2021 UT 13

IN THE

SUPREME COURT OF THE STATE OF UTAH

IN THE MATTER OF THE SEX CHANGE OF

SEAN W. CHILDERS-GRAY, F.K.A. JENNY PACE, and 

ANGIE RICE, F.K.A. ARTHUR EDWARD RICE,

Appellants.

No. 20170046

Heard January 8, 2018

Supplemental Briefing Completed January 6, 2020

Filed May 6, 2021

On Direct Appeal

Second District, Morgan

The Honorable Noel S. Hyde

No. 163500015

Second District, Ogden

The Honorable Noel S. Hyde

No. 163900359

Attorneys:1

T. Christopher Wharton, Eric Kyler O‘Brien, Bethany M. Jennings, 

Troy L. Booher, Beth E. Kennedy, Alexandra Mareschal, 

Salt Lake City, for appellants

JUSTICE HIMONAS authored the opinion of the Court in which 

JUSTICES PEARCE AND PETERSEN joined.

CHIEF JUSTICE DURRANT filed an opinion concurring in part, 

dissenting in part, and concurring in the judgment. 

ASSOCIATE CHIEF JUSTICE LEE filed a dissenting opinion.

__________________________________________________________

1 Amicus Curiae attorneys are Sean D. Reyes, Att‘y Gen., Tyler 

R. Green, Solic. Gen. (fmr.), Stanford E. Purser, Deputy Solic.

Gen., Salt Lake City, for the State of Utah.
IN RE SEX CHANGE

Opinion of the Court

2

JUSTICE HIMONAS, opinion of the Court:

INTRODUCTION

¶1 Appellants, Sean Childers-Gray and Angie Rice,

petitioned the district court to change their legal sex designations

because the designations do not reflect their identities. Supposing 

such matters implicate a purely legislative prerogative, the district 

court denied Appellants‘ petitions.

¶2 The district court was mistaken in its supposition. A 

person has a common-law right to change facets of their personal 

legal status, including their sex designation. In recognition of this 

right, the Utah legislature has statutorily declared that, as a matter 

of the public policy of this state, when ―a person born in this state 

has a name change or sex change approved by an order of a Utah 

district court,‖2they can file such order with the state registrar

with an application to change their birth certificate. UTAH CODE

§ 26-2-11(1).3If the registrar determines the application is 

complete, the registrar must change the sex on the person‘s birth 

certificate. Id.

¶3 Associate Chief Justice Lee‘s dissent disagrees on all 

fronts, contesting the relevant legislation and the historical

practice of Utah courts. The dissent suggests that it is protecting 

the interests of the State. See, e.g., infra ¶ 195 (suggesting that our 

articulated standard ―will control all future proceedings in our 

Utah courts and will bind the executive branch of our government 

. . . going forward‖). Yet the State does not argue for the principles 

__________________________________________________________

2 To be more exact, the relevant statutory provision also 

extends to orders of ―a court of competent jurisdiction of another 

state or a province of Canada.‖ UTAH CODE § 26-2-11(1).

3 Utah Code section 26-2-11 was originally enacted in 1975. See 

1975 Utah Laws 222; (originally codified at UTAH CODE

§ 26-15-16.5 (1975)). In 1981, the legislature re-codified the entire 

chapter and re-numbered it, resulting in the current citation—

section 26-2-11. 1981 Utah Laws 598. Aside from the renumbering, 

no material change was made to this section. A change was only 

made in 1995, which included minor linguistic changes. See 1995 

Utah Laws 676. Neither the parties nor the concurrence or dissents

claim any such changes matter. In this opinion, we refer to the 

section in its current numbering and language unless we explicitly 

say otherwise.
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Opinion of the Court

3

the dissent advances. In its amicus brief, the State either opposes 

the dissent‘s position or presents arguments for why we should 

not reach such a resolution. Nevertheless, we take care 

throughout our opinion to respond to the dissent‘s arguments, 

which we firmly reject.

¶4 Today, we provide a plain-meaning interpretation of the 

duly enacted law allowing individuals to change their sex 

designations. In the process, we explain that Mr. Childers-Gray 

and Ms. Rice met the requirements—articulated by us today but 

rooted in common law and applied by Utah district courts and 

other authorities—for their sex-change petitions to be approved.4

Accordingly, we reverse and remand with instructions to enter 

orders granting their sex-change petitions.5

__________________________________________________________

4 Language matters: We address appellants by their 

appropriate pronouns. The ease with which we could have 

misgendered them by using opposite-sex pronouns, despite their 

appearances and pronouncements, amplifies the importance of 

matching their government identification documents to their 

held-out identities.

