IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

STEPHANIE LEIGH WHITAKER, et al. : Case No. 1:18-cv-00540-WOB 

 : 

 Plaintiffs, : 

 : Judge William O. Bertelsman 

v. : 

 : 

JUDGE JOSEPH W. KIRBY, : 

 : 

 Defendant. : 

 

 

DEFENDANT’S MOTION TO DISMISS PLAINTIFFS’ COMPLAINT 

Defendant Judge Joseph W. Kirby moves this Court to dismiss Plaintiffs’ Complaint 

pursuant to Fed. R. Civ. 12(b)(1) and 12(b)(6) for the following reasons: 

1. Plaintiff Whitaker’s claims fail based on Rooker-Feldman abstention. 

2. Plaintiff Whitaker and Shaul’s claim fail based on Younger abstention 

3. Plaintiff Doe lacks standing because she has failed to allege facts showing a live case or 

controversy. 

4. Judge Kirby is entitled to absolute immunity from civil liability under 42 U.S.C. § 1983 

for both money damages and declaratory judgment. To the extent that Plaintiffs seek 

money damages, such claims are barred by the Eleventh Amendment. 

5. Plaintiffs’ Equal Protection claims fail because the only categorical distinctions that 

Judge Kirby is alleged to have made are based on age (not sex), and Judge Kirby had a 

rational basis for his decision regarding name changes based on the age of the applicant. 

 A Memorandum in Support is attached. 

 

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Respectfully submitted, 

/s/ Aaron M. Glasgow 

J. Stephen Teetor (0023355) 

E-mail: jteetor@isaacwiles.com 

LEAD COUNSEL

Aaron M. Glasgow (0075466) 

E-mail: aglasgow@isaacwiles.com 

ISAAC WILES BURKHOLDER & TEETOR, LLC 

2 Miranova Place, Suite 700 

Columbus, Ohio 43215 

T: (614) 220-5170 / P: (614) 365-9516 

Attorneys for Defendant 

MEMORANDUM IN SUPPORT 

I. INTRODUCTION AND SUMMARY OF ARGUMENT 

 Plaintiffs’ allegations ignore the fact that Defendant Judge Joseph W. Kirby (“Judge 

Kirby”) has granted multiple transgender name changes, including name changes for both 

transgender adults and minors, and Judge Kirby has even reversed a Magistrate’s denial of a 

minor transgender name change, all of which is in public rulings for which this Honorable Court 

can take judicial notice. See Clark v. Donahue, S.D. Ohio No. 2:11-cv-597, 2012 Ohio LEXIS 

110274, at *10, citing Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001). However, 

even though Plaintiffs’ lead counsel has now withdrawn, and even if the allegations of Plaintiffs 

were true (which they are not), their complaint is insufficient to state a claim as a matter of law. 

In this case, Plaintiffs disregard basic tenants of federalism, abstention and judicial 

immunity. The facts alleged in the Complaint are insufficient to support Plaintiffs’ claims based 

on the pleadings under Fed. R. Civ. 12(B)(6). 

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There are three Plaintiffs in this case, all of whom are parents of transgender minors who 

want approval to change their names. Judge Kirby is an Ohio Probate Judge who has decided or 

will decide whether to approve those name changes, a decision that is vested with the probate 

court under R.C. § 2717.01. 

The first Plaintiff (Stephanie Leigh Whitaker) asks this Court to intervene and overrule a 

substantive decision by a state court judge about a matter that is clearly within Judge Kirby’s 

jurisdiction to decide under Ohio law, even though Plaintiff has appealed the same decision to 

the state court of appeals. Federal courts are not to act as courts of appeal over the decisions of 

state courts under the Rooker-Feldman doctrine. As such, this request is improper under the 

Rooker-Feldman abstention doctrines and should be denied. 

The second Plaintiff (Jennifer Shaul) has an application pending before Judge Kirby. By 

seeking a declaration that Judge Kirby’s anticipated decision would be unlawful, Plaintiffs are 

essentially asking this Court to intervene in that proceeding, as well as dictate to Judge Kirby 

what his decision must be on that pending application. This request is improper under the 

Younger abstention doctrine and should be denied. 

The third Plaintiff (Jane Doe) is the parent of an anonymous transgender minor who 

resides in Warren County and is considering petitioning for a name change. This Plaintiff has 

apparently had no communication with the Court on the issue and has not actually filed an 

application, but believes that the application for name change may be denied based on the prior 

decision. Thus, by seeking a declaration regarding a prior name change decision, Plaintiff Doe is 

essentially seeking, via this Court, to dictate to Judge Kirby how he must rule on Plaintiff Doe’s 

application, if and when Plaintiff Doe files a name change application and regardless of the 

evidence that may be presented therein. This request is improper as it does not present an actual 

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case or controversy for this Court to decide, as Plaintiff Doe cannot show an actual injury for 

which this Court can fashion a remedy. Moreover, if Plaintiff Doe overcomes this issue by 

actually filing an application, that claim will be subject to the same abstention objections as the 

other two Plaintiffs. 

