.P. 1932) (“It is an elementary principle of statutory construction that where
two constructions may be given to a statute, one of which will render the statute
unconstitutional and the other constitutional, that construction, if it can reasonably
be made, will be given to the statute which will render the same constitutional.”).
       {¶ 69} The historical and statutory context of recording birth records in
Ohio does not support selectively applying R.C. 3705.15, as is suggested in other
separate opinions in this case, see separate opinion of Fischer, J., at ¶ 25; separate
opinion of Donnelly, J., at ¶ 38. Moreover, the historical context shows that the


                                       35
                             SUPREME COURT OF OHIO




contents of birth certificates was not prescribed by the legislature but, rather,
delegated to the Ohio Department of Health. See separate opinion of Donnelly, J.,
at ¶ 38. This is why in Ray, the plaintiffs challenged the policy implemented by the
department that prevented changes to the sex marker on the birth certificates of
persons who are transgender but did not challenge R.C. 3705.15 directly, see Ray,
507 F.Supp.3d at 929. Even so, State officials framed the issue as an interpretation
of R.C. 3705.15, 

, and argued that the State of Ohio had a
substantial interest in the accuracy of Ohio’s birth records, id. at 938. The district-
court judge in Ray found this argument to be undermined by Ohio law that permits
the changing of a parent’s name on a birth certificate to reflect an adoption, and
State officials could not explain why that kind of change did not affect the accuracy
of the birth record but changing the sex marker did. Id. The Ray court found that


       the idea that the State of Ohio has a true interest in maintaining
       historically accurate records is undermined by the fact that Ohio
       permitted transgender people to change the sex marker on their birth
       certificates until 2016. [State officials] have offered no evidence to
       explain why “historical accuracy” has only recently become a State
       interest, or why it was necessary to change its Policy to further that
       interest.


Id.
       {¶ 70} Following the Ray decision, the Ohio Department of Health updated
its website to explain its compliance with the federal court’s order. The website
now reads, “In order to comply with the court decision in Ray v. McCloud, Case #
2:18-cv-00272, the Ohio Department of Health will make changes to the sex marker
on a birth certificate with a probate court order.” Ohio Department of Health,
Changing or Correcting a Birth Record, https://odh.ohio.gov/know-our-


                                          36
                                January Term, 2024




programs/vital-statistics/changing-correcting-birth-record (accessed Oct. 7, 2024)
[https://perma.cc/X5AG-2JMQ].        Additionally, this court adopted a uniform
application—Probate Form 30.0—that could be used in probate courts throughout
the State to obtain a court order to correct a sex marker on a birth record. See 2021-
Ohio-2800. Similar to what the federal court in Ray found regarding the Ohio
Department of Health’s actions in changing course without explanation, the
separate opinions of my colleagues today run counter to this court’s prior
implementation of Ray in its supervisory role of the courts of this State—allowing
any person to apply for a correction of the sex marker on the person’s birth record
with a uniform application for a probate-court order that, once granted, can be
presented to the department for a new birth record to be prepared using the correct
information in accordance with R.C. 3705.15(D)(1).
       {¶ 71} Assuming arguendo that the purpose of R.C. 3705.15 is to preserve
a “snapshot” of the information at the time of birth, separate opinion of Donnelly,
J., at ¶ 39, the federal court in Ray explained that that was not always true
historically, 

. This court should not parse or prescribe what is the purpose
or even how to achieve the purpose of R.C. 3705.15. The General Assembly’s
words are its words, and the plain meaning of them in R.C. 3705.15, without
equivocation, is that birth certificates may be corrected when they are not properly
and accurately recorded.
       {¶ 72} The probate court was given the authority under R.C. 3705.15(A) to
make an order correcting Adelaide’s birth record, which includes correcting the sex
marker on her birth certificate. Because the probate court concluded that it does
not have the authority, I would remand the matter to the probate court, ordering it
to perform its duties under R.C. 3705.15 and process Adelaide’s application.




