Case: 1:18-cv-00540-WOB As of: 02/18/2019 10:02 PM EST 1 of 7
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U.S. District Court Southern District of Ohio (Cincinnati) CIVIL DOCKET FOR CASE #: 1:18−cv−00540−WOB

Whitaker et al v. Kirby Assigned to: Judge William O. Bertelsman Cause: 28:2201 Declaratory Judgment
Plaintiff Stephanie Leigh Whitaker

Date Filed: 08/03/2018 Date Terminated: 10/30/2018 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Anne L Tamashasky Engel & Martin, LLC 5181 Natorp Blvd., Ste.210 Mason, OH 45040 513−445−9611 Fax: 513−492−8989 Email: ladylawalt@mac.com TERMINATED: 08/21/2018 LEAD ATTORNEY
Joshua A Engel Engel & Martin, LLC 5181 Natorp Blvd., Suite 210 Mason, OH 45040 513−445−9600 Fax: 513−492−8989 Email: engel@engelandmartin.com TERMINATED: 08/21/2018 LEAD ATTORNEY
Joshua R Langdon Josh Langdon, LLC 810 Sycamore Street, Fl. 2 Cincinnati, OH 45202 513−246−1400 Fax: 513−263−9000 Email: Assistant@joshlangdon.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Asaf Orr National Center for Lesbian Rights 870 Market Street, Suite 370 San Francisco, CA 94102 415−392−6257 Fax: 415−392−8442 Email: aorr@nclrights.org PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Stoll National Center for Lesbian Rights 870 Market Street, Suite 370 San Francisco, CA 94102 415−392−6257 Fax: 415−392−8442 Email: cstoll@nclrights.org PRO HAC VICE ATTORNEY TO BE NOTICED
Shannon Minter

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National Center for Lesbian Rights 870 Market Street, Suite 370 San Francisco, CA 94102 (415) 392−6257 Fax: (415) 392−8442 Email: sminter@nclrights.org PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Jennifer Shaul

represented by Anne L Tamashasky (See above for address) TERMINATED: 08/21/2018 LEAD ATTORNEY

Joshua A Engel (See above for address) TERMINATED: 08/21/2018 LEAD ATTORNEY

Joshua R Langdon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Asaf Orr (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Stoll (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shannon Minter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Jane Doe

represented by Anne L Tamashasky (See above for address) TERMINATED: 08/21/2018 LEAD ATTORNEY

Joshua A Engel (See above for address) TERMINATED: 08/21/2018 LEAD ATTORNEY

Joshua R Langdon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Asaf Orr (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Stoll (See above for address) PRO HAC VICE

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ATTORNEY TO BE NOTICED
Shannon Minter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant Joseph W. Kirby
Amicus The Trevor Project Tucker Ellis LLP 950 Main Avenue, #1100 Cleveland, OH 44113 216−592−5000

represented by John Stephen Teetor Isaac Wiles Burkholder & Teetor, LLC Two Miranova Place Suite 700 Columbus, OH 43215 614−221−2121 Email: steetor@isaacwiles.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron Michael Glasgow Isaac, Wiles, Burkholder & Teetor, LLC 2 Miranova Place, Suite 700 Columbus, OH 43215 614−221−2121 Fax: 614−365−9516 Email: aglasgow@isaacwiles.com ATTORNEY TO BE NOTICED
Keith Wendell Anderson Asst Prosecuting Attorney 500 Justice Drive Lebanon, OH 45036 (513) 933−1325 Email: keith.anderson@co.warren.oh.us ATTORNEY TO BE NOTICED
represented by Brandon D. Cox 950 Main Avenue, Suite 1100 Cleveland, OH 44113 216−696−2564 Fax: 216−592−5009 Email: brandon.cox@tuckerellis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/03/2018 08/03/2018
08/03/2018 08/06/2018

# Docket Text
1 COMPLAINT against Joseph W. Kirby ( Filing fee $ 400 paid − receipt number: 0648−6544720), filed by Stephanie Leigh Whitaker, Jane Doe, Jennifer Shaul. (Attachments: # 1 Civil Cover Sheet) (Engel, Joshua) (Entered: 08/03/2018)
2 MOTION to Expedite AND SPEEDY HEARING OF A DECLARATORY−JUDGMENT ACTION by Plaintiffs Jane Doe, Jennifer Shaul, Stephanie Leigh Whitaker. (Attachments: # 1 Text of Proposed Order) (Engel, Joshua) (Entered: 08/03/2018)
3 MOTION FOR LEAVE TO PROCEED ANONYMOUSLY by Plaintiff Jane Doe. (Attachments: # 1 Text of Proposed Order) (Engel, Joshua) (Entered: 08/03/2018)
If this case is referred, it will be to Magistrate Judge Karen L. Litkovitz. (jlw) (Entered: 08/06/2018)

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08/06/2018 08/07/2018 08/08/2018 08/08/2018 08/09/2018 08/09/2018 08/10/2018 08/14/2018
08/16/2018
08/16/2018
08/20/2018 08/28/2018 08/31/2018
09/07/2018

4 CERTIFICATE OF SERVICE by Plaintiffs Jane Doe, Jennifer Shaul, Stephanie Leigh Whitaker re 2 MOTION to Expedite AND SPEEDY HEARING OF A DECLARATORY−JUDGMENT ACTION, 1 Complaint, 3 MOTION FOR LEAVE TO PROCEED ANONYMOUSLY (Engel, Joshua) (Entered: 08/06/2018)
5 ORDER granting 3 Motion for Leave to Proceed Anonymously signed by Judge William O. Bertelsman on 08/07/2018. (bjc) (Entered: 08/07/2018)
6 NOTICE OF WITHDRAWAL OF DOCUMENT by Plaintiffs Jane Doe, Jennifer Shaul, Stephanie Leigh Whitaker re 2 MOTION to Expedite AND SPEEDY HEARING OF A DECLARATORY−JUDGMENT ACTION (Engel, Joshua) (Entered: 08/08/2018)
7 MOTION to Expedite AND SPEEDY HEARING OF A DECLARATORY−JUDGMENT ACTION by Plaintiffs Jane Doe, Jennifer Shaul, Stephanie Leigh Whitaker. (Attachments: # 1 Affidavit Joshua Langdon, # 2 Text of Proposed Order) (Engel, Joshua) (Entered: 08/08/2018)
8 NOTICE of Appearance by John Stephen Teetor for Defendant Joseph W. Kirby (Teetor, John) (Entered: 08/09/2018)
9 NOTICE of Appearance by Aaron Michael Glasgow for Defendant Joseph W. Kirby (Glasgow, Aaron) (Entered: 08/09/2018)
10 WAIVER OF SERVICE Returned Executed. Waiver sent to Joseph W. Kirby on 8/3/2018, answer due 10/2/2018. (Engel, Joshua) (Entered: 08/10/2018)
11 ORDER − IT IS ORDERED that a telephonic status conference be, and hereby is, SET FOR THURSDAY, AUGUST 16, 2018 AT 1:00 P.M. Counsel for the parties shall connect to the conference five minutes before the call is scheduled to begin. To connect to the call, dial 877−336−1280. Then, when prompted to enter the participant access code, enter 4610163. Signed by Judge William O. Bertelsman on 08/14/2018. (bjc) (Entered: 08/14/2018)
Minute Entry for proceedings held before Judge William O. Bertelsman: Motion Hearing held on 8/16/2018 re 7 MOTION to Expedite AND SPEEDY HEARING OF A DECLARATORY−JUDGMENT ACTION filed by Jane Doe, Jennifer Shaul, Stephanie Leigh Whitaker. Joshua Engel, Joshua Langdon, and Anne Tamashasky represented the plaintiffs. Stephen Teetor, Aaron Glasgow, and Keith Anderson represented the defendant. Order to follow. (Court Reporter: Joan Averdick) (bjc) (Entered: 08/16/2018)
12 ORDER − (1) Plaintiffs motion to expedite (Doc. 7) be, and is hereby, GRANTED; (2) Defendant shall file his proposed motion to dismiss on or before August 31, 2018; plaintiff shall respond within the time set by the Local Rules or more quickly if possible; and defendant shall file his reply brief within five (5) days thereafter; and (3) The parties may engage in written discovery only prior to the Courts ruling on the motion to dismiss.. Signed by Judge William O. Bertelsman on 08/16/2018. (bjc) (Entered: 08/16/2018)
13 NOTICE by Plaintiffs Jane Doe, Jennifer Shaul, Stephanie Leigh Whitaker of Withdrawal as Co−Counsel of Joshua Engel and Anne Tamashasky (Engel, Joshua) (Entered: 08/20/2018)
14 MOTION to File Document Under Seal /Redacted Documents by Defendant Joseph W. Kirby. (Glasgow, Aaron) (Entered: 08/28/2018)
15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Defendant Joseph W. Kirby. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Filing Fee Receipt Exhibit G, # 8 Exhibit Exhibiit H) (Glasgow, Aaron) (Entered: 08/31/2018)
16 ORDER − IT IS ORDERED that said motion (Doc. 14) be, and hereby is, GRANTED. Defendant shall file the redacted documents in support of his motion to dismiss (Doc. 15) under seal. Signed by Judge William O. Bertelsman on 09/07/2018. (bjc) (Entered: 09/07/2018)

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09/10/2018 09/10/2018
09/10/2018 09/11/2018 09/11/2018 09/12/2018
09/12/2018
09/12/2018 09/14/2018 09/17/2018 09/18/2018 09/18/2018 09/19/2018 09/19/2018