5 Again, language matters: Appellants and the district court 

use several different terms to describe the change to legal status or 

identification requested in the petition. For the convenience of the 

reader, and without definitively rejecting other terms, we use in 

this opinion the terms ―sex change‖ and ―sex designation 

change,‖ rather than ―gender change.‖ We also note that the 

legislature has indicated in another context that in Utah, ― ̳sex‘ 

means gender.‖ UTAH CODE § 57-21-2(22). We recognize that these 

terms do ―have distinct meanings.  ̳Gender‘ generally refers to a 

social construct based on psychological characteristics that classify 

an individual as feminine or masculine, while  ̳sex‘ generally 

refers to biological sex as evidenced by chromosomes, genitals, 

and other physical characteristics.‖ Gram v. Intelligender, LLC, CV 

10-4210 ABC (VBKx) 2010 WL 11601035, at *1 n.2 (C.D. Cal. Oct. 8, 

2010). In this context, we find it noteworthy that while the 

legislature said that ― ̳sex‘ means gender,‖ it did not say the 

opposite, i.e., that gender means sex. Therefore, we assume that by 

choosing this equation, the legislature, in its wisdom, conferred 

broader meaning to the term ―sex.‖ 
IN RE SEX CHANGE

Opinion of the Court

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BACKGROUND

¶5 Sean Childers-Gray6is a transgender7 man who was 

assigned female at birth. He ―lives 100% as a male‖ and holds 

himself out as a male to his family, friends, and the public. He 

was diagnosed with gender identity disorder8 and underwent 

hormone therapy to change his physical appearance. At the time 

of his petition, he had been treated with hormone therapy for 

more than three years. This therapy significantly changed his 

voice, body hair growth, and breast tissue, and caused his female 

organs to no longer function.

__________________________________________________________

6 Mr. Childers-Gray has changed his birth name to reflect his 

identity.

7 The American Psychological Association defines transgender

as ―an umbrella term for persons whose gender identity, gender

expression or behavior does not conform to that typically 

associated with the sex to which they were assigned at birth.‖ 

Transgender People, Gender Identity and Gender Expression, AM.

PSYCH. ASS‘N, https://www.apa.org/topics/lgbt/transgender

(last visited April 21, 2021); see also Transgender, OXFORD ENG.

DICTIONARY ONLINE, 

https://www.oed.com/view/Entry/247649?redirectedFrom=tra

nsgender#eid (last visited April 21, 2021) (defining transgender as 

―[d]esignating a person whose sense of personal identity and 

gender does not correspond to that person‘s sex at birth, or which 

does not otherwise conform to conventional notions of sex and 

gender‖); Transgender, BLACK‘S LAW DICTIONARY (11th ed. 2019) 

(―A person whose physical sex at birth differs from the sex with 

which the person later identifies.‖).

8 Appellants do not define ―gender identity disorder,‖ but an 

American Medical Association resolution defines it as ―a 

persistent discomfort with one‘s assigned sex and with one‘s 

primary and secondary sex characteristics, which causes intense 

emotional pain and suffering . . . .‖ AM. MED. ASS‘N, RESOLUTION

122 (A-08) at 1 (2008), 

http://www.imatyfa.org/assets/ama122.pdf; see also F.V. v. 

Barron, 286 F. Supp. 3d 1131, 1136–37 (D. Idaho 2018) (citing the 

American Medical Association‘s definition of gender identity 

disorder). Although Mr. Childers-Gray uses the term ―gender 

identity disorder‖ to describe his diagnosis, we use the term 

―gender dysphoria‖ for the reasons we set forth in ¶ 6 n.10.
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Opinion of the Court

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¶6 Angie Rice9is a transgender woman who was assigned 

male at birth. She ―lives 100% as a female‖ and holds herself out 

as a female to her family, friends, and the public. She was 

diagnosed with gender dysphoria,10 and at the time of her 

petition‘s filing, she had been treated with hormone therapy for 

five years to change her physical appearance. 

¶7 Mr. Childers-Gray and Ms. Rice each filed petitions in the 

district court, seeking orders to change their names and sex, 

which would allow them to change the designations on their birth 

certificates. The petitions complied with the requirements 

__________________________________________________________

9 Ms. Rice has also changed her birth name to reflect her 

identity.