                                       37
                              SUPREME COURT OF OHIO




     III. Appellate courts should not question their ability to adjudicate
                              noncontentious appeals
              A. Adversity is not a jurisdictional requirement in Ohio
       {¶ 73} Because the separate opinion advancing an adversity theory does so
without the benefit of briefing, I find it important to explain the problems and
dangers of entertaining or even implementing such a theory.
       {¶ 74} The separate opinion advancing an adversity theory does not explain
what it means when it says that the appellate court lacked “the judicial power” over
Adelaide’s appeal. Separate opinion of Deters, J., at ¶ 94. The term “judicial
power” is generally used in referring to a court’s exercise of its authority. See Ohio
Const., art. IV, § 1 (“The judicial power of the state is vested in a supreme court,
courts of appeals, courts of common pleas and divisions thereof, and such other
courts inferior to the supreme court as may from time to time be established by
law.”). Because the separate opinion advancing an adversity theory speaks in terms
of Adelaide’s ability to “invoke the judicial power of the court of appeals or this
court” (emphasis added), separate opinion of Deters, J., at ¶ 104, it appears the
separate opinion is referring to the appellate court’s jurisdiction.
       {¶ 75} Courts in Ohio have the power to determine their own jurisdiction,
see Smith v. Ohio State Univ., 

 (Brunner, J., dissenting), citing
State ex rel. Ohio Bur. of Workers’ Comp. v. O’Donnell, 

,
although it is not uncommon for parties and courts to debate and determine the
propriety of a court’s jurisdiction before reaching the merits of a case, see, e.g., 

And courts routinely raise the question sua sponte. See, e.g., Preterm-Cleveland v.
Yost, 

 (1st Dist.) (“this court sua sponte raised a question
regarding appellate jurisdiction”). The court of appeals never questioned its own
authority when it heard Adelaide’s appeal, and correctly so.
       {¶ 76} The separate opinion advancing an adversity theory cites no law or
constitutional provision that requires adversity to invoke the jurisdiction of Ohio’s


                                          38
                                January Term, 2024




appellate courts. Ohio’s courts of appeals derive their “judicial power” from Article
IV, Section 3(B)(2) of the Ohio Constitution, which confers jurisdiction to those
courts “as may be provided by law to review and affirm, modify, or reverse
judgments or final orders of the courts of record inferior to the court of appeals
within the district.” Moreover, the General Assembly has provided the right to
appeal probate-court judgments and has set forth statutory criteria for determining
when an order constitutes a final, appealable order. See R.C. 2101.42 and 2505.02.
Neither of these provisions prevented the court of appeals from deciding the issues
presented in Adelaide’s appeal.
       {¶ 77} R.C. 2101.42 provides for appellate review of “any final order,
judgment, or decree of the probate court” on questions of law and in the same
manner as appeals from the general division of the court of common pleas. A “final
order” is defined in R.C. 2505.02(B)(2) as “[a]n order that affects a substantial right
made in a special proceeding.” R.C. 2505.02(A)(1) provides that a “substantial
right” is a right that is protected or enforced under a statute, such as R.C. 3705.15.
And “special proceeding” is defined as “an action or proceeding that is specially
created by statute and that prior to 1853 was not denoted as an action at law or a
suit in equity.” R.C. 2505.02(A)(2); see In re Estate of Wyckoff, 

,
358 (1957), quoting Schuster v. Schuster, 

 (1901) (“‘Where the
law confers a right, and authorizes a special application to a court to enforce it, the
proceeding is special, within the ordinary meaning of the term “special
proceedings.”‘”).
       {¶ 78} The core principle for appellate review in the Ohio Constitution and
these enabling statutes is finality, not adversity. See Michael L. Buenger, Ohio
Appellate Practice Before and After Polikoff: Are Things Really All That Much
Clearer?, 28 Akron L.Rev 1, 4 (1994) (“In Ohio, the requirement of finality before
appeal is so strong that there is arguably no appeal of an interlocutory order.”).
There is nothing in these provisions of law that would lead to even an inference that


                                        39
                                    SUPREME COURT OF OHIO




adverse parties or interests are necessary to institute an appeal. Therefore, the
Second District’s appellate review was well within its jurisdiction under the Ohio
Constitution and the statutory provisions providing a right of appeal under R.C.
2101.42 and 2505.02.
         B. Any adversity concerns presented here do not require dismissal
         {¶ 79} If adversity presents any problem for courts in Ohio, it is not a
problem affecting the jurisdiction of the courts. The General Assembly has
specifically provided authority to courts to adjudicate noncontentious actions,5 and
courts have long had the judicial power to hear and decide them. When courts were
formally established in Ohio, the legislature recognized that there were
nonadversarial actions. As one scholar has explained,


         The Act Organizing the Judicial Courts [of 1803] also gave the court
         of common pleas an additional jurisdiction. The statute granted the
         court “power to examine and take the proof of wills, to grant
         administration on intestate estates, and to hear and determine all
         causes, suits and controversies of a probate and testamentary nature,
         to appoint guardians for minors, idiots and lunatics, and to call such
         guardians to account.”