17 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $200 paid, receipt number 100CIN035002) of Shannon Minter by Plaintiffs Jane Doe, Jennifer Shaul, Stephanie Leigh Whitaker. (Langdon, Joshua) (Additional attachment(s) added on 9/11/2018: # 1 Filing Fee Receipt) (eh). (Entered: 09/10/2018)
18 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $400 paid, receipt number 100CIN035002) of Asaf Orr, Chris Stoll by Plaintiffs Jane Doe, Jennifer Shaul, Stephanie Leigh Whitaker. (Attachments: # 1 Orr − Certificate of Good Standing, # 2 Stoll − Certificate of Good Standing, # 3 Minter − Certificate of Good Standing) (Langdon, Joshua) (Additional attachment(s) added on 9/11/2018: # 4 Filing Fee Receipt) (eh). (Entered: 09/10/2018)
19 RESPONSE in Opposition re 15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Plaintiffs Jane Doe, Jennifer Shaul, Stephanie Leigh Whitaker. (Langdon, Joshua) (Entered: 09/10/2018)
20 MOTION to Expedite Speedy Trial by Plaintiffs Jane Doe, Jennifer Shaul, Stephanie Leigh Whitaker. (Attachments: # 1 Affidavit Linda Hawkins, PhD, MSEd, LPC Declaration, # 2 Exhibit Linda Hawkins, PhD, MSEd, LPC C.V.) (Langdon, Joshua) (Entered: 09/11/2018)
21 Unopposed MOTION for Extension of Time to File Response/Reply as to 19 Response in Opposition to 15 Motion New date requested 9/21/2018. by Defendant Joseph W. Kirby. (Glasgow, Aaron) Modified to create link to motion on 9/12/2018 (eh). (Entered: 09/11/2018)
NOTICE by Clerk re 17 & 18 MOTIONS for Leave to Appear Pro Hac Vice − documents filed without certificates of service as required pursuant to S.D. Ohio Civ. R. 5.2. To correct the filings, please file a one page certificate of service, using the Certificate of Service event found under Civil Events−Initial Pleadings and Service−Service of Process and link the event to docs. 17 & 18 when prompted. (eh) (Entered: 09/12/2018)
22 CERTIFICATE OF SERVICE by Plaintiffs Jane Doe, Jennifer Shaul, Stephanie Leigh Whitaker re 18 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $400 paid, receipt number 100CIN035002) of Asaf Orr, Chris Stoll, 17 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $200 paid, receipt number 100CIN035002) of Shannon Minter (Langdon, Joshua) (Entered: 09/12/2018)
23 ORDER granting 21 Motion for Extension of Time to File Response/Reply re 15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Replies due by 9/21/2018.. Signed by Judge William O. Bertelsman on 09/12/2018. (bjc) (Entered: 09/12/2018)
24 BRIEF by Amicus The Trevor Project. (Cox, Brandon) (Entered: 09/14/2018)
25 MOTION to Strike 24 Brief of Non−Party The Trevor Project by Defendant Joseph W. Kirby. (Glasgow, Aaron) (Entered: 09/17/2018)
26 [FORMER DOC. 26 − PLEASE DISREGARD. FILED IN ERROR.] MOTION for Leave to File Brief as Amicus Curiae by Amicus The Trevor Project. (Cox, Brandon) Modified docket text and document security on 9/18/2018 (eh). (Entered: 09/18/2018)
27 MOTION for Leave to File Brief as Amicus Curiae by Amicus The Trevor Project. (Attachments: # 1 Exhibit Memorandum in Support of Motion for Leave to File Brief as Amicus Curiae by The Trevor Project and in Opposition to Defendant's Motion to Strike) (Cox, Brandon) (Entered: 09/18/2018)
28 ORDER granting 17 Motion for Leave to Appear Pro Hac Vice of Shannon Minter; granting 18 Motion for Leave to Appear Pro Hac Vice of Asaf Orr and Chris Stoll. Signed by Judge William O. Bertelsman on 09/18/2018. (bjc) Modified Attorney Names on 9/20/2018 (bjc). (Entered: 09/19/2018)
Notice of Correction re: 27 MOTION for Leave to File Brief as Amicus Curiae This document is also a Response in Opposition to 25 MOTION to Strike. Counsel will file the same document using Civil Events Motions and Related Filings Responses and RepliesResponse in Opposition to Motion so that both events are captured. (jlw) (Entered: 09/19/2018)

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09/19/2018 09/21/2018 09/24/2018 10/01/2018 10/01/2018 10/02/2018
10/05/2018 10/08/2018 10/08/2018 10/12/2018 10/12/2018 10/12/2018 10/25/2018
10/26/2018 10/30/2018

29 RESPONSE in Opposition re 25 MOTION to Strike 24 Brief of Non−Party The Trevor Project filed by Amicus The Trevor Project. (Cox, Brandon) (Entered: 09/19/2018)
30 REPLY to Response to Motion re 15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Reply in Support of Defendant's Motion to Dismiss filed by Defendant Joseph W. Kirby. (Glasgow, Aaron) (Entered: 09/21/2018)
31 MOTION for Leave to File Surreply by Plaintiffs Jane Doe, Jennifer Shaul, Stephanie Leigh Whitaker. (Attachments: # 1 Exhibit Exhibit A − Proposed Surreply, # 2 Exhibit Exhibit B) (Langdon, Joshua) (Entered: 09/24/2018)
32 RESPONSE in Opposition re 27 MOTION for Leave to File Brief as Amicus Curiae filed by Defendant Joseph W. Kirby. (Glasgow, Aaron) (Entered: 10/01/2018)
33 RESPONSE in Opposition re 20 MOTION to Expedite Speedy Trial filed by Defendant Joseph W. Kirby. (Glasgow, Aaron) (Entered: 10/01/2018)
34 ORDER − IT IS ORDERED that: (1) The motions for leave to file the amicus brief of The Trevor Project (Docs. 26, 27) be, and are hereby, GRANTED; (2) The motion to strike (Doc. 25) be, and is hereby, DENIED; (3) Plaintiff shall tender to the Court and opposing parties a proposed draft of the exact language of the declaratory judgment it seeks within ten (10) days of the entry of this Order; (4) Formal oral argument on the above matters be, and is hereby, SET FOR WEDNESDAY OCTOBER 24, 2018 AT 1:00 P.M. IN COURTROOM 4, ROOM 842; and (5) The parties shall promptly file in this record copies of their briefs filed in the Ohio Court of Appeals. Signed by Judge William O. Bertelsman on 10/02/2018. (bjc) (Entered: 10/02/2018)
35 NOTICE by Plaintiffs Jane Doe, Jennifer Shaul, Stephanie Leigh Whitaker In Response to Court Order on October 2, 2018 (Attachments: # 1 Exhibit CA201807069, Ohio Court of Appeals Brief,) (Langdon, Joshua) (Entered: 10/05/2018)
36 NOTICE by Defendant Joseph W. Kirby re 34 Order Setting Hearing on Motion,,, Order to Show Cause,,, Terminate Motions,, NOTICE OF DEFENDANT JUDGE KIRBY IN RESPONSE TO COURT ORDER ON OCTOBER 2, 2018 (Teetor, John) (Entered: 10/08/2018)
37 NOTICE of Appearance by Keith Wendell Anderson for Defendant Joseph W. Kirby (Anderson, Keith) (Entered: 10/08/2018)
38 NOTICE by Plaintiffs Jane Doe, Jennifer Shaul, Stephanie Leigh Whitaker re 1 Complaint Proposed Declaratory Judgment (Attachments: # 1 Text of Proposed Order Proposed Declaratory Judgment) (Langdon, Joshua) (Entered: 10/12/2018)
39 REPLY to Response to Motion re 20 MOTION to Expedite Speedy Trial filed by Plaintiffs Jane Doe, Jennifer Shaul, Stephanie Leigh Whitaker. (Langdon, Joshua) (Entered: 10/12/2018)
40 ORDER − IT IS ORDERED that the formal oral argument hearing currently set for Wednesday, October 24, 2018 at 1:00 P.M. in Courtroom 4, Room 842, will begin at 2:00 P.M.. Signed by Judge William O. Bertelsman on 10/12/2018. (bjc) (Entered: 10/12/2018)
41 Minute Order for Proceedings Held before Judge William O. Bertelsman on 10/24/18: Oral Argument regarding various motions. Joshua Langdon and Asaf Orr represented the plaintiffs. Steve Teeter, Aaron Glasgow, and Keith Anderson represented the defendant. IT IS ORDERED that Doc. 15 20 25 26 27 31 be, and are hereby, TAKEN UNDER SUBMISSION. Signed by Judge William O. Bertelsman on 10/25/2018. (Court Reporter Joan Averdick, Official (KYED).) (bjc) (Entered: 10/25/2018)
42 NOTICE by Plaintiffs Jane Doe, Jennifer Shaul, Stephanie Leigh Whitaker re Timeline for Resolution of Whitaker Appeal (Attachments: # 1 Exhibit Letter) (Langdon, Joshua) (Entered: 10/26/2018)
43 ORDER − IT IS ORDERED that defendants motion to dismiss (Doc. 15)be, and is hereby, GRANTED; plaintiffs motion to expedite (Doc.20) be, and is hereby, DENIED AS MOOT; and plaintiffs motion forleave to file surreply (31) be, and is hereby, GRANTED NUNC PROTUNC. A separate judgment shall enter concurrently

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10/30/2018

herewith.This 30th day of October, 2018. Signed by Judge William O. Bertelsman on 10/30/2018. (bjc) (Entered: 10/30/2018)
44 JUDGMENT signed by Judge William O. Bertelsman on 10/30/2018. (bjc) (Entered: 10/30/2018)

 
 Case: 1:18-cv-00540-WOB Doc #: 1 Filed: 08/03/18 Page: 1 of 60 PAGEID #: 1

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

STEPHANIE LEIGH WHITAKER, 5248 Hidden Creek Circle Mason, OH 45040
JENNIFER SHAUL, 7893 Yellowwood Drive Mason, OH 45150
JANE DOE, c/o Josh Langdon, LLC 810 Sycamore Street, Fl. 2 Cincinnati, OH 45202
PLAINTIFFS,
vs.
JUDGE JOSEPH W. KIRBY Warren County Court of Common Pleas Probate & Juvenile Division 900 Memorial Drive Lebanon, OH 45036

Case No. 1:18-cv-540
Judge:
COMPLAINT

INTRODUCTION 1. Plaintiffs are the parents of transgender minors in Warren County who sought, are seeking, or
intend to seek to legally change their names pursuant to Ohio law. 2. This case arises out of the pattern and practice of Defendant, acting under the color of state law,
of treating transgender minors differently from others similarly situated without a rational basis for doing so in violation of their equal protection rights under the Fourteenth Amendment to the United States Constitution.