Moreover, there is no question that Judge Kirby is being sued specifically because of the 

way that he ruled in a case before him. He is absolutely immune from liability for his decisions 

about cases that are within his jurisdiction to decide. This immunity is not limited only to claims 

for damages, but also includes immunity from declaratory judgment claims. 

 Finally, to the extent that Judge Kirby has made any categorical distinctions that resulted 

in the denial of name change applications, those distinctions are based on the age and status of 

the applicant and not whether the applicant is transgender or not. This is established within the 

Complaint, which acknowledges that Judge Kirby has approved all name change applications 

before him for transgender adults. Age-based distinctions are subject only to rational basis 

review. Thus, Judge Kirby need only provide some reason for his decision that is rationally 

related to a legitimate governmental interest. In his decision in the Whitaker case, Judge Kirby 

provided ample reasoning for his decision denying the name change, and these reasons satisfy 

the lower standard of rational basis. 

II. FACTS 

Judge Kirby is the Probate Judge in Warren County. (Doc. 1, Complaint, Page ID#3). In 

Ohio, probate judges have the authority and obligation to hear applications asking for the change 

of the applicant’s name. See R.C. § 2717.01(A). This includes applications from both adults 

and minors, though minors may only petition through their parents or guardians. See R.C. §

2717.01(B). R.C. § 2717.01(A) requires the court to determine whether the facts set forth in the 

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name change application show reasonable and proper cause for changing the name of the 

applicant. In re Willhite, 85 Ohio St. 3d 28, 30, 1999-Ohio-201. When deciding whether to 

permit a name change for a minor child pursuant to R.C. 2717.01(A), the trial court must 

consider the best interests of the child in determining whether reasonable and proper cause has 

been established. Id. at 32. And while a Probate Judge may delegate the task of hearing name 

change applications to magistrates, the Probate Judge still reviews and adopts or rejects the 

recommendation of the Magistrate Judge for the decision to become final, as part of the Judge’s 

supervisory power. See R.C. § 2101.01(A). 

 Plaintiffs have wrongfully alleged that Judge Kirby has a bias against transgender people, 

which is allegedly reflected in a pattern and practice of denying name-change applications for 

transgender applicants. (Doc. 1, Complaint, Page ID#32). This is untrue. As is often the case, 

reality is more complicated and reflects that Judge Kirby does exactly what the statute and case 

law tells him to do: he looks at each name change application on a case-by-case basis and makes 

determinations in each case based on the specific circumstances and evidence presented in each 

case. 

 As to adults, any suggestion of differential treatment of transgender individuals is 

patently false, as demonstrated by Plaintiffs’ own pleadings. Based on the chart set forth in the 

Complaint, Judge Kirby approved six name change applications for transgender adults in 2018. 

(Doc. 1, Complaint, Page ID#16 – 17). During the same time, he has not denied any name 

change applications to transgender adults. As such, any claim that Judge Kirby generally treats 

transgender people differently because of their transgender status is spurious and undermined by 

Plaintiffs’ own pleadings. 

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 As to transgender minors seeking name changes, the issue is more complicated. While it 

is accurate that Judge Kirby has denied some name change applications to transgender minors, it 

is also true that Judge Kirby has approved name change applications for transgender minors. As 

noted in the Complaint, there was a transgender minor name change application that was granted 

on April 10, 2018 in case number 2018-9028. In the Complaint, however, this decision was 

incorrectly attributed to a magistrate, whereas it was actually Judge Kirby who heard the case 

and granted it. (See attached Exhibit A). In addition, by focusing narrowly on the cases decided 

in 2018, Plaintiffs missed the fact that Judge Kirby approved additional name change 

applications for transgender minors prior to 2018. 

For instance, on September 29, 2016, Judge Kirby personally approved a name change 

application for a transgender minor, changing the minor’s name from female to male. (See 

attached Exhibits B). In that case, the Magistrate recommended denial of the name change 

application, based on the individual circumstances of the applicant (including age, maturity and 

short period of time in transition). Id. The applicant objected to the decision. On review, Judge 

Kirby reversed the Magistrate, siding with the applicant and granting the request of the 

transgender minor for a name change. Id. 

On December 28, 2017, Judge Kirby personally approved a name change application for 

a teenage minor transitioning from a female to a male. (See attached Exhibit C). 