5. Examples of noncontentious causes of action in Ohio include an application for change of name,
R.C. 2717.02; an application for attorney fees in the administration of an estate, R.C. 2113.36; a
petition for adoption of an adult, R.C. 3107.02; an application for authority to expend guardianship
funds, Sup.R. 66(B); an application for approval in advance of a transfer of structured-settlement-
payment rights, R.C. 2323.584; an application for a marriage license, R.C. 3101.05; a petition for
judicial bypass of parental notification before obtaining an abortion, R.C. 2151.85; and a petition to
enforce a victim’s rights, Ohio Const., art. 1, § 10a. In other situations, a case may not have adversity
because of the waiver or ascension of another party, but that has not prevented this court from
reaching a decision in such a matter. See, e.g., State ex rel. Martre v. Cheney, 

(affirming court of appeals’ judgment, even though no opposing merit brief was filed in this court
on appeal); Furr v. Ruehlman, 

 (same).


                                                   40
                                January Term, 2024




John F. Winkler, The Probate Courts of Ohio, 28 U.Tol.L.Rev. 563, 570 (1997),
quoting 1 Ohio Laws 35, 39-40.
       {¶ 80} Even considering this history of Ohio’s courts, the separate opinion
advancing an adversity theory finds Adelaide’s appeal to be defective because if
she were to prevail, “no other person or entity would suffer a diminution of a legal
interest,” separate opinion of Deters, J., at ¶ 103. The rule of law is not a zero-sum
game, and it never has been. This is because people and their interests and concerns
are not figuratively black and white. The judiciary holds a unique fact-finding role
that often involves humanity’s many shades of gray. Adelaide’s claim before the
probate court did not require her to find an opposing party or adverse interest before
she applied for a correction of the sex marker on her birth certificate. See R.C.
3705.15. An actual “disagreement” may be necessary in causes of action that
require resolution of claims or disputes between or among parties. But the separate
opinion advancing an adversity theory does not demonstrate or even discuss why
adversity should be required for appeals of judgments from original causes of action
that are noncontentious by their nature.
       {¶ 81} Why does an application filed in a probate court to change a name
and a sex marker require an adverse person or interest before a decision on the
application may be appealed? No caselaw cited by the separate opinion advancing
an adversity theory answers this question or helps to resolve the anomaly of this
position. Justice Deters’s separate opinion claims that the need for adversity is
reflected in Article III of the United States Constitution and in cases decided by the
United States Supreme Court.        See separate opinion of Deters, J., at ¶ 100.
However, this court is not bound by federal Article III jurisprudence.
       {¶ 82} It is also clear that Adelaide had standing. She had a right to apply
to the probate court for correction of her birth record, see R.C. 3705.15, and she
had a right to appeal the probate court’s judgment, see R.C. 2101.42 and 2505.02.
Her case has never involved another party, and there is no statutory authority that


                                       41
                              SUPREME COURT OF OHIO




says that she has to find a party who opposes her application in order for her appeal
to survive. Federal Article III jurisprudence does not require an adversarial interest
or party in special proceedings such as Adelaide’s appeal; it therefore has no
application here.
        {¶ 83} The separate opinion advancing an adversity theory also relies on
State ex rel. Barclays Bank PLC v. Hamilton Cty. Court of Common Pleas, 1996-
Ohio-286, and State ex rel. Lorain Cty. Bd. of Commrs. v. Lorain Cty. Court of
Common Pleas, 