10 Appellants do not define ―gender dysphoria‖ either. 

However, another court has explained that it is a ―clinical medical 

condition‖ that ―can result from‖ the emotional stress produced 

from a gender identity disorder. F.V., 286 F. Supp. 3d at 1136–37. 

That court also adopted the definition of the American Psychiatric 

Association for gender dysphoria, which further explains that 

―[p]eople with gender dysphoria may often experience significant 

distress and/or problems functioning associated with this conflict 

between the way they feel and think of themselves (referred to as 

experienced or expressed gender) and their physical or assigned 

gender.‖ Id. at 1137 n.7 (quoting What is Gender Dysphoria?, AM.

PSYCHIATRIC ASS‘N (Jack Turban, Physician Reviewer, Nov. 2020), 

https://www.psychiatry.org/patients-families/genderdysphoria/what-is-gender-dysphoria).

The American Psychiatric Association found that the term 

―disorder‖ suggests a ―stigma‖ that can get in the way of 

―ensur[ing] clinical care‖ for those who might otherwise seek it. 

See AM. PSYCHIATRIC ASS‘N, GENDER DYSPHORIA (2013), 

https://www.psychiatry.org/File%20Library/Psychiatrists/Pract

ice/DSM/APA_DSM-5-Gender-Dysphoria.pdf (noting that DSM5 ―replace[d] the diagnostic name  ̳gender identity disorder‘ with 

 ̳gender dysphoria‘‖ to ―avoid stigma and ensure clinical care for 

individuals who see and feel themselves to be a different gender 

than their assigned gender‖). We therefore use the term ―gender 

dysphoria‖ throughout this opinion. We note that other courts 

have recently done the same. See, e.g., Hecox v. Little, 479 F. Supp. 

3d 930, 945 (D. Idaho 2020), appeal docketed, No. 20-35813 (9th Cir. 

Sept. 17, 2020).
IN RE SEX CHANGE

Opinion of the Court

6

outlined in Utah Code section 42-1-1, which governs name-change 

petitions (Utah does not have a statute governing the express 

content of sex-change petitions). Specifically, the petitions 

included the reasons for the name and sex changes and statements

that Mr. Childers-Gray and Ms. Rice had been residents of the 

county where they lived for at least one year before filing. See 

UTAH CODE § 42-1-1. In addition, both petitions included letters

from a medical doctor stating that appellants had been treated for

gender dysphoria and had undergone ―the appropriate clinical 

treatment‖ for gender transition. The petitions also stated that 

appellants were not listed on the sex offender registry, involved in 

any legal proceedings, placed on probation or parole, seeking to 

avoid creditors, or seeking the name- and sex-designation changes 

for any fraudulent purpose. Ms. Rice‘s petition also documented 

her personal history, the significant emotional distress that she 

endured in the past when presenting herself as a man, and the 

negative treatment she endures now because her ―documentation 

doesn‘t match who‖ she is. 

¶8 The district court granted Mr. Childers-Gray‘s and Ms.

Rice‘s name-change petitions, ruling that all statutory 

requirements had been satisfied. But the district court denied their

sex-change petitions.

¶9 The district court gave two reasons for denying Mr. 

Childers-Gray‘s sex-change petition. First, it held ―there is no 

statute in the State of Utah that sets forth either standards or 

procedures under which the court may consider such request.‖ 

The district court found that such lack of legislative guidance 

meant that a sex-change matter is a nonjusticiable political 

question. Second, the district court denied the sex-change petition 

under the name-change standard. It explained that a name-change 

petition must be denied if it will ―affect the legal rights or duties 

of either the petitioner or anyone else.‖ Applying that standard to 

sex-change petitions, the district court found that granting the 

sex-change petition was undoubtedly bound to affect others‘ 

rights. It then gave numerous hypotheticals in which a sex change

would affect the ―rights and duties of others that interact with‖ 

Mr. Childers-Gray. 

¶10 The district court did not rely on this second reason 

when it denied Ms. Rice‘s sex-change petition. It held only that 

―[t]he procedure for obtaining a sex/gender marker change must 

be set forth by the legislature,‖ and because it was not, the district 
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Opinion of the Court

7

court found itself ―prohibited from invading the legislature‘s 

prerogative on this issue.‖ 

¶11 Appellants appealed the orders denying their petitions 

for sex changes. We consolidated the cases.