In addition, Judge Kirby has also reviewed and approved the decisions of a Magistrate 

approving name change applications of transgender minors on September 16, 2014 (Exhibit D), 

August 11, 2015 (Exhibit E), March 21, 2016 (Exhibit F), March 21, 2017 (Exhibit G) and 

August 11, 2017 (Exhibit H). 

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The point is this: Judge Kirby and his staff are performing their statutory duty to review 

and decide name change applications exactly as they are directed to do—which is to review 

those applications based on the circumstances of each child, applying the “best interest” 

standard. In some cases, the result of that process is a finding that the name change is 

appropriate, sometimes not. But in light of these other decisions—which Plaintiffs have chosen 

to ignore—there is little support for the notion that Judge Kirby has decided his cases based on 

some underlying bias against transgender individuals. 

It is within this context that this Court should consider Plaintiffs’ Complaint, which is an 

invitation by the Plaintiffs to intervene in state court proceedings to either reverse (in the case of 

Whitaker) or direct (in the case of Shaul and Doe) the decisions of the Warren County Probate 

Court. This invitation is thoroughly inappropriate, given the purposes of the abstention doctrines 

of Rooker-Feldman and Younger, and the basic immunity limitations placed on persons seeking 

to sue judges purely based on their disagreement with their decisions. As set forth above, it is 

completely untrue that Judge Kirby has a policy that discriminates against transgender persons. 

However, even if Plaintiffs had some colorable claim to that effect, their proper avenue for relief 

would be through the state appeals court. Plaintiffs’ attempt to end-run around that Appellate 

Court by challenging Judge Kirby’s decision here should not be permitted. 

III. LAW AND ARGUMENT 

A. Plaintiff Whitaker’s claims must be dismissed for lack of subject matter 

jurisdiction under the Rooker-Feldman abstention doctrine. 

 Plaintiff Whitaker’s claims must be dismissed under the Rooker-Feldman abstention 

doctrine. Plaintiff Whitaker has appealed Judge Kirby’s decision denying her child’s name 

change application to the Twelfth District Court of Appeals, where it is currently pending. 

Despite the appeal, Plaintiff Whitaker has also filed this action challenging Judge Kirby’s 

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decision and asking this Court for a declaration that the decision was unlawful. In this lawsuit, 

Plaintiffs are asking this Court to review and overturn Judge Kirby’s decision. This effort is 

barred by Rooker-Feldman, which provides that federal courts (other than the U.S. Supreme 

Court) do not have jurisdiction to review state court cases. The fact that Plaintiffs have pled this 

case as a civil rights case under 42 U.S.C. § 1983 does not change this fact. 

The federal courts lack authority under the Rooker-Feldman doctrine to sit as a state 

appellate court to review state court determinations. See District of Columbia Court of Appeals v. 

Feldman, 460 U.S. 462, 476, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983); Rooker v. Fidelity Trust 

Co., 263 U.S. 413, 44 S. Ct. 149, 68 L. Ed. 362 (1923). This doctrine, "a combination of the 

abstention and res judicata doctrines, stands for the proposition that a federal district court may 

not hear an appeal of a case already litigated in state court. A party raising a federal question 

must appeal a state court decision through the state system and then directly to the Supreme 

Court of the United States." United States v. Owens, 54 F.3d 271, 274 (6th Cir. 1995). Only the 

United States Supreme Court has jurisdiction to correct state court judgments. Feldman, 460 U.S. 

at 482. The Supreme Court has reaffirmed that the Rooker-Feldman doctrine applies where a 

loser in a state court action, complaining of injuries caused by the state court's judgment 

rendered before the district court proceedings commenced, invites the district court to review and 

reject that judgment. See Exxon Mobile Corp. v. Sandia Basic Indus. Corp., 544 U.S. 280, 284, 

125 S. Ct. 1517, 161 L. Ed. 2d 454 (2005). On the question of whether abstention is appropriate 

under Rooker-Feldman, the crucial question is whether the "source of injury" upon which the 

plaintiff bases his federal claim is a state court judgment. See Burton v. Kirby, S.D. Ohio No. 

1:17-cv-767, 2017 WL 5495698, at *7-8, citing Lawrence v. Welch, 531 F.3d 364, 368 (6th Cir. 

2008). “If the source of the injury is the state court decision, then the Rooker-Feldman doctrine 

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would prevent the district court from asserting jurisdiction.” Lawrence, supra at 368, quoting 

McCormick v. Braverman, 451 F.3d 382, 394 (6th Cir. 2006)). Sixth Circuit panels have held 

that the Rooker-Feldman doctrine bars federal-court adjudication of claims where success on 

those claims would disturb or imply the invalidity of state-court rulings. Evans v. Yarbrough, 

Sixth Cir. No. 00-3588, 2000 U.S. App. LEXIS 33384, at *2; Bodell v. McDonald, 4 Fed. Appx. 