, both of which are writ-of-prohibition cases. In
Barclays Bank, we found that the trial court lacked subject-matter jurisdiction
because the parties lacked sufficiently adverse interests and failed to join “the only
entity with the motive and means to oppose” the underlying action. Barclays Bank
at ¶ 22. In examining the trial court’s jurisdiction based on whether there was an
“actual controversy,” we determined that without the adverse party—the actual
wrongdoer—the plaintiffs could not establish a claim upon which relief could be
granted. Id. at ¶ 22-23. In Lorain Cty. Bd. of Commrs., this court granted a writ of
prohibition because a former and the then-current administrative judge of the
Lorain County Common Pleas Court had issued orders without any party ever filing
suit. Lorain Cty. Bd. of Commrs. at ¶ 1-2. These cases underscore why an actual
controversy would be necessary to invoke the judicial power of a trial court, but
they do not explain why Adelaide cannot appeal the probate court’s decision here.
        {¶ 84} Justice Deters’s reliance on Barclays Bank and Lorain Cty. Bd. of
Commrs. seems more akin to trying to hold open the door to a legislative-committee
hearing so that an adverse party may be heard rather than reviewing an appeal of a
special-proceeding judgment.       Courts regularly hear appeals of probate-court
decisions, whether the underlying action is adversarial or not. Adelaide does not
need an adverse party to apply for a correction of the sex marker on her birth
certificate or to appeal the denial of that application.



                                           42
                                 January Term, 2024




        {¶ 85} The separate opinion advancing an adversity theory falls below even
a fringe theory of justiciability. And even if it were a recognized theory, it has been
rejected in other forums. See, e.g., In re Childers-Gray, 

. It
should be rejected in Adelaide’s case, too, because our own jurisprudence requires
it.
        {¶ 86} In 1878, this court undertook a constitutional review of a law; no
named party existed in the case and a decision about the constitutionality of the law
was made solely following consideration of amici curiae briefs.             See In re
Assignment of Judges to Hold Dist. Courts, 

 (1878). More recently,
this court considered and decided matters with no opposing party. See Jane Doe 1,

; Bonfield, 

; Bicknell, 2002-Ohio-
3615, at ¶ 1. We have permitted an amicus brief to be designated as a merit brief
after an appellant failed to file a merit brief, see Dunn, 

, even
though dismissal would have been allowed under our rules, S.Ct.Prac.R. 16.07(A)
(“If the appellant fails to file a merit brief . . . , the Supreme Court may dismiss the
appeal.”). And we have made other exceptions to what otherwise would have been
characterized as nonjusticiable claims in the interest of judicial economy, fairness,
and public importance. See, e.g., State v. Bishop, 

 (DeWine,
J., concurring in judgment only) (“We have . . . decided cases that were moot after
having found that the issues presented were capable of repetition yet evading
review.”).
        {¶ 87} The separate opinion advancing an adversity theory unwisely
ignores these precedents in favor of a strained judicial rule that disregards the fact
that R.C. 3705.15 is a special proceeding as defined by R.C. 2505.02(A)(2).
Denying an appeal from that special proceeding would unconstitutionally deprive
unopposed appellants such as Adelaide of any right to appeal. And such a denial
violates R.C. 2505.02(A)(2) and (B)(2), which provides Adelaide the right to appeal
a final order made in a special proceeding. In ignoring this law, the separate opinion


                                        43
                             SUPREME COURT OF OHIO




advancing an adversity theory seems unable to resist the temptation to recraft
Ohio’s laws regarding appealable orders when there is no authority to do so. We
are not the legislature. Certainly, before this court were to move in such a radical
direction, there should be some presentation of the issue, including additional
briefing.
       {¶ 88} Further, there are several means to mitigate prudential concerns
regarding the presentation of adverse arguments. See, e.g., Windsor, 

 (finding the intervenor’s “sharp adversarial presentation of the issues”
alleviated the concerns of a nonadversarial appeal). A court having bona fide
adversarial concerns may appoint an adverse amicus curiae, a law professor, or a
state agency to raise counterarguments to the arguments presented by a person such
as Adelaide. But suggesting that the decision of the court of appeals should be
vacated and this case dismissed based on a radical and untested theory of Ohio
appellate jurisdiction is grossly unworkable and lacking in justice. No law or
constitutional provision requires the presence of an adverse party in a special
proceeding to resolve questions of law on appeal in Ohio. See Ohio Const., art. IV,
§ 1; R.C. 2101.42; R.C. 2505.02.
       {¶ 89} Applicants like Adelaide are depending on this court to determine
what the law is—that is, whether R.C. 3705.15 provides them the constitutional
rights discussed by the federal court in Ray. And as the decision of the probate
court in this case shows, some lower courts apparently want clarity from this court
regarding how the decision in Ray affects the use of R.C. 3705.15 in cases such as
Adelaide’s. This court’s splintered decision in this case denies Ohio’s lower courts
any clarity, and persons who are transgender in some counties of this State may not
be afforded the right to correct their birth certificates under R.C. 3705.15.
       {¶ 90} This court has publicly recognized the shortage of attorneys in
Ohio’s 82 primarily nonurban counties (out of 88 counties) and has undertaken
specific efforts to increase the density of legal representation across the State,


