Transgender Utahns await a resolution on gender markers from Utah Supreme Court

(Leah Hogsten | The Salt Lake Tribune) Angie Rice stands in the foyer of the Scott M. Matheson Courthouse, Nov. 27, 2019. It's been nearly two years since the Utah Supreme Court heard oral arguments in her gender marker change case and still the court has yet to issue an opinion.

When she saw the red and blue police lights flashing behind her car this summer, Angie Rice’s heart started to race.

She knew Layton police would likely give her a traffic citation for turning left against a sign telling her she couldn’t. But that wasn’t the only fear running through her mind.

“I thought I was going to go to jail because my identification was questioned, because it didn’t suit who I was,” she recalled during a recent interview with The Salt Lake Tribune, her voice wavering at the memory.

More than a year before her traffic stop, in January 2018, Rice stood before the Utah Supreme Court and asked the justices to overturn a lower court ruling rejecting the gender marker change she’d sought to align her legal documents with her identity.

She’s still awaiting a ruling. Her driver license and birth certificate still identify her as male, the gender she was assigned at birth. And she doesn’t know how much longer she’ll have to live in fear of interactions that for most people present a mere annoyance or if her life will always be this way.

“I love people saying to me, ‘Angie, the courage and the grace that you’ve had through this [legal process] is amazing,’” she said. “But they don’t see the hurt and the sacrifice behind the scenes. It puts what should be a good life on hold. It just does.”

Rice didn’t get arrested when she was pulled over that May day, but she said the fear and vulnerability she felt stays with her “every day.”

When the box marked “gender” doesn’t match the way someone identifies and outwardly presents, it can pose myriad practical, legal and psychological issues, opening up transgender and nonbinary Utahns to discrimination and, in some cases, even violence.

Obtaining alignment typically requires court approval. But because Utah law doesn’t define what a “sex change” is or the process for receiving one, petitioners have received sometimes inconsistent rulings depending on where they live and what judge they’re assigned.

In 2016, Ogden Judge Noel Hyde allowed for name changes for Rice and Sean Childers-Gray, a co-appellant in the case, but said a lack of clarity in state code prevented him from granting their gender identity changes.

(Francisco Kjolseth | Tribune file photo) Two transgender Utahns, who have been denied a legal sex designation by a state judge, are challenging the ruling by asking the Utah Supreme Court to overturn the decision. Angie Rice and Sean Childers-Gray, pictured, June 30, 2017, hope the justices overrule the district court and grants their petitions. More than two years later, they're still waiting.

Those rulings, which set in motion the case currently before the high court, are believed to be the first issued in Utah. But they weren’t the last.

Hyde’s rulings were followed in 2017 with a similar decision by 3rd District Judge Bruce Lubeck, who denied a petition filed by the parents of a then-17-year-old transgender girl. An appeal in that case is on hold pending a ruling in Rice’s and Childers-Gray’s case.

Chris Wharton, an attorney and Salt Lake City councilman who’s representing the pair, said it’s “very strange” for an issue to sit this long without a resolution before the Supreme Court, which usually releases opinions within six months to a year after oral arguments.

“In the time that it’s taken to do this case, they could have moved from Weber (Childers-Gray) and Morgan County (Rice) respectively to Salt Lake County or any other county outside the 2nd District, established residency there, obtained the relief that they’re asking for and moved back to their counties of original residence,” he said. “And they could have done that two times since.”

Geoff Fattah, a spokesman with the courts, said the justices make no guarantees as to when they will issue a decision. Timing can depend on the nature and weight of the case, he said.

“The Supreme Court takes the time that it needs to reach a decision,” he said.

Whenever it comes, the outcome of Rice’s and Childers-Gray’s case is expected to affect not only their lives but also to provide clarity and uniformity across the state and especially for those who live in the areas where Wharton said judges continue to deny or decline to weigh in on petitions in the absence of a court decision.

“Some judges have said that they won’t make a ruling on gender change cases until the court has made a decision,” he said. “Other courts have said, ‘Until there’s a decision telling me that we can’t do this, I’m assuming that I can because nothing has changed because there’s been no decision.’ ”

The vast majority of judges in Utah fall into the latter category and continue to approve gender marker changes, said Wharton, whose firm often represents people seeking such relief in the courts.

(Steve Griffin | The Salt Lake Tribune) The Utah Supreme Court listens to attorney Chris Wharton as he presents oral arguments about whether an Ogden judge erred when he denied two transgender Utahns gender marker changes, even though he allowed them to change their names. The case is not being challenged by the state. The court heard the arguments in the Matheson Courthouse in Salt Lake City Monday January 8, 2018.

That makes it even more painful for Rice, who works as a special-education teacher in Morgan County and has been living publicly as a woman since legislators passed SB296, which protects LGBTQ individuals from discrimination at work or in housing, in 2015.

When the judge denied Rice’s request, even as similar ones were “being granted all over the state in other districts,” all she could think was: “‘Why is this happening to me? If it can be other people, why not me?’”