276, 2001 WL 137557 (6th Cir. 2001); Rowe v. City of Detroit, Sixth Cir. No. 00-1353, 2000 

U.S. App. LEXIS 28066. 

 The Burton case is particularly instructive here. In Burton, the plaintiff—the son of a 

decedent that died intestate—sued a state probate judge regarding his decision regarding the 

validity of the marriage of a decedent. In the federal lawsuit, the plaintiff alleged that the judge 

“created bias and prejudice which led to barriers” in the litigation and that he was “unfair, did not 

follow the law, and denied” motions without reason. Id. at *4. This Court determined that the 

plaintiff’s claims were barred by the Rooker-Feldman doctrine because they were inextricably 

tied to the state court decision, even though the plaintiff’s claims were couched as civil rights 

claims. Id. at *8. Thus, this Court held: “[a]ny review of the due process claim asserted by 

plaintiff in this context would require the Court to review the specific issues addressed in the 

state probate court proceedings. This Court lacks jurisdiction to review the state court 

proceedings or grant the relief plaintiff requests.” Id. at *8-9. 

 Plaintiff Whitaker’s claims are couched in the language of an Equal Protection claim 

under § 1983. But this artful pleading does not change the fact that Plaintiffs are asking this 

Court to intervene to review and overturn Judge Kirby’s decision regarding the name change 

application. (Doc. 1, Complaint, PageID#20-21). The “source of injury” identified in Plaintiffs’ 

Complaint is Judge Kirby’s decision—alleging that Judge Kirby has violated Plaintiffs’ rights 

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“[b]y not permitting transgender adolescents to use a name that fits their gender identity.” 

(Doc.1, Complaint, PageID#19). Plaintiffs have made it clear that they are asking this Court to 

find that Judge Kirby acted contrary to the law in denying the Whitaker name change 

application, and to overturn this decision. Id. Any review by this Court of Plaintiffs’ claims 

would be inextricably tied to the state court decision and would require that this Court review the 

specific issues addressed in the state court proceeding before Judge Kirby. This is precisely the 

type of invitation to federal courts to review state court decisions that the Rooker-Feldman 

doctrine dictates must be rejected. As such, Plaintiff Whitaker’s claims must be dismissed based 

on lack of subject matter jurisdiction under Rooker-Feldman. 

B. The claims of Whitaker and Shaul Plaintiffs must be dismissed based on 

Younger abstention. 

 

The Whitaker and Shaul Plaintiffs are parties to pending state court proceedings, namely, 

proceedings to hear their name change applications under R.C. § 2717.01. Plaintiffs are asking 

this Court to interfere with those pending state proceedings—to reverse Judge Kirby’s decision 

in the Whitaker case and to dictate the result of the Shaul application. As to these requests, 

Plaintiffs’ Complaint is improper and should be dismissed based on Younger v. Harris, 401 U.S. 

37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). 

A federal court must decline to interfere with pending state proceedings involving 

important state interests unless extraordinary circumstances are present. See Younger, supra at 

44-45. When a person is the target of an ongoing state action involving important state matters, 

he or she cannot interfere with the pending state action by maintaining a parallel federal action 

involving claims that could have been raised in the state case. Watts v. Burkhart, 854 F.2d 839, 

844-48 (6th Cir. 1988). If the state Defendant files such a case, Younger abstention requires the 

federal court to defer to the state proceeding. Id; see also Pennzoil Co. v. Texaco, Inc., 481 U.S. 

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1, 15, 107 S. Ct. 1519, 95 L. Ed. 2d 1 (1987). Based on these principles, abstention is appropriate 

if: (1) state proceedings are on-going; (2) the state proceedings implicate important state 

interests; and (3) the state proceedings afford an adequate opportunity to raise federal questions. 

Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, 102 S. Ct. 2515, 

73 L. Ed. 2d 116 (1982). Abstention is mandated whether the state court proceeding is criminal, 

quasi-criminal, or civil in nature as long as federal court intervention "unduly interferes with the 

legitimate activities of the state." Younger, 401 U.S. at 44. In this case, all three factors for 

Younger abstention are present. 

There is no dispute that as to the Whitaker and Shaul Plaintiffs, there are ongoing state 

proceedings. (Doc. 1, PageID 2, ¶¶ 3.b. and 4.b). The Whitaker matter is currently pending 

before the Twelfth District Court of Appeals. (Doc. 1, Complaint, PageID#2, ¶ 3.c.). The Shaul 

name change application is currently pending before the Warren County Probate Court. (Doc. 1, 

Complaint, PageID#2, ¶ 4). 