                                          44
                                      January Term, 2024




including helping to inform Ohio attorneys about legislation that authorizes the
State to pay a portion of student loans of new attorneys who choose to work in those
82 counties.6 The State’s probate-court judges should similarly be affording the
same legal recourse in all of Ohio’s 88 counties, applying the statute at issue in
Adelaide’s case—R.C. 3705.15—consistently by following the constitutional
principles that the federal court applied in Ray, 507 F.Supp.3d at 937—namely, that
persons who are transgender “are entitled to heightened protection under the Equal
Protection Clause as a quasi-suspect class.” This, like the dearth of attorneys in 82
counties of this State, is an access-to-justice issue.
         {¶ 91} Regardless of whether adversity is as important an issue as the
separate opinion advancing an adversity theory says it is, the duty still exists to
carry out our primary responsibilities and say what the law is. See Marbury v.
Madison, 

 (1803) (“It is emphatically the province and duty of the
judicial department to say what the law is.”). And when newly raised concerns
about adversity may be fairly addressed by utilizing procedural mechanisms that
would lead to a broadening of the discussion, dismissing an appeal without utilizing
those procedural mechanisms is wrongheaded and unjust.
                                         IV. Conclusion
         {¶ 92} The law provides that a person may apply to have the sex marker on
his or her birth certificate corrected, without exception. R.C. 3705.15 does not
prohibit probate courts from considering applications filed by persons who are
transgender or seeking to correct the sex markers on their birth records. If a probate
court denies an application for a sex-marker correction because it finds that the facts
do not warrant a correction under the statute, the reviewing court should, as a matter


6. Sukosd, Rural Attorney Program Repays Student Loans (Jan. 31, 2024),
https://www.courtnewsohio.gov/happening/2024/RuralAttorneyProgram_013124.asp                 (accessed
May 23, 2024) [https://perma.cc/Z7J5-JHRK] (“‘Today, nearly 75% of Ohio lawyers practice in the
state’s six largest counties, leaving 56% of Ohioans with too few attorneys to meet their legal needs,’
said Supreme Court of Ohio Chief Justice Sharon L. Kennedy.”).


                                               45
                             SUPREME COURT OF OHIO




of law, examine that decision under the standard required of appellate courts in
reviewing denials of R.C. 3705.15 applications—abuse of discretion. This includes
the failure to follow the simple precepts of R.C. 3705.15.


       “No court—not a trial court, not an appellate court, nor even a
       supreme court—has the authority, within its discretion, to commit
       an error of law.” This should be axiomatic: a court does not have
       discretion to misapply the law.


Johnson v. Abdullah, 

, quoting State v. Boles, 2010-Ohio-
278, ¶ 26 (2d Dist.). The Second District Court of Appeals’ judgment should be
reversed and the case remanded to the probate court for that court to consider the
merits of Adelaide’s application to correct the sex marker on her birth certificate
from male to female. Because this court has strayed far from this simple course of
review, I respectfully offer this separate opinion.
                               __________________
       DETERS, J., joined by KENNEDY, C.J., and DEWINE, J., for reversing the
court of appeals’ judgment and remanding the cause to that court.
       {¶ 93} Hailey Emmeline Adelaide filed an application in the Clark County
Probate Court to correct the sex marker on her birth certificate. The probate court
denied her application, and she appealed that decision to the Second District Court
of Appeals. After the court of appeals affirmed the probate court’s denial, she
appealed the judgment of the court of appeals to this court and we accepted her
appeal to review three propositions of law.
       {¶ 94} Throughout the proceedings, there has been no opposition to
Adelaide’s application. No other person or entity has a legal interest that would be
diminished by the granting of her application. Her appeal to the court of appeals
and her appeal to this court have lacked adversity. Because the judicial power given