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PARTIES
3. Plaintiff Stephanie Leigh Whitaker is an Ohio resident with a principal address at 5248 Hidden Creek Circle, Mason, OH 45040. a. Whitaker and her husband, Kylen Whitaker, are parents of a fifteen-year-old transgender teen, Elliott Whitaker, whose legal name is currently Heidi Whitaker. b. Whitaker filed a petition in Warren County Probate-Juvenile Court for Elliott’s name change on April 24, 2018. Both parents consented to the legal name change to reflect Elliott’s correct gender identity after consulting with multiple medical professionals and discussing it with their child. c. Judge Kirby denied Elliott’s name change application on June 22, 2018. An appeal to the Ohio Twelfth District Court of Appeals has been filed.
4. Plaintiff Jennifer Shaul is an Ohio resident with a principal address at 7893 Yellowwood Drive, Mason, OH 45150. a. Shaul and her husband, Jeff Shaul, are parents of a fifteen-year-old transgender teen, James Shaul, whose legal name is currently Jenna Shaul. b. Shaul filed a petition in Warren County Probate-Juvenile Court for James’s name change on May 4, 2018. Both parents consented to the legal name change to reflect James’ correct gender identity after consulting with multiple medical professionals and discussing it with their child. c. A hearing on Shaul’s application for name change is set to be heard by Judge Kirby on August 14, 2018.
5. Plaintiff Jane Doe is an Ohio resident with a principle residence at [REDACTED]. a. Doe is the sole legal parent of John Doe, a seventeen-year-old transgender teen. John Doe is a rising senior in high school. 2

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b. Doe has consented to the legal name change to reflect John Doe’s correct gender identity after consulting with multiple medical professionals and discussing it with her child.
c. Doe is planning to file a petition in Warren County Probate-Juvenile Court for a name change. Doe is fearful that she and her child will be subjected to an unfair and unconstitutional refusal to consider the name change application.
d. The disclosure of Jane Doe’s identity will cause her child irreparable harm as this case involves matters of the utmost personal intimacy.
6. Defendant Joseph W. Kirby is a judge of the Warren County Common Pleas Court, ProbateJuvenile Division. a. Judge Kirby has a principal place of business at 900 Memorial Drive, Lebanon, OH 45036. b. Judge Kirby is, at all relevant times, acting under color of law. JURISDICTION AND VENUE
7. This case arises, in part, under the laws of the United States, specifically 42 U.S.C. § 1983 and the Fourteenth Amendment to the United States Constitution. Accordingly, this Court has jurisdiction in this matter pursuant to 28 U.S.C. §§ 1331.
8. The declaratory relief sought in this matter is authorized by 28 U.S.C. §§ 2201 and Federal Rule of Civil Procedure 57.
9. This Court is an appropriate venue for this cause of action pursuant to 28 U.S.C. § 1391. Defendant is a resident of the State in which this district is located and a substantial part of the events or omissions giving rise to the claim occurred in this district.
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FACTS NAME CHANGES FOR TRANSGENDER CHILDREN 10. Gender identity is a well-established medical and psychological term that refers to a person’s
fundamental, internal sense of their gender. Sex is the gender a person was assigned at birth, which correlates with genitalia. Gender identity matches the sex assigned at birth for most, but not all, people. Transgender people are people whose gender identity does not match their sex assigned at birth. Gender dysphoria is a diagnosis that applies to some, but not all, transgender people. 11. Transgender children typically consistently, persistently, and insistently feel and express a gender identity that is different from their sex assigned at birth. They may begin talking about their gender as soon as they begin to speak and some may express dissatisfaction with their genitals.
a. Transgender children are likely to experience gender dysphoria (i.e., distress related to their bodies not matching their gender identity). A pervasive, consistent, persistent and insistent sense of being another gender than the one assigned at birth and some degree of gender dysphoria are unique characteristics of transgender children. Transgender children may state that they are not their sex assigned at birth, or that someone (e.g., the doctor or a religious authority) made a mistake in their gender assignment.
b. The prevalence of children identifying as transgender is uncertain due to a lack of reliable data (i.e. fear of familial and societal rejection keeps some transgender people in the closet). Some studies estimate that 5 to 12% of girls and 2 to 6% of boys exhibit behavior traditionally inconsistent with their sex assigned at birth. Gender identification often begins around two years of age. The prevalence of gender identification through adolescence and adulthood is more likely to persist for individuals who first demonstrated gender dysphoria as toddlers.
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12. Transgender adolescents typically consistently, persistently, and insistently feel and express a gender identity that is different from their sex assigned at birth. Transgender adolescents are likely to experience gender dysphoria. While many transgender adolescents have expressed their gender since they were old enough to talk, still many others do not realize their feelings about their gender until around puberty or even later. a. Transgender adolescents often desire to make a social, legal, or medical gender transition while in school. b. Transgender adolescents are not part of a “new” phenomenon. History suggests that they have existed in a wide range of cultures for thousands of years. Psychologists believe that by adolescence, a person’s gender identity is very resistant, if not immutable, to any type of intervention. The prevalence of transgender adolescents is uncertain. Some research suggests that transgender youth may be as prevalent as 0.5%. c. Transgender adolescents may begin to seek therapy and consider hormone therapy and other methods to suppress the onset of puberty associated with their sex assigned at birth. Gender dysphoria that continues through the onset of puberty or increases at puberty is unlikely to desist. Early medical intervention to treat gender dysphoria is often be recommended by medical professionals for these youth.
13. Numerous medical professionals have opined that living in a manner consistent with one’s gender identity is critical to the health and well-being of transgender people, including children and adolescents. a. The process by which transgender people come to live in a manner consistent with their gender identity, rather than their birth-assigned sex, is known as transition.
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b. Social transition involves shifting one’s presentation and social functioning so that it is consistent with one’s gender identity. Social transition is a part of necessary medical treatment for many transgender people with gender dysphoria.
14. Transgender adolescents experience rates of anxiety, depression and suicide that are dramatically higher than those among cisgender (i.e. non-transgender) adolescents. This is most likely tied to years of discrimination, internal conflict and rejection from social environments. Transgender children experience victimization from peers, are often worried about puberty, may be hiding their identities outside their homes, and are aware that their bodies are different from the bodies of children of the gender with which they identify.
15. Transgender adolescents, like transgender adults, often experience discrimination, ranging from subtle to severe, when accessing housing, health care, employment, education, public assistance, and other social services. This discrimination often includes assuming a person’s assigned sex at birth is fully aligned with that person’s gender identity, not using a person’s preferred name or pronouns, asking transgender people inappropriate questions about their bodies, or making the assumption that psychopathology exists given a specific gender identity or gender expression.
16. Studies have found that transgender adolescents, like transgender adults, are at risk of experiencing prejudice and discrimination in educational settings. a. In a 2014 study, over half of transgender children in a K-12 setting reported verbal harassment and over one-fifth reported physical harassment based on their gender expression. (Kosciw, Greytak, Palmer, & Boesen, 2014). b. In a 2011 study, approximately 15% of transgender adults reported prematurely leaving educational settings ranging from kindergarten through college as a result of harassment (Grant et al., 2011). This study found that, as a result of discrimination and education
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disparities, transgender people were substantially more likely to have a household income of less than $10,000. c. A 2011 study has suggested that employment discrimination for transgender people may be related to stigma based on a transgender person’s appearance, discrepancies in identity documentation, or being unable to provide job references linked to that person’s pretransition name or gender presentation. (Bender-Baird, 2011). 17. Social transitioning is important to transgender adolescents and can alleviate some of the risks and harms faced by transgender people. a. Once children are old enough to know that they identify with a gender different from the one they were born with, current medial thinking supports a “social transition” that includes the use of pronouns that matched the child’s gender identity, calling them by the name of their choosing and allowing them to change their hairstyle and clothing to reflect their identity b. A recent study published in journal Pediatrics, found normal levels of depression and only slightly elevated anxiety levels in transgender children who were supported by their families in a social transition, including calling them by the name of their choosing. 18. Calling transgender children by the name of their choosing is likely to alleviate the harm caused by discrimination in accessing housing, health care, employment, education, public assistance, and other social services. 19. A legal name change is necessary to allow transgender children full access to housing, health care, employment, education, public assistance, and other social services. a. Government and social service agencies often require a legal name change. Transgender children often face difficulties when presenting legal documents that don't match their chosen name or gender identity.
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b. In order to update the name and/or gender on an Ohio ID or driver’s license, a transgender person must submit a court order certifying the name change. If changing only the gender marker, a BMV Declaration of Gender Change form signed by a physician or psychologist/licensed therapist certifying the applicant's gender identity may be submitted.
c. Ohio recently enacted new guidelines to obtain a state-issued driver’s license or other credential for access to federal facilities or services, such as airport security screening by the Transportation Safety Administration. Ohio residents seeking such a document are required to provide documentation proving their name and date of birth, such as a Social Security card, birth certificate or passport and additional documents proving residential address. i. If a resident’s current name is not the same as the name listed on a resident’s birth certificate, a resident must provide a certified copy of a court order granting the name change in order to obtain a compliant identification. ii. The State of Ohio refuses to correct the gender markers on transgender people’s birth certificates regardless of what steps a person may have taken in order to obtain recognition of their gender identity. A number of transgender people have challenged the constitutionality of this refusal in this Court. Ray v. Himes, S.D. Ohio No. 2:18-cv-00272-MHW.
20. Many transgender people are typically perceived by others accurately and consistent with their gender identity. A transgender person who has official documents, such as a driver’s license or school records, with an incorrect name is burdened with an identity that conflicts not only with the person’s gender, but also with how others perceive the person. A mismatch between a transgender person’s chosen name, gender identity, or name on official documents can subject
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that person to harms, including interference with the person’s ability to pass background checks and obtain benefits that persons without such a mismatch routinely enjoy. 21. Denying transgender people the ability to change their names to a name that matches their gender identity reveals private information in contexts where this information would otherwise remain undisclosed (e.g., at a new job), regardless of whether a person’s transgender identity may otherwise be known by others (e.g., to friends or family), and regardless of a person’s desire not to disclose that personal information.
a. Transgender people denied the ability to change their names are deprived of significant control over the circumstances surrounding disclosure of their transgender identity, including when, where, how, and to whom their transgender identity is disclosed.
b. The ability to exercise control over the circumstances surrounding disclosure of their transgender identity, including when, where, how, and to whom their transgender identity is disclosed, is important because transgender people are often subjected to violence or harassment.
22. To obtain a legal name change in Ohio, an applicant must submit a petition to the court. a. Ohio Rev. Code § 2717.01 provides that at least 30 days before the hearing, the applicant must publish notice of the hearing in a newspaper, though publication requirements can be waived for the applicant’s personal safety. i. Depending on the nature of the offense, applicants with prior criminal convictions may not be eligible for a name change. ii. An application for change of name may be made on behalf of a minor by either of the minor’s parents, a legal guardian, or a guardian ad litem.
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b. The statute provides that that if the facts set forth in the application show reasonable and
proper cause for changing the name of the applicant, the court may order the change of
name.
c. The Ohio Supreme Court has instructed that when deciding whether to permit a name
change for a minor child pursuant to R.C. 2717.01(A), a court must consider the best
interest of the child in determining whether reasonable and proper cause has been
established. In re Willhite, 85 Ohio St.3d 28, 32, 1999-Ohio-201.
i. Most of the factors, however, that the court is to consider deal with the change of
a minor child’s surname, not first name, and, as a result, have no relevance to the
name change of a transgender child. These name change requests typically arise
in the context of divorce or custody proceedings.
ii. The Ohio Supreme Court in In re Willhite said:
[I]n determining whether a change of a minor's surname is in the best interest of the child, the trial court should consider the following factors: the effect of the change on the preservation and development of the child's relationship with each parent; the identification of the child as part of a family unit; the length of time that the child has used a surname; the preference of the child if the child is of sufficient maturity to express a meaningful preference; whether the child's surname is different from the surname of the child's residential parent; the embarrassment, discomfort, or inconvenience that may result when a child bears a surname different from the residential parent's; parental failure to maintain contact with and support of the child; and any other factor relevant to the child's best interest.
d. In the context of name changes unrelated to a child’s surname, Ohio courts have held:
A court should deny a change of name if the change would involve a potential for fraud, if it would interfere with the rights of others, if the change would permit the applicant to avoid a legal duty, or if the change was in some way contrary to the strong public policy of the state.
In re Wurgler, 136 Ohio Misc.2d 1, 2005-Ohio-7139, ¶ 11.
23. There is no government justification to support a refusal to provide transgender children with a
name change as part of social transitioning. 10