Second, there is an important state interest at issue here. The Ohio General Assembly has 

vested the Probate Court with the discretion to determine under what circumstances a name 

change is appropriate. In the case of minors, the court must consider the best interest of the child 

in determining whether reasonable and proper cause exists when deciding whether to permit a 

name change. The determination of the scope and limit of that discretion is an important state 

interest, and this case places that discretion squarely at issue in this case. This Court could not 

decide this case without directly addressing this state interest. 

Finally, the available state proceedings afford an adequate opportunity to raise federal 

questions. In the context of review a matter relative to a claim for Younger abstention, this Court 

has held that it must “presume that the state courts are able to protect the interests of a federal 

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plaintiff,” absent a showing of a law or rule to the contrary. See Miller v. Franklin County 

Children Services, S.D. Ohio No. 2:15-cv-179, 2016 WL 279260, at *16. The pertinent inquiry 

is whether the state proceedings afford an adequate opportunity to raise the federal claims. 

Moore v. Sims, 442 U.S. 415, 430, 99 S. Ct. 2371, 60 L. Ed. 2d 994 (1979). The burden at this 

point rests on the Plaintiff to demonstrate that state procedural law bars presentation of his 

claims. Pennzoil Co., 481 U.S. at 14. When a Plaintiff has not attempted to present his federal 

claims in the state court proceedings, the federal court should assume that state procedures will 

afford an adequate remedy, in the absence of "unambiguous authority to the contrary." Pennzoil, 

481 U.S. at 15. As to the Whitaker matter, there is nothing to prevent the Plaintiff from raising 

the federal constitutional issues before the Twelfth District Court of Appeals as an appellant, and 

Plaintiffs have not shown anything to the contrary. Likewise, the Shaul Plaintiffs may raise their 

constitutional arguments in the matter pending before the Warren County Probate Court if they 

so choose and can argue the same positions in an appeal to the Twelfth District Court of Appeals 

if necessary. 

C. Jane Doe Plaintiff lacks standing to bring a claim, as Jane Doe has not 

asserted facts showing a live case or controversy. 

As this Court is well aware, the jurisdiction of the federal courts is limited. Article III § 2 

of the United States Constitution grants the federal courts jurisdiction only over specified "cases" 

or "controversies." Absent a live "case or controversy," a federal court has no subject matter 

jurisdiction and the case must be dismissed. This "case or controversy" requirement gives rise to 

the concept of standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60, 112 S. Ct. 

2130, 119 L. Ed. 2d 351 (1992). 

Standing contains three elements. First, plaintiffs must have suffered an injury in fact—

an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual 

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or imminent, not conjectural or hypothetical. Lujan, supra, at 560-61. Second, there must be a 

causal connection between the injury and the conduct complained of—the injury has to be fairly 

traceable to the challenged action of the defendant, and not the result of the independent action 

of some third party not before the court. Id. Third, it must be likely, as opposed to merely 

speculative, that the injury will be redressed by a favorable decision. Id. "This triad of injury in 

fact, causation, and redressability constitutes the core of Article III's case-or-controversy 

requirement, and the party invoking federal jurisdiction bears the burden of establishing its 

existence." Steel Co., supra, at 103-104. 

As for the first consideration, a "threatened injury must be certainly impending to 

constitute injury in fact," and "[a]llegations of possible future injury are not sufficient." 

Whitmore v. Ark., 495 U.S. 149, 158, 110 S. Ct. 1717, 109 L. Ed. 2d 135 (1990). The Sixth 

Circuit has held that "the mere subjective fear that a plaintiff will be subjected again to an 

allegedly illegal action is not sufficient to confer standing.” Hange v. City of Mansfield, Ohio, 

257 F.App'x 887, 891 (6th Cir. 2007). 

As to the second consideration, “a plaintiff must assert his own legal rights and interests 

and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 

422 U.S. 490, 499, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975); see also United States v. Ovalle, 136 

F.3d 1092, 1100-01 (6th Cir. 1998). The rare exception to this requirement arises where a 

plaintiff can “show that (1) it has suffered an injury in fact; (2) it has a close relationship to the 

third party; and (3) there is some hindrance to the third party's ability to protect his or her own 

interests.” Mount Elliott Cemetery Ass'n v. City of Troy, 171 F.3d 398, 404 (6th Cir. 1999). “A 

plaintiff bears the burden of demonstrating standing and must plead its components with 

specificity.” Lujan, supra, at 561. 