                                          46
                                      January Term, 2024




to Ohio’s courts extends only to those cases that involve adverse interests, the court
of appeals did not have the power to decide Adelaide’s appeal.7 Therefore, I would
reverse the judgment of the court of appeals and remand the case to that court for it
to dismiss Adelaide’s appeal.
                                           Background
         {¶ 95} In 1973, Adelaide was born a male and named Brian Edward
DeBoard. Her birth certificate, accordingly, stated that name and gender. In 2021,
Adelaide filed two applications with the probate court. The first sought to change
the name on her birth certificate to Hailey Emmeline Adelaide, and the second
sought to correct the sex marker on her birth certificate from male to female. At a
hearing on her applications, Adelaide explained that she began believing she was a
female at four years old and that she currently identified as female. In her view,
the sex marker identifying her as male was incorrect, because it did not take into
account how she would identify herself.
         {¶ 96} At the conclusion of the hearing, the probate court granted
Adelaide’s name-change application, and following further briefing from Adelaide,
the court denied her application to correct the sex marker on her birth certificate.
The court determined that R.C. 3705.15 allowed it to correct a sex marker on a birth
certificate only if the information was improperly recorded at the time of birth.
Because Adelaide was born with male anatomy, the court found that the sex marker
on her birth certificate was properly recorded as male and that it was not authorized
to correct the sex marker. Adelaide appealed to the Second District, which affirmed
the probate court’s judgment. 

 (2d Dist.).



7. Justice Donnelly proclaims that resolution of this appeal is being prevented by the justices who
join in this separate opinion and their refusal to act beyond this court’s judicial power. See separate
opinion of Donnelly, J., ¶ 30. While Justice Donnelly may brush off the limits of the court’s
constitutionally provided power—limits that have been long recognized by this court, as
demonstrated below in this separate opinion—as procedural theory, the justices who join in this
separate opinion decline to ignore the bounds of this court’s authority for purposes of expediency.


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                             SUPREME COURT OF OHIO




       {¶ 97} We accepted Adelaide’s discretionary appeal to review three
propositions of law:



               Proposition of Law No. 1: The plain language of R.C.
       3705.15 does not preclude probate courts from hearing a transgender
       person’s application to correct the sex-marker of her birth
       certificate.
               Proposition of Law No. 2: Even if R.C. 3705.15 were
       ambiguous, the statute should be construed to avoid the unappealed
       constitutional injuries found in [Ray v. McCloud, 

       (S.D.Ohio 2020)], which have prompted the relevant state agencies
       and a number of courts (including the Ohio Supreme Court) to adopt
       implementing guidance.
               Proposition of Law No. 3: A state court should give
       persuasive weight to a federal court’s conclusion that a specific
       application of a state statute violates the U.S. Constitution when all
       relevant data points support the federal court’s decision and the state
       agencies charged with implementing the law acquiesce to the ruling.


See 

.
                                      Analysis
       {¶ 98} The court of appeals’ judgment was grounded in its conclusion that
R.C. 3705.15 did not authorize the probate court to change or amend the sex marker
on Adelaide’s birth certificate because the sex marker was correct when it was
recorded. 

 (2d Dist.). But before considering the
merits of Adelaide’s appeal to this court, we must first ensure that resolution of the
issues falls within our judicial power—i.e., that there is an “‘actual controvers[y]’”



                                         48
                                January Term, 2024




before us (bracketed text in original), M.R. v. Niesen, 

, quoting
Fortner v. Thomas, 

 (1970).
       {¶ 99} The Ohio Constitution vests “[t]he judicial power of the state” in this
court and the inferior courts. Ohio Const., art. IV, § 1. “What constitutes judicial
power, within the meaning of the constitution, is to be determined in the light of
the common law and of the history of our institutions as they existed anterior to and
at the time of the adoption of the constitution.” State ex rel. Atty Gen. v. Harmon,

, 258 (1877).
       {¶ 100} The judicial power has long been understood to require adversity.
In 1768, English scholar William Blackstone wrote that a judicial proceeding
requires three parts: “the actor, or plaintiff, who complains of an injury done; the
resus, or defendant, who is called upon to make satisfaction for it; and the judex, or
judicial power.” (Emphasis in original.) 3 William Blackstone, Commentaries on
the Laws of England 25 (1768). This need for adversity is reflected in the “cases”
and “controversies” language in the United States Constitution, see U.S. Const., art.
III, § 2, and in many cases decided by the United States Supreme Court, see
Woolhandler, Adverse Interests and Article III, 111 Nw.U.L.Rev. 1025, 1027, fn.
4 (2017) (collecting cases).
       {¶ 101} In Ohio, it has long been understood that judicial power extends
only “to decide actual controversies between parties legitimately affected by
specific facts and to render judgments which can be carried into effect.” Fortner,