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PLAINTIFFS NAME CHANGE APPLICATION
24. Whitaker filed for Elliott’s name change on April 24, 2018. 25. Both parents consented to the legal name change to reflect Elliott’s correct gender identity after
consulting with multiple medical professionals and discussing it with their child. a. Elliott sought medical treatment due to anxiety and depression. He is now under the care of Dr. Lee Ann Conard at the Cincinnati Children’s Medical Center and Marcy Marklay, an LPCC from the Lindner Center. b. Dr. Conard strongly supports the petition for Elliot’s legal name change because changing his legal name is a critical component to mitigate depression, anxiety, and suicidal ideations/attempts often present in the transgender population. c. Elliott sought a name change because his legal name is on numerous documents at school, which “outs” him to staff and students. His legal name will also be on his passport, driver’s license, college applications, etc. d. Elliott is not seeking the name change for purposes of fraud. Elliott’s name change would not interfere with the rights of others or permit Elliott to avoid a legal duty. Elliott’s name change is not contrary to the strong public policy of the state of Ohio.
26. Whitaker, along with Elliott and her husband, appeared for a hearing before Judge Kirby on June 18, 2018. A transcript of the hearing is attached as Exhibit A. a. Whitaker explained to the court that she believed, based on the advice she had received from medical professionals, that a name change was in Elliott’s best interest: MS. S. WHITAKER: Um, we have been going to therapy for about a year now, and, and, we are, um we’ve been to Children’s Hospital and, un, gone through all of the uh things that we feel like we should go through, and, we’re convinced that it’s in Elliot’s best interest to change his name. THE COURT: Was there a diagnosis of . . .? . . . MS. S. WHITAKER: Gender Dysphoria
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(Tr. p. 5-6.) b. Whitaker also had a letter from a medical professional explaining the treatment being
received by Elliot. (Tr. p. 6.) Whitaker told Judge Kirby, “we have gone through a lot of therapy to convince us that it’s not just a passing phase or fad.” (Tr. p. 15.) c. Whitaker explained to Judge Kirby that Elliot’s school, although supportive, in unable to change permanent records without a court order approving the name change. Elliott testified:
[ELLIOT] WHITAKER: The school can’t change my name in, um, the system like on their computers, and, so without it being like legally changed. So all the substitutes get the old list where my name is my birth name and, just all legal documents, and, prescriptions, and everything has to have my birth name on it. (Tr. p. 18.) Whitaker’s husband told Judge Kirby that the name change was necessary for college applications and “emergency situations.” (Tr. p. 19.) d. Judge Kirby made a number of inquiries concerning the history of Elliot’s expression of his gender and asked about Elliot’s counseling and potential hormone treatment. (Tr. p. 11, 14.) e. Judge Kirby asked personal and irrelevant questions, such as whether Elliott was considering gender reassignment surgery or whether he was sexually attracted to women. (Tr. p. 18, 22.) Judge Kirby also asked a series of questions about which restroom Elliot used at school: THE COURT: . . . I am not allowed into a female’s restroom, right? I mean it’s just, I would probably get in trouble or at least called out on it if I did, okay. Is the same as true if somebody who associates themselves as male? Uh, can she go into the male’s restroom? MS. S. WHITAKER: . . . Elliot uses an, um, non-gendered bathroom. (Tr. p. 20.) f. Judge Kirby suggested that Elliott’s expression of his gender identity was not sincere but, instead, was the result of exposure of media coverage of the transition by Caitlyn Jenner.
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THE COURT: Well explain to me the process? When did you, uh, when did Heidi come to you and tell you that she, she associates herself as a boy? MS. S. WHITAKER: About a year, and, a half ago MR. WHITAKER: In, in August MS. S. WHITAKER: Yes. MR. WHITAKER: It was actually last August. THE COURT: Kind of when he [Caitlyn Jenner] made the papers, and, everybody was, was, doing it kind of thing? MS. S. WHITAKER: No I don’t believe so. THE COURT: Was it about the time that it kind of made headlines about a year, and, a half ago? . . . Everybody was talking about all the transgender transformations were coming out in the paper?
(T. p. 6-7.) Later in the hearing, Judge Kirby returned to this line on inquiry:
THE COURT: So a year, and, a half your parents knew, and, the world knew, how long have you known? [ELLIOT] WHITAKER: Um, there’s always been like a feeling of distress about it like from as far back as I can remember really . . . But then around when I learned that you can be transgender I, I kind of clicked, and, you know I was like that’s what I was like upset about. That I wanted to be a boy but I couldn’t. THE COURT: That’s what I was referring to a couple years ago when it hit the papers, and, people were starting, they were identifying themselves or associating themselves with it. Uh, because it was not something that people were talking about. MS. S. WHITAKER: I guess that never struck me because I’ve known transgender people since I was a kid . . . THE COURT: But weren’t they just known as cross-dressers back then or did they actually go through the physical? . . . I just look at Bruce Jenner set the stage nationally for it, maybe even . . . [a]ll over the world.
(Tr. p. 22-23.)
27. Judge Kirby denied Elliott’s name change application on June 22, 2018 stating that they cannot
apply for a name change again until the minor becomes an “adult.” A copy of the decision denying
the name change is attached as Exhibit B.
a. In his decision, Judge Kirby said:
The Court is sympathetic to the parents of the child and their desire to assuage their child. In essence, the Court isn’t say “no” to the name change. The Court is simply saying “not yet.” Age. Develop. Mature.
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And take advantage of your common-law right to use the name you are petitioning for in the meantime, so long as it’s not for fraudulent purposes. b. In his decision, Judge Kirby did not find that the name change would involve a potential for fraud, it would interfere with the rights of others, would permit the applicant to avoid a legal duty, or was in some way contrary to the strong public policy of the state 28. Shaul filed for James’ name change on May 4, 2018. A hearing is scheduled on the application; no decision has been rendered. 29. Both parents consented to the legal name change to reflect James’ correct gender identity after consulting with multiple medical professionals and discussing it with their child. a. James sought medical treatment due to anxiety and depression. He is now under the care of Dr. Lee Ann Conard at the Cincinnati Children’s Medical Center and Dr. Hillary Wishnick, a clinical psychologist. b. Dr. Wishnick strongly supports the petition for James’ legal name change because changing his legal name is a critical component to mitigate depression, anxiety, and suicidal ideations/attempts often present in the transgender population. Dr. Wishnick states that James “consistently presents himself as male in all settings including work, school and with family and friends.” Dr. Wishnick also conducted a biopsychosocial assessment and determined that there is no significant impairment in James’ insight, impulsivity, or decision-making ability. c. James sought a name change because his legal name is on numerous documents at school, which “outs” him to staff and students. His legal name will also be on his passport, driver’s license, college applications, etc. d. James is not seeking the name change for purposes of fraud. James’ name change would not interfere with the rights of others or permit James to avoid a legal duty. James’ name change is not contrary to the strong public policy of the state of Ohio.
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30. Jane Doe intends to file to a John Doe’s name change in Warren County Common Pleas court. a. John Doe sought medical treatment due to anxiety and depression. Doe is now under the care of Dr. Conard at the Cincinnati Children’s Medical Center. Doe has been living as the correct gender identity and going by their new name since 2015. b. Dr. Conard strongly supports the petition for Doe’s legal name change because changing their legal name is a critical component to mitigate depression, anxiety, and suicidal ideations/attempts often present in the transgender population. c. John Doe seeks a legal name change because their legal name is on numerous documents at school, which “outs” them to staff and students. Doe’s legal name will also be on their passport, driver’s license, college applications, etc. d. John Doe is not seeking the name change for purposes of fraud. John Doe’s name change would not interfere with the rights of others or permit John Doe to avoid a legal duty. John Doe’s name change is not contrary to the strong public policy of the state of Ohio.
31. Plaintiff Doe has not filed for the name change because she fears unequal and embarrassing treatment by Judge Kirby.
PATTERN AND PRACTICE
32. Judge Kirby has a pattern and practice of treating name change requests from transgender adolescents differently than other name change requests.
33. On the same day that Judge Kirby denied Whitaker’s name change request, Judge Kirby denied two other transgender teen name change applications See Warren Count No. 2018-1955; Warren County No.. 2018-9045. Redacted copies of these decisions are attached as Exhibits C and D. Judge Kirby used identical language in denying all of the name change requests from transgender adolescents.
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34. The name change applications review by the Warren County Common Pleas Court, ProbateJuvenile Division, in 2018 are summarized in this table:

Case # 20189085 20189084 20189083 20189082 20189078 20189077 20189076 20189075 20189073 20189069 20189061 20189060 20189059 20189055 20189054 20189052 20189050 20189049 20189045 20189043 20189042

File Date Disposition 5/21/2018 Granted 5/16/2018 Granted 5/11/2018 Granted 5/10/2018 Granted 5/4/2018 Granted 5/2/2018 Granted 5/2/2018 Granted 4/25/2018 Granted 4/24/2018 Denied 4/12/2018 Granted 3/30/2018 Granted 3/30/2018 Granted 3/30/2018 Granted 3/27/2018 Denied 3/23/2018 Granted 3/21/2018 Granted 3/19/2018 Granted 3/19/2018 Granted 3/13/2018 Denied 3/9/2018 Granted 3/6/2018 Granted

Transgender No No No No No No No Transgender (Adult) Transgender Minor No No No Transgender (Adult) Transgender Minor No Transgender (Adult) No No Transgender Minor No No

Hearing Officer Magistrate Magistrate Magistrate Magistrate Magistrate Magistrate Magistrate Judge Kirby Judge Kirby Magistrate Magistrate Magistrate Judge Kirby Judge Kirby Magistrate Judge Kirby Magistrate Magistrate Judge Kirby Magistrate Magistrate

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Case # 20189040 20189039 20189036 20189035 20189034 20189030 20189028 20189026 20189016 20189015 20189013 20189009 20189005 20189002 20189001

File Date Disposition 3/5/2018 Granted 3/5/2018 Granted 3/2/2018 Granted 3/2/2018 Granted 3/2/2018 Granted 2/23/2018 Denied 2/21/2018 Granted 2/15/2018 Granted 2/5/2018 Granted 2/2/2018 Granted 1/26/2018 Granted 1/19/2018 Granted 1/5/2018 Granted 1/2/2018 Granted 1/2/2018 Granted

Transgender No No No No No No Transgender Minor Transgender (Adult) Transgender (Adult) Transgender (Adult) No No No No No

Hearing Officer Magistrate Magistrate Magistrate Magistrate Magistrate Magistrate Magistrate Judge Kirby Judge Kirby Judge Kirby Magistrate Magistrate Magistrate Magistrate Magistrate

