University of Michigan Law School
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Case Name Whitaker v. Kirby PB-OH-0012
Docket / Court 1:18-cv-00540 ( S.D. Ohio )
State/Territory Ohio
Case Type(s) Public Benefits / Government Services
Case Summary
The parents of transgender minors who sought, are seeking, or intend to legally change their names pursuant to Ohio law brought this suit. The plaintiffs filed a complaint against an Ohio probate judge, in his official capacity, in the Southern District of Ohio on August 3, 2018. The complaint was ... read more >
The parents of transgender minors who sought, are seeking, or intend to legally change their names pursuant to Ohio law brought this suit. The plaintiffs filed a complaint against an Ohio probate judge, in his official capacity, in the Southern District of Ohio on August 3, 2018. The complaint was brought under 42 U.S.C. § 1983 and alleged violations of the Equal Protection Clause of the Fourteenth Amendment. The complaint specifically alleged that the defendant treated transgender minors differently from other applicants who sought name changes in the probate court. They sought declaratory relief and attorney's fees. The case was assigned to Judge William O. Bertselman.

The child of the first named plaintiff petitioned the court for a name change in April, 2018, and both of his parents consented to the name change. The plaintiff desired a name change because his school records and college applications could not be changed to reflect his chosen name until the name change was legal. The complaint alleged that, at his hearing, the judge asked him personal and irrelevant questions, and denied the motion for the name change until the minor became an adult.

The second plaintiff's child had also filed for a name change in front of the same probate judge, which had been scheduled for August 14, 2018. Both of his parents consented, and he wanted his name to be reflected on all legal documents, including his school records, driver's license, and college applications.

The third plaintiff's child had plans to file for a name change application, but had not yet, because he feared unequal and embarrassing treatment by the defendant. The complaint alleged that the defendant had a pattern and practice of treating transgender adolescents differently than other name change applicants. For instance, he made them have a name change hearing, whereas other name change applicants were assigned to a magistrate judge and were not required to have a hearing. The complaint also alleged that the defendant denied every application for a name change by a transgender adolescent, and that his decisions were based on preconceived notions about transgender people.

To legally change one's name in Ohio, one must first petition the probate court, which has jurisdiction over name changes. Parents, legal guardians, and guardians ad litem can petition on the behalf of minors. Ohio law requires the court to consider the best interest of the child in determining whether reasonable and proper cause had been established.

On August 31, 2018, the defendant moved to dismiss the complaint for failure to state a claim, citing judicial immunity and abstention issues. The court granted defendant's motion to dismiss on October 30, 2018. The court found that the defendant had judicial immunity because he had no personal stake in the matter, but was "performing his judicial duty to decide whether the name change was in the best interest of the child." Whitaker v. Kirby, 2018 WL 5622040 at *2. The court determined that, because judicial immunity required the case to be dismissed, it did not need to address the abstention issues, but that there were three that were relevant. First, the Rooker-Feldman Doctrine barred the federal court from reviewing the results of state court judgments. Second, the denial of the name change was still on appeal in state court, which eliminated the need to reach a federal question. Third, the state issues were substantially parallel to the federal issues, that the court had discretion to dismiss. The case is now closed.

Elizabeth Heise - 02/17/2019


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Issues and Causes of Action
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Issues
Affected Gender
Male
Constitutional Clause
Equal Protection
Discrimination-basis
Age discrimination
Gender identity
Sex discrimination
General
Disparate Treatment
Gay/lesbian/transgender
Juveniles
Plaintiff Type
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
Defendant(s) Ohio probate judge
Plaintiff Description parents of transgender minors who sought, or hoped to seek, legal name changes in Ohio
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party Defendant
Public Int. Lawyer Yes
Nature of Relief None
Source of Relief None
Filing Year 2018
Case Closing Year 2019
Case Ongoing No
Docket(s)
1:18-cv-00540 (S.D. Ohio)
PB-OH-0012-9000.pdf | Detail
Date: 10/30/2018
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint [ECF# 1] (2018 WL 3727788)
PB-OH-0012-0001.pdf | WESTLAW | Detail
Date: 08/03/2018
Source: PACER [Public Access to Court Electronic Records]
Order Granting Motion to Dismiss [ECF# 43] (2018 WL 5622040) (S.D. Ohio)
PB-OH-0012-0002.pdf | WESTLAW | Detail
Date: 10/30/2018
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Bertelsman, William Odis (E.D. Ky.) show/hide docs
PB-OH-0012-0002 | PB-OH-0012-9000
Plaintiff's Lawyers Engel, Joshua A. (Ohio) show/hide docs
PB-OH-0012-0001 | PB-OH-0012-9000
Langdon, Joshua R. (Ohio) show/hide docs
PB-OH-0012-0001 | PB-OH-0012-9000
Orr, Asaf (California) show/hide docs
PB-OH-0012-9000
Stoll, Christopher (California) show/hide docs
PB-OH-0012-9000
Tamashasky, Anne L. (Ohio) show/hide docs
PB-OH-0012-0001 | PB-OH-0012-9000
Defendant's Lawyers Anderson, Keith Wendell (Ohio) show/hide docs
PB-OH-0012-9000
Glasgow, Aaron Michael (Ohio) show/hide docs
PB-OH-0012-9000
Teetor, John Stephen (Ohio) show/hide docs
PB-OH-0012-9000
Other Lawyers Cox, Brandon D. (Ohio) show/hide docs
PB-OH-0012-9000

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