Half-Loaves are not enough: How a probate court and legislature failed trans people

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There should be no such thing as an officially published probate court opinion.

Probate courts typically consist of individual judges elected by constituencies no larger than a single county. That’s not to say that probate cases have no business leading to published opinions; the U.S. Supreme Court’s first recognition that sex discrimination can violate the Constitution resulted from a probate case.

Related: Joshua Harmon’s “Admissions” reflects whiteness back at itself

That case was Reed v. Reed.  It was the challenge of an Idaho law mandating a preference for men whenever equally-qualified men and women would seek to be the executor of an estate – all purportedly just to save courts the trouble of having to decide, not intended as discrimination (wink, wink, nudge, nudge.)

Future Supreme Court Justice Ruth Bader Ginsburg and underappreciated civil rights icon Pauli Murray were among the attorneys who convinced the high court to hold unanimously that “a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment.”

I don’t know if Idaho probate courts ever had the ability to publish opinions, or if any other state’s probate courts still can – but in 1987, Ohio’s could.

Not all states give probate judges control over the issuance of marriage licenses – but in 1987 Ohio did. As a result, we know what one probate court judge in Stark County at that time thought about laws regarding transgender people.

In re Ladrach 

“It seems obvious to the court that if a state permits such a change of sex on the birth certificate of a postoperative transsexual, either by statute or administrative ruling, then a marriage license, if requested, must issue to such a person provided all other statutory requirements are fulfilled.”

This seems like the quote of someone who is an ally to transgender or non-binary people, but it isn’t. Those familiar with Ohio probate Judge Denny Clunk might be surprised to learn he’s the author of those words. He has a historical reputation of transphobic rulings, such as in 2002 he “twisted arms” to get criminal charges filed against a trans man over his legal sex.

In 1987, the case In re Ladrach came to him, in which he ruled against Elaine Ladrach, a trans woman who was seeking to marry a man. In re Ladrach, an opinion authored by Clunk, a single judge from a single county in one state, is known for its multi-level insidiousness. Ohio had no statute allowing transgenders to change their birth certificate, so Clunk was able to reject Ladrach’s womanhood and her request for a marriage license.

In many, if not most other states, that rejection would have been seen by no one outside of those in the courtroom, but he was able to publish the opinion (513 N.E.2d 828), which let other judges – in Ohio and elsewhere – cite it against others seeking transition recognition in court. Publication also allowed scholars and other commentators to cite it when crafting books, articles and briefs asserting that the notion of transition is wholly alien to the law.

Such anti-trans advocates eagerly cite In re Ladrach as holding against transition.  And that’s not unethical; that was certainly Clunk’s ultimate ruling. The problem comes when those assertions are within arguments that trans birth certificate statutes have no meaning – that even states with such statutes do not really recognize transition.

It is exceedingly rare to find any acknowledgement from that side of the aisle that Clunk all but declared that he would have ruled in favor of Elaine Ladrach had a trans birth certificate statute was in place, but no birth certificate statute has ever been enacted in Ohio.

But one did come close.

The House Bill that should have been

The bill was introduced by Democratic Rep. Phale Hale in 1979.  He was an African-American Baptist minister who led the Columbus chapter of the NAACP. H.B. 750 appears to be his only direct connection to anything LGB or T. It also may have been purely the action of a legislator responding to a constituent.

A woman who lived in Hale’s district learned that Michigan passed a birth certificate bill in 1978.  She sought out the text of that law – in the pre-internet age, not always an easy task.  In her case she wrote directly to Michigan Gov. William Milliken; he didn’t respond personally, but the head of the state’s Department of Health did. Her subsequent interactions with Hale led him to sponsor birth certificate legislation for Ohio.

Fellow Democrat Harry Lehman applauded Hale’s introduction of the bill as a “courageous act.”  H.B. 750 passed 52-43 in the House in March 1980 with future Republican Governor Robert Taft III, and future Democratic U.S. Senator Sherrod Brown among those voting in favor.  However, the bill went nowhere in the Senate.  Hale retired shortly afterward.  There was no further serious push for birth certificate legislation in Ohio.

Approval by half of the legislature was just not enough.

And so, in 1987, Elaine Ladrach was at the mercy of a perfect storm: a lack of a trans birth certificate statute, a string of non-Ohio lower court decisions holding that without statutory authorization transition courts could not legally recognize transition, and a probate court judge who – positive dicta aside – had zero legal regard for trans people.  Clunk ruled against her.  His trans-erasive opinion went on to become one of the holy texts of those opposed to trans rights.

Well, all of his opinion except the trans-positive passage.

Recovering from the setbacks

Statutory approval by well over half of state legislatures should have slowed down, if not fully derailed, the anti-transition legal orthodoxy – it didn’t. In re Ladrach was cited by Littleton v. Prange, which was cited by In re Gardiner, which was cited by Kantaras v. Kantaras and so on and so on….

Then, in 2012, Minnesota federal District Judge Michael J. Davis stated the obvious in rejecting a challenge to Christine Radtke’s marriage. In the jurisdictions with trans birth certificate statutes, “there is no need for anyone to litigate the issue. Therefore, the lack of cases from other jurisdictions affirmatively holding that a transgender individual can marry someone of the opposite sex does not signal that most other jurisdictions prohibit such marriages.”

And by the time Nikki Araguz’s case reached the Corpus Christi-Edinburg Court of Appeals in 2014, Texas had legislation approving of transition recognition for marital purposes.

Araguz died on November 7th at the age of 44 – far too young, but she did get to enjoy five and a half years of judicial vindication of her marriage and gender.

That’s something Elaine Ladrach never got.  She died shortly after Clunk officially published his rejection of her marriage application – a rejection that would not have happened if the other half of Ohio’s legislature had gone along with Phale Hale’s bill.

And if in 2019 we somehow knew of Elaine Ladrach at all, it would hopefully be for something positive, not an anti-trans court decision which should never have been published, or cited for anything.

And, yes, as an example of why probate courts should not be allowed to officially publish their decisions.

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