. “Actual controversies are presented only when the plaintiff
sues an adverse party. This means not merely a party in sharp and acrimonious
disagreement with the plaintiff, but a party from whose adverse conduct or adverse
property interest the plaintiff properly claims the protection of the law.” State ex
rel. Barclays Bank PLC v. Hamilton Cty. Court of Common Pleas, 

. This is not a “fringe theory of justiciability,” as Justice Brunner asserts.
Separate opinion of Brunner, J., ¶ 85. This court has repeatedly emphasized the


                                       49
                             SUPREME COURT OF OHIO




need for there to be an actual controversy in a case before a court may exercise its
judicial power over the case. See, e.g., State ex rel. Lorain Cty. Bd. of Commrs. v.
Lorain Cty. Court of Common Pleas, 

; 

;
Barclays Bank at ¶ 21.
       {¶ 102} Adelaide’s appeal lacks this necessary adversity. She seeks no
protection from the conduct of any other party. And no party claims to have a
competing interest as to a change to the sex marker on Adelaide’s birth certificate.
Put in terms of Blackstone’s Commentaries on the Laws of England, a decision in
favor of Adelaide in this matter would not call on any party “to make satisfaction
for” the injury to her. 4 Blackstone at 25.
       {¶ 103} At oral argument, counsel for Adelaide acknowledged that there
was no opposition to Adelaide’s application. There was also discussion about
whether the adversity problem could be alleviated by appointment of a party to
provide an adverse view. But the problem is not the absence of adverse argument.
Instead, there is no opposing interest. Were the probate court to grant Adelaide’s
application, no other person or entity would suffer a diminution of a legal interest.
This is why this court cannot remedy the adversity issue by doing what Justice
Brunner suggests and ordering additional briefing or appointing an adverse party to
raise counterarguments. See separate opinion of Brunner, J., at ¶ 87-88. With no
interest adverse to Adelaide’s, there is no counterargument to be made.
       {¶ 104} Nor does Adelaide’s disagreement with the probate court’s denial
of her application create the adversity required to invoke the judicial power of the
court of appeals or this court. “The presence of a disagreement, however sharp and
acrimonious it may be, is insufficient to create an actual controversy if the parties
to the action do not have adverse legal interests.” Barclays Bank, 

,
at paragraph one of the syllabus. The probate court itself has no legal interest
regarding whether the sex marker on Adelaide’s birth certificate is changed.



                                         50
                                January Term, 2024




       {¶ 105} Justice Brunner conflates the absence of an adverse interest with
the failure (intentional or otherwise) of an adverse party to defend that interest.
Justice Brunner insists that we have “decided matters on a lack of adversity theory
in the past,” citing three cases in support. Separate opinion of Brunner, J., at ¶ 51.
But it is the existence of the adverse interest that matters, not whether the party has
appeared to advocate for its interests. And in two of the three cases cited by Justice
Brunner, while the adverse party did not assert his or her rights, the court’s
adjudication of the case necessarily affected the legal interest of some other party.
See In re Jane Doe 1, 

 (1991) (resolution of a minor’s application
for judicial bypass necessarily affected parents’ right to the care, custody, and
control of their child); In re Bonfield, 

 (shared-parenting plan
necessarily affected the biological parent’s rights). In any event, none of the three
cases considered whether there was an adverse interest present, so they have no
stare decisis effect on the case before us, see N.A.T. Transp., Inc. v. McClain, 2021-
Ohio-1374, ¶ 24 (“prior decisions of this court did not have stare decisis effect,
because the issue to be resolved in the case before this court was not actually
litigated and decided in those decisions”), citing State ex rel. Davis v. Pub. Emps.
Retirement Bd., 

, ¶ 39.
       {¶ 106} While the Ohio Constitution grants courts of appeals jurisdiction
“as may be provided by law,” art. IV, § 3(B)(2), and the General Assembly has
provided for appellate review of final orders stemming from probate proceedings,
see R.C. 2101.42 and 2505.02, these provisions do not eliminate the necessity of
an adverse interest before a case may be brought to the court. Though these
provisions do not “require[] adversity to invoke the jurisdiction of Ohio’s appellate
courts,” separate opinion of Brunner, J., at ¶ 76, an Ohio court’s power of appellate
review is limited to the resolution of “actual controversies,” Travis v. Pub. Util.