11

¶12 During oral argument in January 2018, we noted sua 

sponte that appellants come before us unopposed and questioned 

whether this lack of adversariness deprived us of jurisdiction to 

hear the case. In November 2018, we issued an order staying this 

case pending our decision in In re Gestational Agreement, a case 

that also lacked adversariness and in which we expected to 

address the impact of such posture on our jurisdiction. We issued 

an opinion in that case in August 2019, In re Gestational Agreement, 

2019 UT 40, 449 P.3d 69, and consequently requested 

supplemental briefing from appellants and called for the views of 

the State, through the Attorney General, under rule 25A(c) of the 

Rules of Appellate Procedure. We have jurisdiction under Utah 

Code section 78A-3-102(3)(j).

STANDARD OF REVIEW

¶13 Although we have never reviewed a district court‘s 

decision to grant or deny a petition for sex change, we have 

reviewed decisions on petitions for name change ―under an abuse 

of discretion standard.‖ In re Porter, 2001 UT 70, ¶ 4, 31 P.3d 519.

Because name changes and sex changes are analogous, see infra

¶¶ 40–43, we also review for abuse of discretion a district court‘s 

decision to grant or deny a petition for a sex change. And we 

review the legal questions underlying the determination for 

correctness. See Taylor v. Univ. of Utah, 2020 UT 21, ¶ 13, 466 P.3d 

124. 

¶14 ―We review questions of statutory interpretation for 

correctness, affording no deference to the district court‘s legal 

conclusions.‖ State v. Outzen, 2017 UT 30, ¶ 5, 408 P.3d 334 

(citation omitted). And we review ―the constitutionality of a 

statute for correctness, giving no deference to the lower court‘s 

interpretation,‖ State v. Greenwood, 2012 UT 48, ¶ 26, 297 P.3d 556, 

presuming ―the statute is constitutional‖ and resolving ―any 

reasonable doubts in favor of constitutionality.‖ Brown v. Cox, 

__________________________________________________________

11 For the ease of the reader, we treat the consolidated cases in 

the singular form. 
IN RE SEX CHANGE

Opinion of the Court

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2017 UT 3, ¶ 11, 387 P.3d 1040 (quoting State v. Drej, 2010 UT 35, 

¶ 9, 233 P.3d 476)).

ANALYSIS

¶15 We begin with jurisdiction. Sex-change petitions 

quintessentially ask for a change in a person‘s legal status or 

identification. We have ―judicial power‖ to adjudicate sex-change 

petitions because they seek changes to a petitioner‘s legal status or 

identification, and such ―function[] w[as] intended by the framers 

of our constitution to be included in the constitutional grant to the 

judiciary.‖ In re Gestational Agreement, 2019 UT 40, ¶ 13, 449 P.3d 

69. And so, we have jurisdiction to adjudicate them.

¶16 With jurisdiction to hear sex-change petitions, we move 

to the question of a district court‘s authority to adjudicate them, 

i.e., whether there is a framework for adjudicating such petitions.

Utah district courts have common-law authority, as codified by 

statute, to adjudicate petitions for a name change. In re Porter, 

2001 UT 70, ¶ 8, 31 P.3d 519. Utah law presupposes a district 

court‘s authority to order name and sex changes, see UTAH CODE

§ 26-2-11(1) (referring to ―[w]hen a person born in this state has a 

name change or sex change approved by an order of a Utah 

district court‖), thereby conferring on sex-change adjudication the 

common-law authority existing with respect to name-change 

adjudication. See Maxfield v. Herbert, 2012 UT 44, ¶ 31, 284 P.3d 647 

(―[W]hen a word or phrase is transplanted from another legal 

source, whether the common law or other legislation, it brings the 

old soil with it.‖ (internal quotation marks omitted)). Any lack in 

a statute to detail the content of a sex-change petition has no effect 

on a district court‘s authority to adjudicate and approve such a 

petition because the district court‘s authority is based on common

law and independent from statute. As such, we find ample 

authority in the district court to adjudicate sex-change petitions.

¶17 We then examine whether there are any constitutional 

barriers to our adjudication of sex-change petitions. We hold that 

neither Utah Code section 26-2-11 nor the adjudication of sexchange petitions run afoul of the Utah constitution or separationof-powers principles.