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Plaintiff Jane Doe does not have standing to bring her claims in this case. The only facts 

alleged in the Complaint regarding this Plaintiff are that she is the parent of a transgender child 

who is planning on filing a name change application in Warren County, and she is “fearful that 

she and her child will be subjected to an unfair and unconstitutional refusal to consider the name 

change application.” (Doc. # 1, PageID 3, ¶ 5.c.). There is no allegation that she has actually 

filed for the name change for her child, or that she has been prevented from applying for the 

name change through any means related to Judge Kirby. In fact, she has not alleged any 

communication with or connection to the Court. She simply states that she believes that Judge 

Kirby may deny the name change if it is made. These allegations are insufficient to support 

standing for Jane Doe, as there is no allegation of an injury in fact—and therefore no causal 

connection between the conduct of Judge Kirby and the non-existent injury in fact. The mere 

fact that Plaintiff Doe believes that a certain outcome will occur if she files for a name change for 

her child is too speculative to confer standing to sue. 

Moreover, it is hard to conceptualize what relief Plaintiff Doe is asking this Court to 

provide. This Court can fairly ask Plaintiff Doe: What do you want this Court to do? 

If the answer is that Plaintiff Doe wants this Court to pre-emptively block Judge Kirby 

from denying the name change application, this request slams head-first into a host of problems, 

not the least of which are the abstention issues detailed above, which hold that federal courts 

should not interfere with state proceedings. This includes shutting down or predetermining the 

outcome of state proceedings before they are even commenced. 

If the answer is that Plaintiff Doe wants this Court to tell Judge Kirby that he cannot rule 

on the name change application at all, this is once again an end-run around the state proceedings 

available for this purpose. Plaintiff Doe should not be permitted to avoid these procedures by 

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filing in this Court, based merely on the allegation that Plaintiff Doe fears what may be the 

possible outcome if the name change application is filed. 

Because Plaintiff Doe has failed to plead facts sufficient to show an actual case or 

controversy, Plaintiff Doe’s claim should be dismissed as a matter of law. 

D. Judge Kirby is entitled to absolute immunity from civil liability under 42 

U.S.C. § 1983 for both money damages and declaratory judgment. To the 

extent that Plaintiffs seek money damages, such claims are barred by the 

Eleventh Amendment. 

 Judges are afforded absolute immunity from § 1983 liability for acts they commit while 

functioning within their judicial capacity. "Like other forms of official immunity, judicial 

immunity is an immunity from suit, not just from ultimate assessment of damages." Mireles v. 

Waco, 502 U.S. 9, 11, 112 S. Ct. 286, 116 L. Ed. 2d 9 (1991); Pierson v. Ray, 386 U.S. 547, 87 

S. Ct. 1213, 18 L. Ed. 2d 288 (1967); Barrett v. Harrington, 130 F.3d 246, 255 (6th Cir. 1997). 

Judges retain absolute immunity from liability as long as they are performing judicial acts and 

have jurisdiction over the subject matter giving rise to the suit against them. Stump v. Sparkman, 

435 U.S. 349, 356-57, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978); see also Brookings v. Clunk, 389 

F.3d 614, 617 (6th Cir. 2004); Stern v. Mascio, 262 F.3d 600, 607 (6th Cir. 2001). The decisions 

made by Judge Kirby in the state court action were functions normally performed by judges—

specifically, deciding an application for name change under R.C. 2717.01. See Stump, 435 U.S. 

at 362. Plaintiffs have alleged no facts indicating that Judge Kirby acted "in the complete 

absence of all jurisdiction." Stern, 262 F.3d at 607. Therefore, Judge Kirby is absolutely immune 

from civil liability in this matter. 

 In addition, this immunity extends to declaratory judgment claims. The Sixth Circuit has 

held that where a judge was not an adversary of the plaintiff in the state court proceedings or an 

enforcer or administrator of a statute, but rather acted as a disinterested judicial adjudicator who 

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was bound to decide the issues before him, the judge is not amenable to a suit for declaratory 

relief under §1983 because no case or controversy exists between the plaintiff and the judge. See 

Cooper v. Rapp, 702 F. Appx 328, 333-34 (6th Cir. 2017); see, also, Hertel v. Everett ̧ S.D. Ohio 

No. 2:18-cv-179, 2018 U.S. Dist. LEXIS 138573, at *7 -8. In this case, Judge Kirby was acting 

as a judicial adjudicator who was bound to decide the issue before him—namely, whether, under 

R.C. § 2717.01, it was in the best interest of the child to grant the name change application. As 

such, Judge Kirby is entitled to judicial immunity from both money damages and from the 

declaratory judgment claims of Plaintiffs. 