As of Oct. 1, 71 people have successfully obtained gender marker changes this year, down from a seven-year high of 83 in 2018. Courts have also granted three “X” designations so far in 2019 for those who identify as neither male nor female, according to data from Utah’s Office of Vital Records and Statistics.

Jessie Hensley, who identifies as nonbinary and uses the pronouns “they” and “them,” received a ruling on their “X” designation earlier this year. It was Hensley’s second name change, after originally obtaining a switch from an “F” to an “M” because there wasn’t any precedent for an "X" in Utah until last year.

To now feel that their gender markers match their identity is legitimizing, Hensley said.

“I just feel kind of isolated sometimes when there’s so much misunderstanding around things other than the gender binary,” Hensley said. “To just be able to have something that recognizes a part of who I am in a way that gets overlooked so much is very validating.”

State Sen. Todd Weiler sees the ambiguity in state law around the issue of gender marker changes as a question for lawmakers, not judges, who he’s said have had to legislate from the bench in lieu of specificity.

The Woods Cross Republican has worked the past few years to pass legislation aimed at providing more clarity on the process for Utahns but has run into opposition from far-right groups and advocates for the transgender community, as well as from those who want to wait for the Supreme Court to rule.

“Nobody really wants to get out ahead of this because the rules are changing quickly in our society when it comes to transgender issues,” he said. “Everyone’s kind of waiting to see what another body’s going to do.”

In the 2019 legislative session, Weiler and fellow Republican and attorney Rep. Merrill Nelson of Grantsville proposed dueling bills on the issue. The former sought to establish a consistent process for Utahns to change their listed genders while the latter was more restrictive and would have allowed Utahns to change the gender only on their driver licenses.

Both lawmakers ultimately abandoned their measures amid backlash — and Weiler said he doesn’t plan to run another bill in the next legislative session.

“I don’t know that there’s a consensus now in 2020 that we couldn’t reach in 2018 or 2019,” he said.

(Rick Bowmer | AP file photo) FILE - In this Jan. 31, 2018, file photo, Sen. Todd Weiler, R-Woods Cross, speaks on the Senate floor in Salt Lake City. A proposal that would have blocked transgender people from changing the sex listed on birth certificates in Utah was shelved Thursday, Feb. 14, 2019, prompting a sigh of relief for LGBT advocates but leaving the issue in limbo. "I don't think anyone in Utah, including the governor, would want to do anything to put at risk attracting Fortune 500 companies and international sporting events," said Weiler. He had a competing proposal to create a clear process for changing gender on state documents, but also decided to put it on hold for the year.

Nelson did not respond to a request for comment on whether he plans to run legislation on the issue next year.

Sue Robbins, head of the Utah Pride Center, has been watching the case and said the issue will come back into the legislative realm after the Supreme Court rules.

“I really hope that this will add clarity for Angie and for Sean, but if it took this long to get to a resolution, I don’t see how this will add clarity across the board,” she said. “I believe we’ll still need something in the future with the Legislature so we can stop the gender marker requests that are getting declined in certain areas and get gender markers approved throughout the state.”

Wharton’s argument before the Supreme Court, though, is that judges don’t necessarily need any more clarity from the Legislature to rule. Nothing in the plain language of Utah’s law would prevent them from granting gender marker changes, he’s argued, and the judiciary has “common law authority” to do so.

In the past, gender marker changes have often been considered under a process similar to the one judges use to grant name changes. Under those rules, people can choose any name they want as long as the change is not for wrongful or fraudulent reasons, he said.

“There’s a common law right to have one’s official legal identity be made congruent with how someone holds themselves out, which is sort of the same thinking behind a name change,” Wharton said.

The circumstances in this case are unusual because the appeal stems from a judicial ruling — so unlike a criminal case or a traditional civil dispute, in which two sides are at odds, there is no party to oppose it.

That was a concern for the Supreme Court, which raised concerns last year about the lack of an adversary and ordered both the defendants and the Utah attorney general’s office to provide supplemental briefings on that and other issues that came up during oral arguments.

The attorney general’s office, in a briefing filed Thursday, doesn’t contest the arguments in Wharton’s brief and argues that courts have jurisdiction over name changes going back to statehood-era statutes.

“Even if this case lacks adversariness,” the office wrote, “it would not necessarily prevent the Court from exercising jurisdiction.”

Wharton’s office will file a supplemental brief in the case by early next month. After that, he said a ruling could come fairly quickly — but it’s also possible the justices could ask for another round of oral arguments, he said.

“I don’t know if they’ve sort of decided the issue, but they only have this one last piece, the jurisdiction piece, that they’re going to then add in or if they haven’t really decided any of it and they want to hear this jurisdictional piece before they decide all the other matters,” he said. “We don’t know the answer, unfortunately.”

That’s a concern for Rice, who already feels she’s sacrificed so much for the case, including time, thousands of dollars and even her relationships with family members.

Now, whatever the ruling is, she just wants closure so she can move on with her life.

“If you’ve got cancer, a doctor can’t tell you that you don’t have cancer,” she said. “You got to know what you have and you got to fight forward. And if we have a positive outcome, I don’t want to stand on the steps and rally. I just want to go home.”