                                        51
                                    SUPREME COURT OF OHIO




Comm., 

 (1931). When there is no adverse interest, there is
no controversy for this court to decide.8
         {¶ 107} The lack of an adverse interest in this case stems from the probate
court’s unique statutory role. The Ohio Revised Code empowers probate courts to
perform a variety of functions that require the exercise of the judicial power in
adversarial proceedings. For example, probate courts decide actions contesting the
validity of wills, R.C. 2101.24(A)(1)(p), issue declaratory judgments relating to the
validity of wills and trusts, R.C. 2101.24(A)(1)(l), and determine actions relating
to the disinterment and reinterment of human remains, R.C. 2101.24(A)(1)(dd).
But probate courts are also vested with certain administrative functions that do not
involve adversarial interests.           These include granting marriage licenses, R.C.
2101.24(A)(1)(f), solemnizing marriages, R.C. 2101.27, and appointing
commissioners of park-district boards, R.C. 1545.05. Just as one cannot appeal a
probate court’s decision on whom to place on a park-district board, one cannot
appeal a probate court’s decision on whether to change a sex marker on a birth
certificate.
         {¶ 108} As a final note, Justice Brunner intimates that this separate opinion
“seems unable to resist the temptation to recraft Ohio’s laws regarding appealable
orders when there is no authority to do so.” Separate opinion of Brunner, J., at
¶ 87. This is not true. Rather, this separate opinion recognizes the limits of judicial
power. And those limits cannot be ignored to further what might be politically
expedient or popular.




8. Justice Brunner also questions whether Adelaide and others are precluded from seeking
“extraordinary relief” or any other type of relief in cases such as this. Separate opinion of Brunner,
J., at ¶ 53. I believe that there is nothing that would foreclose any ability of Adelaide to seek another
form of relief.


                                                   52
                                January Term, 2024




                                    Conclusion
       {¶ 109} The judicial power extends only to actual controversies in which
there are adverse interests. In this case, there was no adverse interest to Adelaide’s
application to correct the sex marker on her birth certificate. Thus, the court of
appeals had no power to determine her appeal of the probate court’s denial of her
application. I would therefore reverse the judgment of the Second District Court of
Appeals and remand the case to that court for it to dismiss Adelaide’s appeal.
                               __________________
       Tucker Ellis, L.L.P., and Chad M. Eggspuehler; and Equality Ohio Legal
Clinic and Maya Simek, for appellant.
       Transgender Legal Defense and Education Fund, Inc., and Z. Gabriel
Arkles; and Cooper & Elliott, L.L.C., and C. Benjamin Cooper, urging reversal for
amici curiae Transgender Legal Defense and Education Fund, Black and Pink
National, and National Queer Asian and Pacific Islander Alliance.
       Wilmer Cutler Pickering Hale & Dorr, L.L.P., Mark Selwyn, Andrew
Waks, and Quentin Sims; Public Rights Project and Joshua Rosenthal; and Zachary
M. Klein, Columbus City Attorney, urging reversal for amicus curiae City of
Columbus.
       Emily Smart Woerner, City Solicitor, urging reversal for amicus curiae City
of Cincinnati.
       Flowers & Grube, Louis E. Grube, Paul W. Flowers, and Melissa A. Ghrist;
and TransOhio, Inc., and James C. Knapp, urging reversal for amici curiae
TransOhio, Inc., Ace and Aro Alliance of Central Ohio, BCC Full Spectrum
Community Outreach, BGO Pride Association, Black Transmen of Ohio,
Cleveland Bi+ Network, Columbus Trans Pride, Crossport Cincy, Equitas Health,
GLSEN Central Ohio, LOVEboldly, Margie’s Hope, META Center, Inc.,
Organizing Communities Transgender Outreach Promoting United Support
(“OCTOPUS”), L.L.C., OutSupport, Positive Progressions, Transgender Advocacy


                                       53
                            SUPREME COURT OF OHIO




Council, TransAlive, TransCend Canton, TransFamily Cleveland, and Transgender
Mentorship of Cincinnati.
                             __________________




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