 Finally, to the extent Plaintiffs have sued Judge Kirby for damages, their claims are also 

barred by Eleventh Amendment immunity. Plaintiffs have not designated whether their claims 

against Judge Kirby are in his official capacity or his individual capacity, which means that the 

Court must treat them as if they are official capacity claims. Pelfrey v. Chambers, 43 F.3d 1034, 

1037-38 (6th Cir. 1995). An official capacity suit is treated as a suit against the governmental 

entity. Ky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985). The Eleventh 

Amendment bars §1983 actions against a state and its officials sued in their official capacities for 

money damages. Id. at 169. Ohio common pleas and appellate courts are arms of the State of 

Ohio for purposes of the Eleventh Amendment analysis. See Hertel, supra, at *9, citing Mumford 

v. Basinski, 105 F.3d 264, 269 (6th Cir. 1997). As such, any claims against Judge Kirby for 

damages are also barred by the Eleventh Amendment, in addition to the other applicable 

immunities discussed above. 

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E. Plaintiffs’ Equal Protection claims fails as a matter of law, as the only 

categorical distinctions that Judge Kirby is alleged to have made are based 

on age (not sex), and Judge Kirby had a rational basis for his decision 

regarding name changes based on the age of the applicant. 

Plaintiffs’ Complaint is filled with a ranging discussion of transgender issues and alleged 

sex discrimination. However, when one drills into the actual facts alleged in the Complaint, it 

becomes clear is that this case is not about sex discrimination. Rather, this case is about minors 

complaining that they are not being treated the same as adults. Age is not a protected class. See 

Theile v. Michigan, 891 F.3d 240, 243 (6th Cir. 2018). Thus, this Court would have to review 

Judge Kirby’s decision based on the lowest level of scrutiny, requiring Judge Kirby to show only 

that his decisions about name change applications are rationally related to some legitimate 

governmental interest. 

As a threshold matter, it should be noted that the standards applicable to name change 

applications are different for adults and minors. The standard for the review of an application for 

a name change by an adult is that the change should be granted if it is “reasonable and proper.” 

See R.C. § 2717.01(A); In re Willhite, supra, at 4. The standard for a minor, however, is 

different. For a minor, a name change should be granted only if the Court finds that reasonable 

and proper cause exists and it is in the best interest of the child. Id. As such, the law treats 

minors and adults differently with respect to name change applications, and Judge Kirby has 

followed the law by applying those different standards. 

To prevail on their Equal Protection claim, Plaintiffs would have to show that Judge 

Kirby treats transgender applicants differently than similarly situated non-transgender applicants. 

In the Complaint, Plaintiffs correctly state that there have been seven transgender name change 

applications granted in the past seven months, in Case Nos. 2018-9075, 2018-9059, 2018-9052, 

2018-9026, 2018-9016 and 2018-9015, and Case No. 2018-9028. (Doc. #1, Page ID 16-17). 

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These cases involved six adults and one minor. Plaintiffs incorrectly state that the one minor 

name change application that was granted was done by a Magistrate, when in fact it was Judge 

Kirby who granted all six adult name change applications in 2018 and the one minor name 

change application in 2018. These facts show that Judge Kirby treats transgender people no 

differently than non-transgender people, as he has approved numerous transgender name change 

applications. In fact, what these facts actually show is that Judge Kirby applies a different 

standard for minors than he does with adults when it comes to name change applications, which 

is consistent with the law. It is clear from his written opinions that Judge Kirby believes that the 

step to change one’s legal identity is an important and life-changing decision and that the 

motivations and depth of understanding of a minor making that decision deserve more scrutiny 

than the same decision made by a matured adult. Thus, to the extent that Judge Kirby is making 

categorical distinctions about this issue (or treating groups of people differently), the distinction 

he is drawing is between minors and adults, not transgender and non-transgender. This is a 

distinction based on the age of the applicant, not sex or gender identity of the applicant. The 

Supreme Court and the Sixth Circuit have held that age is not a suspect or intermediate class to 

which heightened scrutiny applies under the Equal Protection Clause. See Massachusetts Bd. of 

Retirement v. Murgia, 427 U.S. 307, 314 (1976); Theile v. Michigan, 891 F.3d 240 (6th Cir. 

2018); Fabens v. USAir, Inc., 6th Cir. No. 95-3291, 1996 U.S. App. LEXIS 30333, at *5; 

 Age classifications are subject to rational-basis review. Theile, supra at 243. The rational 

basis standard places a heavy burden on the plaintiff to "show there is no rational basis" for the 

classification. Id. By the same token, a defendant "need not offer any rational basis so long as [a 

reviewing] court can conceive of one." Ziss Bros. Constr. Co. v. City of Independence, Ohio, 439 

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F. App'x 467, 476 (6th Cir. 2011), quoting Club Italia Soccer & Sports Org., Inc. v. Charter 

Twp. of Shelby, 470 F.3d 286, 299 (2006). 

While not entirely escaping discriminatory treatment, the aged "have not experienced a 

history of purposeful unequal treatment." Murgia, supra at 313. Age, therefore, is not a suspect 

classification, and "rationality is the proper standard by which to test" an age limitation under the 

Equal Protection Clause. Id. at 312. The Supreme Court has repeatedly reaffirmed the standard. 

