Chris Wharton, J.D. ’09, and Kyler O’Brien, J.D. ’16, represented Angie Rice and Sean Childers-Gray in the case—In Re Gray and Rice (20170046) 2021 UT 13—along with attorneys Troy Booher, Beth Kennedy, and Alexandra Mareschal. Beth Jennings, adjunct assistant professor and assistant librarian in the college’s James E. Faust Law Library, provided substantial research support.
The case came before the state’s top court in 2018 after a judge in Utah’s 2nd District Court in Ogden denied petitions filed by Rice and Childers-Gray on the grounds that how birth certificates can be changed is purely the Legislature’s prerogative.
Not so, said the court in its 4-1 decision. “A person has a common-law right to change facets of their personal legal status, including their sex designation,” the majority said in the decision. The court said the Utah Legislature has, by statute, provided a process to seek court approval of a change in name or sex identification. If granted, that court order then can be filed with the state registrar with an application to change a birth certificate.
“Today, we provide a plain-meaning interpretation of the duly enacted law allowing individuals to change their sex designations,” the majority wrote, noting the requirements had been met by the appellants. It reversed the district court’s decision and remanded the case with instructions to enter orders granting the sex-change petitions filed by Rice and Childers-Gray.
In a footnote, the majority noted that “language matters” and said addressing petitioners by their preferred pronouns is important and “amplifies” the need to match government identification documents to held-out identities. The majority also rejected “with hammer and tongs” assertions made by both the district judge and in the dissenting opinion that approving name and gender change applications would have general “slippery-slope” impacts, noting “other courts have addressed arguments like those made by the dissent and thoroughly rejected them.”
Rice and Childers-Gray are “kind of on cloud nine right now,” Wharton said. “Sean says he hasn’t slept this well in four years. This means that their applications are now going to be treated the same as hundreds or thousands of gender and name change applications across the state.”
Previously, judges within a single district were making differing decisions about applications. “If you drew the right judge, you could get a name and gender change with no problem. If you drew the wrong judge, you were stuck,” Wharton said. “That is shocking to most people in this country to think that a law is not applied uniformly to you and your neighbor, depending on which area of the state you live in and what judge you drew.”
Wharton said the decision also means that other transgender Utahns no longer must worry about how their applications will be handled no matter what county or courtroom they find themselves in.
“We have a clear, workable standard that has been in place since the statute was created back in the 1970s and we have clear instructions from the state’s supreme court about how that is going to be applied uniformly across the state.”
More broadly, Wharton said, the case is significant for the legal community and jurisprudence in the state because it demonstrates that the Utah Constitution doesn’t require a case or controversy for an issue to be resolved in state court. “No one opposed this from the beginning,” Wharton said, “it was just the refusal of the judge to grant the relief requested.”
Wharton said the Utah Attorney General’s Office declined to intervene in the case early on. When asked by the justices to provide the court with briefs on three issues, the office “basically said they were satisfied with our briefing and, since we weren’t challenging the constitutionality of any statutes, didn’t have any objection to the remedy we were asking for.”
While statutes governing how birth certificates can be changed vary from state to state, the Utah Supreme Court’s analysis about individuals having a common law right to change their name or gender on these documents adds to the body of law nationally reaching the same conclusion.
“The Utah Supreme Court’s analysis will be really helpful as a persuasive authority” on the common law nature of this right, Wharton said.