35. A review of the 2018 name change applications by the Warren County Common Pleas Court, Probate-Juvenile Division, in 2018, shows that Judge Kirby has a pattern and practice of treating name change applications by adolescents differently than other name change applications. a. On information and belief, Judge Kirby has instructed that all name change applications from transgender persons be assigned to his docket for a hearing. Typically, name change application hearings are conducted by a magistrate judge. Judge Kirby has not conducted any name change hearings for non-transgender individuals.
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b. In 2018, Judge Kirby has denied each and every name change applications by transgender adolescents when he conducted the hearing. The only name change application by a transgender adolescent approved by the Warren County Common Pleas Court, ProbateJuvenile Division in 2018 was after a hearing conducted by a magistrate judge.
36. On information and belief, Judge Kirby has demonstrated animosity towards transgender adolescents seeking a name change without any rational basis. a. Judge Kirby has ignored evidence presented by the parties from medical professionals suggesting that the name change is in the best interest of the child. Instead, Judge Kirby has substituted his own archaic views. a. The questioning by the Court in the Whitaker matter demonstrates that Judge Kirby is unwilling to accept the view of professionals that gender identity may be expressed by adolescents and that by adolescence, a person’s gender identity is very resistant to any type of intervention. Instead, Judge Kirby expressed a belief – based on no evidence in the record – that the adolescents seeking a name change are motivated because they saw Caitlyn Jenner on television. b. Judge Kirby is not making an individualized determination about the best interest of each child but, instead, is motivated pre-existing notions about towards transgender individuals. Instead, Judge Kirby relied on sex stereotyping based on a perception that the behavior of transgender adolescents transgresses gender stereotypes. c. Judge Kirby did not make any findings that the name changes sought by transgender adolescents would involve a potential for fraud, would interfere with the rights of others, would permit the applicant to avoid a legal duty, or were in some way contrary to the strong public policy of the state of Ohio.
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37. Judge Kirby’s actions against are causing, or are likely to cause, substantial, immediate, and continuing damages to Plaintiffs’ children because changing their legal names is a critical component to mitigate depression, anxiety, and suicidal ideations/attempts. COUNT I (DECLARATORY JUDGMENT – VIOLATION OF EQUAL PROTECTION PROVISIONS OF UNITED STATES CONSTITUTION)
38. Plaintiff repeats and incorporates all of the allegations of this Complaint, as if fully set forth herein. 39. The Fourteenth Amendment to the United States Constitution provides that no state shall “deny
to any person within its jurisdiction the equal protection of the laws.” 40. Judge Kirby has facially and intentionally discriminated against transgender people based on sex.
By not permitting transgender adolescents to use a name that fits their gender identity, the court in maintaining a classification reflecting sex contrary to their gender identity, causing harm as a result. 41. Discrimination based on sex-related considerations also includes, but is not limited to, discrimination based on gender nonconformity, gender identity, transgender status, and gender transition. 42. Plaintiff, acting as individual “classes of one” have been treated by the Defendant differently from others similarly situated without a rational basis for doing so. Judge Kirby violated the Equal Protection Clause's prohibition against sex-based discrimination when the judge treated transgender adolescents unfavorably because of their gender identity. 43. Discrimination because a person is transgender is discrimination based on a sex-related consideration, which requires courts to apply intermediate scrutiny when evaluating the constitutionality of Judge Kirby’s actions. 44. Alternatively, discrimination because a person is transgender requires courts to apply strict scrutiny when evaluating the constitutionality of Judge Kirby’s actions. Government discrimination against
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transgender people because of their transgender identity bears the indicia of a suspect classification requiring strict scrutiny by the courts. Transgender people have suffered a long history of extreme discrimination and continue to suffer such discrimination to this day. Transgender people are a discrete and insular group and lack the political power to protect their rights through the legislative process. Transgender people are a relatively small minority, and have had limited success securing express federal, state, and local protections specifically protecting them against discrimination, and have been and continue to be regularly targeted by anti-transgender legislation, regulations, bills, and other government action. 45. Judge Kirby has facially and intentionally discriminated against the Plaintiffs in violation of the Equal Protection guarantees of the 14th Amendment on the basis of sex and transgender status by depriving transgender adolescents the ability to change their name. Non-transgender adolescents are not deprived of this ability to change their names. 46. Defendant’s actions deny transgender people, including Plaintiffs, access to legal documents and the ability to legally change their names. Defendant’s refusal to allow transgender children to change their legal name erects a barrier to the full recognition, participation, and inclusion of transgender people in society and subjects them to discrimination, privacy invasions, harassment, humiliation, stigma, harm to their health, and even violence. 47. Plaintiffs are entitled to a declaratory judgment that Judge Kirby has violated Plaintiffs’ right to Equal Protection guaranteed by the Fourteenth Amendment to the United States Constitution. 48. Pursuant to 42 U.S.C. §1988, Plaintiffs are entitled to her attorney’s fees incurred in bringing this action.
COUNT II (DECLARATORY JUDGMENT -- 42 U.S.C. §1983) 49. Plaintiffs repeat and incorporate all of the allegations of this Complaint, as if fully set forth herein.
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50. Judge Kirby violated the Equal Protection Clause's prohibition against sex-based discrimination when the judge treated transgender adolescents unfavorably because of gender non-conformity.
51. Plaintiffs are entitled to a declaratory judgment that Judge Kirby has violated 42 U.S.C. §1983. 52. Pursuant to 42 U.S.C. §1988, Plaintiff is entitled to her attorney’s fees incurred in bringing this
action. PRAYER FOR RELIEF
Plaintiff respectfully requests the following relief: • Judgment Declaring that Defendant has violated Plaintiffs’ right to Equal Protection guaranteed by the Fourteenth Amendment to the United States Constitution and prohibiting further violations. • Judgment Declaring that Defendant has violated 42 U.S.C. §1983 and prohibiting further violations. • Court costs and other reasonable expenses incurred in maintaining this action, including reasonable attorney’s fees as authorized by 42 U.S.C. §1988.
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Respectfully submitted,
/s/ Joshua R Langdon Joshua R. Langdon, Ohio Bar #90956 Josh Langdon, LLC 810 Sycamore Street, Fl. 2 Cincinnati, Ohio 45202 Phone: (513) 246-1400 Fax: (513) 263-9000 E-mail: josh@joshlangdon.com /s/ Joshua A Engel Joshua Adam Engel (0075769) Anne Tamashasky (0064393) ENGEL AND MARTIN, LLC 4660 Duke Drive, Ste. 101 Mason, OH 45040 (513) 445-9600 (513) 492-8989 (Fax) engel@engelandmartin.com
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EXHIBIT A

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IN THE COURT OF COMMON PLEAS
WARREN COUNTY, OHIO
PROBATE DIVISION

WARRENEXCOH. IPRBOBIATTE

B
COURT

2018 JUN 22 M11O: /6

In the matter of
Change of Name of
Heidi Claire Whitaker

Case No. 20189073
Judge Kirby

This matter is before the Court on an Application

for Change of Name of Minor,

filed with the Court on April 24, 2018. Mother wishes to change the child's

name from

Heidi Claire Whitaker

to a male name, Elliott

John Whitaker,

because the child identifies

herselfl

as a transgender

male. The child was born female. Mother and Father filed their

Consent to Change of Name. The Court published

Notice in the Journal-News

Pulse of

Lebanon and Mason. The Court heard testimony

from Mother and the child, whose date

of birth is May 19,2003.

For the reasons

stated

and proper and in the child's

below, the Court cannot

best interest

at this time.

find the name change

as reasonable

FACTS

Heidi is 15 years old and has been in therapy for approximately

one year.

She has

been diagnosed

as having Gender Dysphoria

and receives counseling

through the Lindner

Center and is treated medical y

by Dr. Conard from the Cincinnati

Children's

Hospital

Medical

Center.

She first realized

she was transgender

in the Spring of2017 and started

to cut her hair and wear boy clothes.

Due to anxiety and being depressed,

she was

advised to seek out a specialist

who deals with adolescent

transgender

issues.

She

availed herself of Marcy Marklay,

an LPCC from the Lindner

Center.

She has met with

Ms. Marklay

twenty times.

Heidi denies any suicidal

ideations

or recent hospitalizations.

Heidi
taken place
administered
puberty.

has met with Dr. Conard on three separate

occasions

to get a base-line

for hormonal

levels.

Testosterone

beginning

July 13,2018.

This will artificialy

put

and blood draws have

is anticipated

to be

her body through male

I The Court is aware of the fact that using a pronoun

as it pertains

to a person's

sex (which is their biological

characteristics)

as opposed to a pronoun for a person's

gender (which is that person's

social identity)

is offensive

to

the transgender

community.

As a compromise,

the Court attempted

to utilize the singular,

gender-neutral

third

person "they" pronoun in place ofhim/her

and she/him,

as introduced

by the Associated

Press' Stylebook;

however,

it made the entry difficult

to read and comprehend.

Therefore,

the Court opted to use the pronoun

associated

with

the child's

sex and not their preferred

gender. No disrespect

is meant to the child in this decision.

COMPUTER

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Heidi is aware that some of the hormonal

therapies

are permanent

in nature and

are irreversible.

She realizes

that she is already called Eliott,

but there are some

instances

in which her birth name Heidi is and will be used: her school stilI uses her birth

name on their official

rosters and yearbooks,

substitute

teachers

call her by her birth

name, her driver's

license

future passport applications

will have her birth name once she applies

and colege applications

she makes will

for one, and any have her birth name

as well.

By granting

her a legal name change, it will help resolve some ofthe feelings

of

distress that accompanies

her use of her birth name.

LAW

At common-law,

a person

has always

been able to assume

any name he or she wishes

so

long as taking the name is not for fraudulent

purposes.

A name change authorized

by a court,

however,

is a different

matter.

Changing

a name through judicial

decree implies

an official

consideration

and ajudicial

endorsement

of the new name. In re Wurgler,

136 Ohio Misc. 2d 1,

2005-0hio-7139,

844 N.E.2d 919, 2005 Ohio Misc. LEXIS 601 (Ohio c.r. July 12,2005).

It is

the Probate Division

of the Court of Common Pleas that is endowed with the exclusive

jurisdiction

to change the legal name of a person,

is found in R.C. 2717.01.

be they an adult or a minor,

and that authority

A name change for a minor may be requested

by either of the minor's

parents,

the child's

legal guardian,

or a guardian

ad litem. Id When application

is made on behalf of a minor, in

addition

to the notice and proof required

pursuant to division

(A) of this section,

the consent

of

both living, legal parents of the minor shall be filed, or notice of the hearing shall be given to the

parent or parents not consenting

by certified

mail, return receipt requested.

Id.