See, e.g., Vance v. Bradley, 440 U.S. 93, 96-97, 99 S. Ct. 939, 59 L. Ed. 2d 171 (1979) (holding 

a statute survives review unless the classification "is so unrelated to...any...legitimate purpose[] 

that we can only conclude that the legislature's actions were irrational"); Kimel v. Fla. Board of 

Regents, 528 U.S. 62, 83, 120 S. Ct. 631, 145 L. Ed. 2d 522 (2000) (finding age classifications 

"rationally related to a legitimate state interest" do not offend the Fourteenth Amendment). 

The question here is whether Judge Kirby has articulated a reason for treating minors 

differently than adults with respect to name change applications that is rationally related to a 

legitimate state interest. 

There can be no question that the state has a legitimate interest in ensuring that the 

decision to change one’s legal identity is undertaken with due consideration of the lasting impact 

on the person whose identity will be changed. It is for this reason that a name change can only 

occur with the approval of the Court, after judicial review. In the Complaint, Plaintiffs indicate 

that they believe that judicial review for name changes is something of a formality—that the 

Court should simply rubber-stamp name change applications unless it is clear that the purpose of 

the name change is to perpetrate fraud. The discretion given to the Court by statute is not so 

limited. See R.C. § 2717.01. As Judge Kirby stated in his opinion, “Changing a name through 

judicial decree implies an official consideration and a judicial endorsement of the new name.” In 

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re Wurgler, 136 Ohio Misc. 2d 1, 2005-Ohio-7139, 844 N.E.2d 919. Thus, ensuring that a name 

change is appropriate and undertaken with due consideration is a legitimate governmental 

interest for the purposes of rational basis review. 

In his written decision on the Whitaker case, Judge Kirby indicated that he was not 

convinced that the name change was in the best interest of the child, based on the age of the child 

and circumstances of the child’s request. Specifically, Judge Kirby wrote: 

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 

fully appreciate the long-term effects of their decisions. It is generally well-known 

and not seriously contested that adolescent minds and bodies don't fully develop 

during their minority and they are unable to cognitively and emotionally make 

adult-like decisions. 

Here the Court is faced with a request from a 15-year-old who lacks the age, 

maturity, knowledge, and stability to make this decision. 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 

still growing and changing, and is simply not ready to make this life-altering 

decision. 

 Whether or not one agrees with Judge Kirby’s decision or the underlying reasoning for it, 

it cannot be denied that the reasoning is not “so unrelated to any legitimate purpose that we can 

only conclude that the legislature's actions were irrational." Vance, supra at 96-97. Judge Kirby 

plainly based the decision on the finding that in this case, the child was not sufficiently mature 

and well-informed to make the serious decision to change the child’s name, which is rationally 

related to the legitimate government interest in ensuring that such decisions are made with due 

care and consideration. And it should be noted that Plaintiff presented absolutely no expert or 

medical testimony as to the best interests of the child, even though it has been inaccurately 

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alleged by Plaintiffs that such evidence was presented. (See Transcript attached to Plaintiffs 

complaint). 

 To the extent that Judge Kirby has made categorical distinctions regarding name change 

applications, the distinctions he has made are based on age, with a stricter view of name change 

application of transgender minors than the same request by transgender adults. The fact that the 

applicant is transgender is not the distinction driving his decision (as demonstrated by the 

information set forth in the Complaint). The driving force behind the decision is the age and 

maturity of the applicant. As a result, Judge Kirby must only show a rational basis for his 

decision, which is easily satisfied here based on the facts alleged in the Complaint. 

CONCLUSION 

 For the reasons set forth herein, Defendant Judge Joseph Kirby respectfully requests that 

this Court dismiss Plaintiffs’ Complaint in its entirety pursuant to Fed. R. Civ. 12(b)(1) and 

12(b)(6). 

 Respectfully submitted, 

s/ Aaron M. Glasgow 

J. Stephen Teetor (0023355) 

E-mail: jst@isaacwiles.com 

LEAD COUNSEL

Aaron M. Glasgow (0075466) 

E-mail: aglasgow@isaacwiles.com 

ISAAC WILES BURKHOLDER & TEETOR, LLC 

2 Miranova Place, Suite 700 

Columbus, Ohio 43215 

T: (614) 220-5170 / P: (614) 365-9516 

Attorneys for Defendant

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CERTIFICATE OF SERVICE 

I hereby certify that on August 31, 2018, a copy of the foregoing was filed electronically. 

Notice of this filing will be sent to all parties by operation of the Court’s electronic filing system. 

Parties may access this filing through the Court’s system. 

/s/ Aaron M. Glasgow 

Aaron M. Glasgow (0075466) 

 

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