Elliott Whitaker thought that his legal name change would be a “formality.”
The 15-year-old transgender boy and his parents had been told that, typically, a judge would just ask benign questions like “Do you like school?” or “What sports do you play” before processing the paperwork that would make Elliott’s feminine-sounding birth name a relic of the past. But that’s not what happened.
“We got in there and it was like an interrogation,” Elliott told The Daily Beast.
ADVERTISEMENT
Judge Joseph Kirby of Warren County, Ohio, the family says, asked “uncomfortable” and “irrelevant” questions about Elliott’s transition and his hormone therapy. Kirby even brought up Caitlyn Jenner, whom he referred to using Jenner’s previous name.
“Oh, it was surreal,” Elliott’s mother, Leigh, told The Daily Beast.
Judge Kirby did not rubber-stamp the name change, instead making the family wait for a written decision. Leigh saw the judge’s answer coming, telling The Daily Beast that she “could tell [the hearing] was going badly” and that she was “pretty sure by the end of it that he was going to say no.” That prediction came true.
In late June, Kirby wrote in his decision that “the Court cannot find the name change as reasonable and proper and in the child’s best interest at this time.” (On Monday, as the Cincinnati Enquirer reported, the family formally appealed the decision to state district court.)
The three-page decision continually misgendered Elliott and went into an unusual level of detail about his coming out process, his testosterone treatments, and whether or not he has had any “suicidal ideations.”
Then, instead of granting Elliott his new name, Kirby cited language from an Ohio Supreme Court case instructing that a trial court should consider “any other factor relevant to the child’s best interest” when considering a name change for a minor. That, apparently, is how Kirby justified the unusual move of denying a legal name change to a minor whose parents both supported the move.
“Adolescence is a time of fevered identity exploration,” Kirby philosophized. “In addition, adolescents can become fixated on their immediate desires and far too often lack the ability to fully appreciate the long-term effects of their decisions.”
Even though Elliott has persistent gender dysphoria, and is transitioning under the care of qualified medical professionals, Kirby referred to him as “a 15-year-old who lacks the age, maturity, knowledge, and stability to make this decision.” The judge concluded his decision by instructing Elliott to “ask this Court again once you become an adult.”
For Elliott, that would mean over two more years of being misgendered by substitute teachers during roll call—and of accidentally being outed to classmates who don’t know that he is transgender. There are also, of course, there the ripple effects that Kirby’s decision will have on Elliott’s other forms of state identification.
“I’m going to be 16 next year, and that’s when I get my driver’s license, so it’s going to be on my driver’s license and all my IDs until I can get it changed,” Elliott told The Daily Beast.
For LGBT rights attorney Josh Langdon, who is handling the family’s appeal, his reaction to Kirby’s decision was immediate: “This is absurd.”
For Langdon, Kirby’s actions are a clear example of government overreach and a violation of Elliott’s freedom of speech—his freedom, as Langdon puts it, to “name yourself.”
“He’s holding [Elliot’s] identity hostage,” Langdon told The Daily Beast of Judge Kirby’s decision. “Why would the government have more authority than both of the parents, and the doctors, and the actual child himself? That’s insane to me.”
For Elliott’s parents, the decision was an unexpected roadblock in their son’s transition.
“I felt like we had failed Elliott,” Leigh Whitaker told The Daily Beast. “I felt like we had not done what we needed to, so it was very hard.”
The case will now be sent to Ohio’s 12th District Court of Appeals, where Langdon says it could have one of two outcomes: an immediate rebuke of Kirby’s unusual decision or, potentially, one of the first cases to devote serious consideration to the legal issues.
“They could say, ‘This is a clear error and we want to resolve this,’” Langdon told The Daily Beast. “Or they could say, ‘This is a really gray area and we want to make sure we take a lot of time.’”
Contrary to Judge Kirby’s ruling, a June 2017 decision in New Jersey, Sacklow v. Betts [PDF] used the “best interest of the child standard” to grant a legal name change to a transgender boy, outlining a long list of factors that courts should consider including the child’s age, parental consent, and, notably, “any potential anxiety, embarrassment, or discomfort that may result from the child having a name he or she believes does not match his or her outward appearance and gender identity.”
In other words, there is legal precedent for a court to consider anxiety—the exact sort of anxiety that Elliott will feel driving around with his old name on his license—as a motivating factor to give a name change to a transgender minor.
Instead, Kirby seemed to acknowledge in his written decision that a legal name change would “help [Elliott] resolve some of the feelings of distress that accompanies [his] use of [his] birth name,” but ultimately seemed to decide that Elliott’s “distress” was less important than his own opinions about the development of “adolescent minds and bodies”—namely, that minors “are unable to cognitively and emotionally make adult-like decisions.”
Elliott himself presents a far cry from the sort of “fevered identity exploration” that Judge Kirby seems to think he may be caught up in. The young man told The Daily Beast that he is well aware teenage decisions are not always “rational,” but transitioning, for him, was a serious and sober choice.
“I just want to live a normal life,” he told The Daily Beast. “Normal people don’t have to go through all of this just to have the name they want.”
If Elliott and his family receive a favorable ruling at the district court level, that decision could help other transgender minors who are denied name changes by local judges.
“At the end of the day, this is about helping make sure that this family gets their decision reversed and then preventing this from happening to somebody else,” Langdon told The Daily Beast.
But at the heart of that legal battle is one young man who thought he would only have to spend one day changing his name, and now could spend months or years with a legal name that doesn’t match who he is.
“It’s just going to be more waiting for it, like always,” Elliott told The Daily Beast. “I’m pretty much used to having to persevere.”