The Court must consider

the best interest

of the child in determining

and proper cause exists when deciding

whether to permit a name change for

pursuant

to RC 2717.0 leA). In re Wil hite,

85 Ohio St. 3d 28; 1999-0hio-201,

Wil hite,

the Ohio Supreme Court held that when determining

the best interest

whether reasonable a minor child
Syl abus 1. In
ofthe child,

the trial court should consider

the fol owing

factors:

the effect of the change

on the preservation

and development

of the child's relationship

with each

parent;

the identification

of the child as part of a family unit; the length of

time that the child has used a surname;

the preference

of the child if the child

is of sufficient

maturity

to express

a meaningful

preference;

whether

the

child's

surname

is different

from the surname

of the child's

residential

parent;

the embarrassment,

discomfort,

or inconvenience

that may result

when a

child bears a surname

different

from the residential

parent's;

parental

failure

to maintain

contact

with and support

of the child;

and any other factor

relevant

to the child's best interest.

Id. Syl abus

2, citing Bobo v. Jewell (1988) 38 Ohio St. 3d 330, paragraph

2 of the sylabus.

Case: 1:18-cv-00540-WOB Doc #: 1 Filed: 08/03/18 Page: 51 of 60 PAGEID #: 51

DECISION

Adolescence

is a time of fevered identity exploration.

In addition,

adolescents

can become fixated

on their immediate

desires and far too often lack the ability to ful y

appreciate

the long-term

effects of their decisions.

It is general y

well-known

and not

seriously

contested

that adolescent

minds and bodies don't ful y develop during their

minority

and they are unable to cognitively

and emotional y

make adult-like

decisions.

Here the Court is faced with a request from a 15-year-old

maturity, knowledge,

and stability

to make this decision.

who lacks the age,

Whether Heidi is experiencing

Gender Dysphoria

or is just not comfortable

with

her body is something

that only time will reveal.

Is Heidi's

distress

brought about by

confusion,

peer pressure,

or other non-transgender

issues -- or is it truly a mismatch

between her gender identity and her body? Children change significantly

and rapidly.

A

name change request today by a child could be motivated

by short-term

desires

or beliefs

that may change over the passage of time as the child matures.

The Court recognizes

the

reality that Heidi's brain is stil growing and changing,

and is simply not ready to make

this life-altering

decision.

The Court is sympathetic

their child.

In essence,

the Court

simply saying "not yet."

to the parents
isn't saying

of the child and their desire to assuage

"no" to the name change.

The Court is

Age.

Develop.
Mature.

petitioning
Court

And take for in
again once

advantage

of your common-law

the meantime,

so long as it's

you become an adult.

right to use the name you are

not for fraudulent

purposes.

Then,

ask this

Based upon the foregoing,

the Court finds the application

minor to be NOT WELL TAKEN and hereby DENIED.

for change of name of a

It is so ordered.

Distribution:
Stephanie

Whitaker,

Applicant

y, Judge

CERTIFICATE

lat r ?ereby
this

certity .? '20-

I have
day of

? ")"?
mailed by 0 ?

20A

mail a "ee.n:i\itrue of the foregoing

opy" instrument

tc? a.1I parties named in

dlstnm?

Deputy Clerk

Case: 1:18-cv-00540-WOB Doc #: 1 Filed: 08/03/18 Page: 52 of 60 PAGEID #: 52

PARTIES

AREADVISED

OF THEIR RIGHT TO APPEALTIDS

DECISION.

ANY

APPEAL OF THIS CASE MUST BE J!ILED WITH THE TWELFTH

DISTRICT

COURT

OF APPEALS

BY FILING

SAME WITH THIS COURT WITHIN

THE TIME FRAMES

AS 8.ET FORTH IN THE OHIO RULES OF APPELLATE

PROCEDURE.

HOWEVER,

.A PARTY SHALL NOT ASSIGN AS ERROR ON APPEAL THE COURT'S

ADOPTION'

OF ANY FINDING

OF FACT OR LEGAL CONCLUSION,

WHETHER OR NOT

·SPECIFICALLY

DESIGNATED

A FINDING

OF FACt OR CONCLUSION

OF LAW

UNDER CIV. R. 53(D)(3)(a)(i )

OR JUV. R. 40(D)(3)(a)(i),

UNLESS THE PARTY

TIMELY AND SPECIFICALLY

OBJECTS TO THAT FACTUAL

FINDING

OR LEGAL

C0N:CLUSIQN

AS REQUIRED Br CIV. R. 53(D)(3)(b)

OR ruv, R. 40(D)(3)(b).

Case: 1:18-cv-00540-WOB Doc #: 1 Filed: 08/03/18 Page: 53 of 60 PAGEID #: 53
/'-"

IN THE COURT OF COMMON PLEAS
WARREN COUNTY, OHIO
PROBATE DIVISION

WARREN

E.' CXO HPRIOBD?AITTE

C
COURT

,2018 JUN 22 MilO: f 4

In the matter of
Change of Name of Chloe Joann Holtkamp

Case No. 20189045
Judge Kirby

This matter is before the Court on an Application

for Change of Name of Minor,

filed March 13,2018.

Mother wishes to change the child's

name from Chloe Joann

Holtkamp

to a male name, Kevin Dennis Holtkamp,

because the child identifies

herself

I

as a transgender

male. The child was born female. Mother and Father filed their Consent

to Change of Name. The Court published

Notice in the Journal-News

Pulse of Lebanon

and Mason. The Court heard testimony

from Mother and the child, whose date of birth is

October 8, 2003.

For the reasons

stated

and proper and in the child's

below, the Court cannot

best interest

at this time.

find the name change

as reasonable

FACTS

Chloe is 14 years old and has been diagnosed

with Gender Dysphoria

- her brain

does not recognize

her body is female.

going into the 9th grade. She is called

She attends Little Miami High School and is

"Kevin"

by her family,

doctor and school.

She

wants her name changed

in order to ease any confusion

when she goes to get a passport

and driver's

license.

She has associated

herself

as a male since she was 11 or 12 years

old.

She was hospitalized

one time at Children's

Hospital and has not yet begun

hormonal therapy.

All she has received

were hormonal

blockers

and she receives

those

every three months.

She has experienced

some depression,

but claims that is just

something

that runs in her family.

Her bout with it was prior to the onset of her

transgender

diagnosis.

Medically,

no physical

alterations

will be taken until she turns 18,

if need be.

I The Court is aware of the fact that using a pronoun

as it pertains

to a person's.

sex (which is their biological

characteristics)

as opposed to a pronoun for a person's gender (which is that person's social identity)

is offensive

to

the transgender

community.

As a compromise,

the Court attempted

to utilize the singular,

gender-neutral

third

person "they" pronoun in place ofhimlher

and shelhim,

as introduced

by the Associated

Press' Stylebook;

however,

it made the entry difficult

to read and comprehend.

Therefore,

the Court opted to use the pronoun associated

with

the child's

sex and not their preferred

gender. No disrespect

is meant to the child in this decision.

SCAN
COMPUTER

Case: 1:18-cv-00540-WOB Doc #: 1 Filed: 08/03/18 Page: 54 of 60 PAGEID #: 54

LAW

At common-law,

a person

has always

been able to assume any name he or she wishes

so

long as taking the name is not for fraudulent

purposes.

A name change authorized

by a court,

however,

is a different

matter.

Changing

a name through judicial

decree implies an official

consideration
2005-0hio-7139,

and a judicial

endorsement

of the new name. In re Wurgler,

136 Ohio Misc. 2d 1,

844 N.E.2d 919, 2005 Ohio Misc. LEXIS 601 (Ohio C.P. July 12,2005).

It is

the Probate Division

of the Court of Common Pleas that is endowed with the exclusive

jurisdiction

to change the legal name of a person, be they an adult or a minor, and that authority

is found in R.C. 2717.01.

A name change for a minor may be requested

by either of the minor's

parents,

the child's

legal guardian,

or a guardian

ad litem. Id. When application

is made on behalf of a minor, in

addition

to the notice and proof required

pursuant

to division

(A) of this section,

the consent

of

both living, legal parents of the minor shall be filed, or notice of the hearing shall be given to the

parent or parents not consenting

by certified

mail, return receipt requested.

Id.

The Court must consider

the best interest

of the child in determining

and proper cause exists when deciding

whether to permit a name change for

pursuant

to RC 2717.0 1 (A). In re Wil hite,

85 Ohio S1. 3d 28; 1999-0hio-201,

Wil hite,

the Ohio Supreme Court held that when determining

the best interest

whether

reasonable

a minor child

Syllabus

1. In

of the child,

the trial court should consider

the fol owing

factors:

the effect of the change

on the preservation

and development

of the child's relationship

with each

parent;

the identification

of the child as part of a family unit; the length of

time that the child has used a surname;

the preference

of the child if the child

is of sufficient

maturity

to express a meaningful

preference;

whether

the

child's

surname

is different

from the surname

of the child's

residential

parent;

the embarrassment,

discomfort,

or inconvenience

that may result

when a

child bears a surname

different

from the residential

parent's;

parental failure

to maintain

contact

with and support

of the child;

and any other factor

relevant

to the child's best interest.

Id. Syl abus

2, citing Bobo v. Jewell (1988) 38 Ohio St. 3d 330, paragraph
DECISION

2 of the sylabus.

Adolescence

is a time of fevered identity exploration.

In addition,

adolescents

can become fixated

on their immediate

desires and far too often lack the ability to ful y

appreciate

the long-term

effects of their decisions.

It is general y

well-known

and not

seriously

contested

that adolescent

minds and bodies don't fuly develop during their

minority

and they are unable to cognitively

and emotional y

make adult-like

decisions.

Here the Court is faced with a request from a 14-year-old

maturity, knowledge,

and stability

to make this decision.

who lacks the age,

SCAN

Case: 1:18-cv-00540-WOB Doc #: 1 Filed: 08/03/18 Page: 55 of 60 PAGEID #: 55
/"-""'-;.
)
, "'-,

Whether Chloe is experiencing

Gender Dysphoria

or is just not comfortable

with

her body is something

that only time will reveal.

Is Chloe's

distress

brought about by

confusion,

peer pressure,

or other non-transgender

issues -- or is it truly a mismatch

between her gender identity and her body? Children change significantly

and rapidly.

A

name change request today by a child could be motivated

by short-term

desires or beliefs

that may change over the passage

oftime

as the child matures.

The Court recognizes

the

reality that Chloe's brain is stil growing and changing,

and is simply not ready to make

this life-altering

decision.

The Court is sympathetic

their child.

In essence,

the Court

simply saying "not yet."

to the parents
isn't saying

ofthe child and their desire to assuage

"no" to the name change.

The Court is

Age.

Develop.

Mature.

petitioning
Court

And take advantage

of

for in the meantime,

again once you become

your common-law
so long as it's
an adult.

right to use the name you are

not for fraudulent

purposes.

Then,

ask this

Based upon the foregoing,

the Court finds the application

minor to be NOT WELL TAKEN and hereby DENIED.

for change of name of a

It is so ordered.

Distribution:
Denise Bels, Applicant

CERTIFICATE

r hereby certifY. that r have

this

'2-?

day of

.
mailed

v·?
by

mail a "certifie

of the foregoing
to all parties

,20lJL
?tfU??o ? " instrument named in

distrib?A:.£?,

Deputy Clerk

SCAN

Case: 1:18-cv-00540-WOB Doc #: 1 Filed: 08/03/18 Page: 56 of 60 PAGEID #: 56

,r-.
I

\

<:.

PARTIES

ARE ADVISED

OF THEIR RIGHT TO APPEAL THIS DECISION.

ANY

APPEAL OF TmS CASE MUST BE FILED WITH THE TWELFTH

DISTRICT

COURT

OF APPEALS

BY FILING

SAME WITH TmS COURT WITHIN

THE TIME FRAMES

AS SET FORTH IN THE OHIO RULES OF APPELLATE

PROCEDURE.

HOWEVER,

A PARTY SHALL NOT ASSIGN AS ERROR ON APPEAL THE COURT'S

ADOPTION

OF ANY FINDING

OF FACT OR LEGAL CONCLUSION,

WHETHER OR NOT .

SPECIFICALLY

DESIGNATED

A FINDING

OF FACT OR CONCLUSION

OF LAW'

UNDER CIV. R. 53(D)(3)(a)(i )
TIMELY AND SPECIFICALLY

OR JUV. R. 40(D)(3)(a)(i),

UNLESS THE PARTY

OBJECTS TO THAT FACTUAL

FINDING

OR LEGAL

CONCLUSION

AS REQUIRED BY CIV. R.53(D)(3)(b)

OR JUV. R. 40(D)(3)(b)

•.

SCAN

Case: 1:18-cv-00540-WOB Doc #: 1 Filed: 08/03/18 Page: 57 of 60 PAGEID #: 57

IN THE COURT OF COMMON PLEAS
WARREN COUNTY, OHIO
PROBATE DIVISION

, WARRENEXCHO. IPBROBIATTE D COURT
2018 JUN 22 MIlO: 12

In the matter of

Change of Name of

Giannella

Viviana Rodriguez

Case No. 20189055
Judge Kirby

This matter is before the Court on an Applicationfor

Change of Name of Minor,

filed with the Court on March 27, 2018. Mother wishes to change the child's

name from

Giannella identifies

Viviana
herself!

Rodriguez

to a male name, Jay Julien Rodriguez,

as a transgender

male. The child was born female.

because Mother

the child and Father

filed their Consent to Change of Name. The Court published

Notice in the Journal-Pulse

News of Lebanon and Mason. The Court heard testimony

from Mother and the child,

whose date of birth is March 19,2004.

For the reasons

stated

and proper and in the child's

below, the Court cannot

best interest

at this time.

find the name change

as reasonable

FACTS

Giannella

is 14 years old and is in going into the 9th grade at Mason High School.

Giannella

claims she began realizing

her Gender Dysphoria

two years ago. Although

born a female, she associates

herself to be a male. Medical y,

no steps have been taken.

She is currently

engaged in counseling

with a psychologist

in West Chester.

She

currently

goes by the name "Jay" in school,

home and with her doctor,

without

issue.

Her primary

concerns

are what names are listed on her passport

and her future

driver's

license.

Additional y,

she plans on taking the ACT soon and wants her name to

reflect her identity.

While the driver's

license

issue won't be present

for another

year and

a half, she has already experienced

some issues with her passport.

Her picture in her

passport

does not coincide

with her current physical

image.

I The Court is aware of the fact that using a pronoun

as it pertains

to a person's

sex (which is their biological

characteristics)

as opposed to a pronoun for a person's

gender (which is that person's

social identity)

is offensive

to

the transgender

community.

As a compromise,

the Court attempted

to utilize the singular,

gender-neutral

third

person "they" pronoun in place ofhimlher

and she/him,

as introduced

by the Associated

Press' Stylebook;

however,

it made the entry difficult

to read and comprehend.

Therefore,

the Court opted to use the pronoun

associated

with

the child's

sex and not their preferred

gender. No disrespect

is meant to the child in this decision.

Case: 1:18-cv-00540-WOB Doc #: 1 Filed: 08/03/18 Page: 58 of 60 PAGEID #: 58

f

,

)

'-- ..»

, --I

She already

uses the men's restroom.

Having her name changed to a boy's name

will help her with her day to day issues.

She doesn't like herself as a female.

Once

suicidal

two years ago, she was partial y

hospitalized

for three weeks at Cincinnati

Children's

Hospital.

After her second hospitalization,

she changed her appearance

and

started going by the name "Jay."

This has created less sadness in her life. Just having

her legal name being a female is upsetting,

let alone when someone calls her that. She

won't feel "complete"

until she is legaly recognized

to be "Jay."

LAW

At common-law,

a person

has always

been able to assume any name he or she wishes

so

long as taking the name is not for fraudulent

purposes.

A name change authorized

by a court,

however,

is a different

matter.

Changing

a name through judicial

decree implies an official

consideration

and ajudicial

endorsement

of the new name. In re Wurgler,

136 Ohio Misc. 2d 1,

2005-0hio-7139,

844 N.E.2d 919, 2005 Ohio Misc. LEXIS 601 (Ohio C.P. July 12,2005).

It is

the Probate Division

of the Court of Common Pleas that is endowed with the exclusive

jurisdiction

to change the legal name of a person, be they an adult or a minor, and that authority

is found in R.C. 2717.01.

A name change for a minor may be requested

by either of the minor's

parents,

the child's

legal guardian,

or a guardian

ad litem. Id. When application

is made on behalf of a minor, in

addition

to the notice and proof required

pursuant

to division

(A) of this section,

the consent of

both living, legal parents of the minor shall be filed, or notice of the hearing shall be given to the

parent or parents not consenting

by certified

mail, return receipt requested.

Id

The Court must consider

the best interest

of the child in determining

and proper cause exists when deciding

whether to permit a name change for

pursuant to RC 2717.0 I (A). In re Wilhite,

85 Ohio St. 3d 28; 1999-0hio-201,

Wil hite,

the Ohio Supreme Court held that when determining

the best interest

whether reasonable

a minor child

Syl abus

1. In

of the child,

the trial court should consider

the fol owing

factors:

the effect of the change

on the preservation

and development

of the child's relationship

with each

parent;

the identification

of the child as part of a family unit; the length of

time that the child has used a surname;

the preference

of the child if the child

is of sufficient

maturity

to express a meaningful

preference;

whether

the

child's

surname

is different

from the surname

of the child's

residential

parent;

the embarrassment,

discomfort,

or inconvenience

that may result

when a

child bears a surname

different

from the residential

parent's;

parental

failure

to maintain

contact

with and support

of the child;

and any other factor

relevant

to the child's best interest.

Id Syllabus

2, citing Bobo v. Jewell (1988) 38 Ohio St. 3d 330, paragraph

2 of the syl abus,

SCAN

Case: 1:18-cv-00540-WOB Doc #: 1 Filed: 08/03/18 Page: 59 of 60 PAGEID #: 59

DECISION

Adolescence

is a time of fevered identity exploration.

In addition,

adolescents

can become fixated

on their immediate

desires and far too often lack the ability to ful y

appreciate

the long-term

effects oftheir

decisions.

It is general y

well-known

and not

seriously

contested

that adolescent

minds and bodies don't ful y develop during their

minority

and they are unable to cognitively

and emotional y

make adult-like

decisions.

Here the Court is faced with a request from a l-l-year-old

maturity, knowledge,

and stability

to make this decision.

who lacks the age,

Whether Giannella

is experiencing

Gender Dysphoria

or is just not comfortable

with her body is something

that only time will reveal.

Is Giannella's

distress brought

about by confusion,

peer pressure,

or other non-transgender

issues -- or is it truly a

mismatch

between her gender identity

and her body? Children

change significantly

and

rapidly.

A name change request today by a child could be motivated

by short-term

desires

or beliefs

that may change over the passage

of time as the child matures.

The

Court recognizes

the reality that Giannella's

brain is stil growing and changing,

and is

simply not ready to make this life-altering

decision.

The Court is sympathetic

their child.

In essence,

the Court

simply saying "not yet."

to the parents
isn't saying

of the child and their desire to assuage

"no" to the name change.

The Court is

, Age.

Develop.
Mature.

petitioning
Court

And take advantage

of your common-law

for in the meantime,

so long as it's

again once you become an adult.

right to use the name you are

not for fraudulent

purposes.

Then,

ask this

Based upon the foregoing,

the Court finds the application

minor to be NOT WELL TAKEN and hereby DENIED.

for change of name of a

It is so ordered.

Distribution:
Celix Y. Velaides,

Applicant

CERTIFICATE

I hereby certify that I have'

this

22-J

day Qf.

VVl-"L

, 20 .Ja:

O? mailed by

mail a "certifWdtrUec

py"

of the foregoing

instrument

to all parties

named in

distri?

Deputy Clerk

SCAN

Case: 1:18-cv-00540-WOB Doc #: 1 Filed: 08/03/18 Page: 60 of 60 PAGEID #: 60

PARTIES APPEAL

ARE ADVISED '..

-
OF THIS

CASE

.

.

OF THEIR RIGHT TO APPEAL THIS '

MUST BE FILED
."

.
WITH THE TWELFtH

DECISION; DISTRICT

ANY COURT

OF APPEALS BY FILING AS SET FORTH IN THE

SAME WITH

.. '

.'

OHIO

RULES

THlS COURT
OF APPELLATE

WITHIN THE TI? FRAMES

PROCEDURE.

HOWEVER,

A ·PARTY SHALL NOT ASSIGN ASERRQR ON APPEAL THE COURT'S

ADOPTION

OF ANY FINDING OF FACT OR?EGALCO?CLUSION,

WHETHE? OR NOT

SPECIFICALLY

DESIGNATED

A FINDING

OF FACT OR CONCLUSION

OF LAW'

UNDER CIV. R. 53(D)(3)(a)(i )

OR JUY. R.,40(D)(3)(a)(i),

UNLESS THE PARTY

TIMELY AND SPECIFICALLY

OBJECTS'TO

THAT FACTUAL

FINDING

OR LEGAL

CONCLUSION

AS ?QUIRED

BY CIV. R. 53(D)(3)(b)

C;>R JuV.R. 40(D)(3)(b).

.'

SCAN

 
 Case: 1:18-cv-00540-WOB Doc #: 43 Filed: 10/30/18 Page: 1 of 11 PAGEID #: 312

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

CIVIL ACTION NO. 1:18cv540(WOB)

STEPHANIE LEIGH WHITAKER, ET AL

PLAINTIFFS

VS.

OPINION AND ORDER

JOSEPH W. KIRBY

DEFENDANT

This matter is before the Court on a variety of pending motions. (Doc. 15, 20, 31). The Court previously heard oral argument on these motions and took the matter under submission.
After further study, the Court issues the following Opinion and Order.
Factual and Procedural Background This unusual case involves a suit against an Ohio probate judge for denying a name change for the plaintiffs’ minor child, an adolescent who is going through a transgender process.1 Under Ohio law, jurisdiction to decide name change applications for minors is bestowed on the probate court for the

1 There are two other sets of plaintiffs: one has an application for name change pending before the defendant judge, which has not yet come on for hearing. The other set alleges that they are contemplating filing for a name change for their transgender child, but they have not yet done so. (Doc. 1). Because the judicial immunity analysis that follows is dispositive of the claims of these plaintiffs as well, the Court will not address defendant’s other arguments as to why these plaintiffs’ claims should be dismissed.

Case: 1:18-cv-00540-WOB Doc #: 43 Filed: 10/30/18 Page: 2 of 11 PAGEID #: 313
county in which the applicant resides. Ohio Rev. Code § 2717.01(B). In determining whether to grant such a name change, the probate judge must consider “the best interest of the child.” In re Willhite, 706 N.E.2d 778, 782 (Ohio 1999).
Here, having filed an application for a change from an ordinarily female name to a male name for their child, the parents and the adolescent appeared before the defendant judge, who asked them several questions concerning the wisdom of seeking a name change at that time. (Doc. 1 at 23-48). The questions concerned the maturity of the child, the nature and stage of the transgender process, and whether or not the child had considered all the ramifications. The defendant judge denied the application on the ground that the minor plaintiff was too immature to take such a drastic step at the present time, and the judge stated that the minor could reapply as an adult. (Doc. 1 at 49-60).
The parents disagreed with this ruling, as they believe that the name change is a critical part of the transgender process. Therefore, they timely appealed to the appropriate Ohio Court of Appeals. This appeal is now pending and the appellants have filed their brief. The defendant judge, through counsel, has advised this Court that he does not intend to file a brief in the state appeal because he is not a party to the underlying name change proceeding. The Court of Appeals has scheduled the appeal for
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submission for disposition without oral argument on November 21, 2018. (Doc. 42-1).
In addition to filing the state court appeal, plaintiffs filed this declaratory judgment action. Plaintiffs have sued the probate judge personally for declaratory relief. (Doc. 1). Defendant promptly moved to dismiss based upon the Rooker-Feldman and other abstention doctrines, as well as on the grounds of judicial immunity. (Doc. 15).
The Rooker-Feldman doctrine requires a federal court to abstain when a final judgment of a state court is sought to be set aside in a subsequent federal court action on federal constitutional or statutory grounds.
In an attempt to avoid application of this doctrine, plaintiffs responded that they are not attacking the result reached by the probate court, but only the procedures employed by the defendant probate judge. (Doc. 19). Among these challenged procedures are the practice of the judge in asking extensive “embarrassing” questions concerning the medical steps in the transgender process and whether or not the parties had carefully thought it through. Plaintiffs particularly object to the judge’s reference to a celebrity who had undergone a widely publicized transgender process a few years before. The judge implied that this celebrity’s change had resulted in a fad, which had influenced the plaintiffs’ application.
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Plaintiffs assert that transgender persons are a protected class, and that it is a denial of equal protection for them to be asked questions in the name-changing process that would not be asked of other applicants. They argue that the probate judge denies more, if not all, minor transgender name-change applications and requires that all be referred to him rather than to a magistrate, as is the usual practice in such cases.
In his memoranda, defendant disputes these allegations. Analysis
A. Judicial Immunity Plaintiffs have brought this action under 42 U.S.C § 1983, which provides generally that persons who claim their federal constitutional or statutory rights have been violated “under color of state law” may bring an action for redress of such injuries in federal court. Here, plaintiffs claim that they have been denied “equal protection of the laws” under the 14th Amendment to the Constitution of the United States by reason of the procedures employed by the defendant in processing petitions for name changes for minor transgender persons or those contemplating transgender procedures. They assert that defendant asks more questions of minor transgender petitioners than other petitioners, refers fewer minor transgender petitions to magistrates, and affords “a lower level of deference to parental authority and parents’ assessment of their
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child’s best interests” in applications for transgender minors. (Doc. 38-1).
Plaintiffs admit that defendant would be entitled to judicial immunity from money damages, but they claim that such immunity does not apply to the declaratory relief sought in this case. Plaintiffs rely on the following language in § 1983:
[I]n any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. 42 U.S.C. § 1983. Plaintiffs argue that this statutory language implies that they may seek a declaratory judgment against the defendant judge without violating judicial immunity. Defendant argues that judicial immunity would be violated by permitting declaratory relief in this case. Authority interpreting this language is sparse, but there is a Sixth Circuit case in point resolving the issue. In Cooper v. Rapp, 702 F. App’x 328 (6th Cir 2017), the Court held that an action against a state judge alleging that he had made adverse rulings against the plaintiffs because of racial bias violated the principles of judicial immunity, because no “case or controversy” existed between the plaintiffs and the judge. Id. at 333-34. The Court observed that the defendant judge was not an adversary of the plaintiffs in the state court proceedings, nor
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was he acting as a judicial administrator of the statute at issue. Id. Instead, the judge “acted as a disinterested judicial adjudicator, bound to decide the issues before him according to the law.” Id. at 333.
Here, Judge Kirby had no personal stake in the grant or denial of the name change, but rather he was performing his judicial duty to decide whether the name change was in the best interest of the child. As such, pursuant to Cooper, he “is not amenable to a suit for declaratory relief under § 1983.” Id.
In other words, the defense of judicial immunity is valid, and this action must be dismissed on that ground. The doctrine of judicial immunity is essential to the proper functioning of our courts. If not for that immunity, the judge could be sued by the losing party in every case, especially if the judge is reversed on appeal. This would result in chaos in the court system. For similar reasons, legislators, prosecutors, and newspapers which accurately report legal proceedings are entitled to similar immunity.
B. Abstention Although the Court has held that defendant is immune from suit in this matter, in order to facilitate appellate review, if any, the Court will also discuss the additional argument by defendant that, even if he were held not to be entitled to judicial immunity, the Court ought to abstain from hearing this case.
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Our nation is unique in that it is composed of a voluntary union of fifty-two sovereign states, rather than a number of provinces which are subsidiary units of the national government. This distinction has not been easy to apply. Many conflicts have arisen concerning the authority of the nation vis à vis the sovereignty of the states. One such argument led to the Civil War.
The national government has its own set of courts, as does each state. Frequently state and federal courts will have jurisdiction over the same matter, whether it be an automobile accident in which the parties are of diverse citizenship, or, as here, where federal constitutional rights are at issue.
In order to minimize duplication and perhaps conflicting rulings in such actions, the federal courts have developed a system of rules known as the “abstention” doctrines. If any of these doctrines applies, a federal court may (or, in some cases, must), depending on which doctrine is applicable, dismiss the case or defer ruling on it in deference to the state court. Many cases give rise to consideration of these abstention doctrines, which encompass a large variety of legal actions and issues.
In a highly respected multi-volume text on federal practice, 121 sections are devoted to the various abstention doctrines. 17A James Wm. Moore et al., Moore’s Federal Practice §§ 122.01-122.121
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(3d ed. 2018). The Court does not feel the need to discuss them all, although at least three are relevant here.
1. Pullman Abstention2 Under Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496 (1941), “federal courts should abstain when litigants challenge state actions on federal constitutional grounds in federal court and the answer to an unsettled question of state law might eliminate the need to decide the federal constitutional question or materially alter the way the federal court would view that question.” 17A James Wm. Moore et al., Moore’s Federal Practice § 122.20 (3d ed. 2018). This is precisely the case here. Plaintiffs have made the same arguments attacking the propriety of defendant’s procedures in their state appeal. If the state appellate court agrees with plaintiffs’ condemnation of these procedures, it may well hold that employing them is improper under state law, thus “eliminat[ing] any need to reach the federal constitutional issue.” Id. at § 122.21. The Court notes that only a possibility that the need to decide the federal question would be eliminated is required. Id. at § 122.23(f) (discussing Sixth Circuit cases). If the Ohio Court of Appeals reverses the denial of the name change on the ground that the procedures employed were an abuse of
2The abstention doctrines are generally named after the (usually) Supreme Court decisions which established them.
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discretion or violative of state criteria, it would be unnecessary for this Court to decide the various constitutional issues that have been raised in this federal case.
2. The Rooker-Feldman Doctrine Based on two Supreme Court decisions, the Rooker-Feldman doctrine “bars a state-court loser from asking a lower federal court to review a state-court judgment directly.” 18 James Wm. Moore et al., Moore’s Federal Practice § 133.33[2][e][i] (3d ed. 2018). To avoid this doctrine, the plaintiffs here have asserted that they are not attacking the result reached by the defendant judge in the name-change proceeding, but only the procedures used by him. This approach does prevent the application of the doctrine. See Kovacic v. Cuyahoga Cnty. Dept. of Children and Family Servs., 606 F.3d 301, 308-312 (6th Cir. 2010).
3. Wilton: District Court Has Discretion In Wilton v. Seven Falls Co., 515 U.S. 277 (1995), the Supreme Court held that a discretionary standard governs a district court’s decision to stay or dismiss a declaratory judgment action due to the pendency of parallel court proceedings. The Sixth Circuit, following Wilton, has likewise applied such a discretionary standard and held that the pendency of a state court action with the same or similar issues is a sufficient basis for the federal court to decline to exercise its discretion under the Declaratory
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Judgment Act. See Scottsdale Ins. Co. v. Roumph, 211 F.3d 964, 968-69 (6th Cir. 2000).
This Court, in the exercise of its discretion, believes that this type of abstention is appropriate because the issues in the two cases are virtually identical and the state court can resolve them without deciding the federal constitutional issues.
Conclusion The proper way to challenge an adverse judgment is to appeal, not to sue the judge. Plaintiffs here have appealed Judge Kirby’s decision not to grant their child’s name change to the Ohio Court of Appeals. This is the appropriate way to proceed. The Ohio court can decide the appeal based on the issue of whether or not Judge Kirby abused his discretion in denying the name change. Also, it can review Judge Kirby’s procedures, if it thinks that is appropriate. This can be done without addressing the complex federal constitutional issues, although that court can address them, if it so desires. If plaintiffs are aggrieved by the decision of the appellate court, they can seek redress from the Supreme Court of Ohio and, if necessary, the Supreme Court of the United States. All of these options are open to them, but directly suing any of the judges is not. Therefore, having heard from the parties, and being sufficiently advised,
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Case: 1:18-cv-00540-WOB Doc #: 43 Filed: 10/30/18 Page: 11 of 11 PAGEID #: 322 IT IS ORDERED that defendant’s motion to dismiss (Doc. 15)
be, and is hereby, GRANTED; plaintiff’s motion to expedite (Doc. 20) be, and is hereby, DENIED AS MOOT; and plaintiffs’ motion for leave to file surreply (31) be, and is hereby, GRANTED NUNC PRO TUNC. A separate judgment shall enter concurrently herewith.
This 30th day of October, 2018.
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