¶18 Finding jurisdiction, authority, and no constitutional 

impediment to adjudicating sex-change petitions, we next 

articulate and explain the test to decide sex-change petitions. In 

doing so, we refute the test identified by the dissent. Our test has

already been used by our district courts, exercising their commonlaw judgment. The test we articulate borrows from our common-
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Opinion of the Court

9

law jurisprudence about name-change petitions and is adapted to 

fit sex-change petitions. We conclude that, as a general rule, sexchange petitions should be granted if (1) they are not ―sought for 

a wrongful or fraudulent purpose,‖ In re Porter, 2001 UT 70, ¶ 8

(quoting Isom v. Cir. Ct. of the Tenth Jud. Cir., 437 So.2d 732, 733 

(Fla. Dist. Ct. App. 1983)), and (2) they are supported by objective 

evidence of a sex change, which includes, at minimum, evidence 

of appropriate clinical care or treatment for gender transitioning 

or change, provided by a licensed medical professional.

¶19 Finally, we apply the test to the petitions before us and 

conclude Mr. Childers-Gray and Ms. Rice met its requirements. 

We accordingly reverse and remand with instructions to enter 

orders granting their sex-change petitions.

I. WE HAVE JURISDICTION TO HEAR THIS CASE

¶20 Before getting to the meat of the matter, we address our 

jurisdiction to hear it.

12 We have jurisdiction to hear matters that 

are within the scope of the ―judicial power of the state.‖ UTAH 

CONST. art. VIII, § 1. Our case law has ―traditionally‖ limited our 

judicial power ―to the adjudication of disputes.‖ In re Gestational 

Agreement, 2019 UT 40, ¶ 12, 449 P.3d 69. So, when ―no dispute 

between opposing parties exists‖—that is, when there is a lack of 

adversariness—we will often, but not always, decline to hear a

case.13 See id. ¶¶ 12–13. Recognizing that this case lacks 

__________________________________________________________

12 Following the structure of our supplemental briefing order, 

in this section we only discuss adversariness concerns. We 

address authority and constitutionality in Parts II and III below.

13 This court recently engaged in a debate ―regarding the 

source of [the adversariness principle] and the limits of our 

judicial power.‖ Salt Lake Cnty. v. State, 2020 UT 27, ¶ 37 n.44, 466 

P.3d 158. And that was not the first time such a debate was had. 

Justice Pearce, concurring in In re Gestational Agreement, , opined 

that adversariness might well be a prudential and not a 

jurisdictional concern because the Utah constitution, unlike the 

federal constitution, does not expressly include the ―case or 

controversy language‖ as a limit on our judicial power. 2019 UT 

40, ¶ 86 (Pearce, J., concurring). And while we find much to 

commend in Justice Pearce‘s analysis, we need not reach the issue 

today. This case, like In re Gestational Agreement and Salt Lake 

County, can be resolved without conclusively deciding this 

(continued . . .)
IN RE SEX CHANGE

Opinion of the Court

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adversariness, we asked appellants and the Attorney General for 

supplemental briefing on two questions: 

(1) Does the lack of adversariness prevent this Court 

from exercising jurisdiction over this matter? (2) Is an 

application seeking approval of an amendment to a 

birth certificate a matter  ̳intended by the framers of 

our constitution to be included in the constitutional 

grant [of power] to the judiciary‘? If not, does it 

resemble other matters our state courts handled at the 

time of statehood?

(Alteration in original) (citations omitted.)

¶21 The appellants and, notably, the Attorney General as 

representative of the State provided identical answers: ―no‖ to our 

first question and ―yes‖ to the second. We agree with their

answers, but, as we explain below, not necessarily with all of their 

reasoning. We hold that we have jurisdiction over sex-change 

petitions because, historically, Utah courts adjudicated changes to

legal status or identification, and they did so without 

adversariness. And, as this opinion explains, sex-change petitions 

seek to change the petitioner‘s legal status or identification. As a 

result, sex-change petitions are within the grant of judicial power,

and we have jurisdiction over them.

A. Our Constitutional Power Is Not Limited to Adversarial Issues

¶22 ―[A]dversariness does not completely define the scope 

of our constitutional power.‖ In re Gestational Agreement, 2019 UT 

40, ¶ 13. Indeed, Utah courts‘ judicial power includes ―functions‖ 

that ―were intended by the framers of our constitution to be 

included in the constitutional grant to the judiciary,‖ even if they 

are ―entirely non-adversarial.‖ Id. One function that Utah courts 

have had since even before statehood is the authority to decide 

name-change petitions—even when the petition lacks 

adversariness. Sex-change petitions have an identical function to 

 

question. And so, again, we leave the ―possibil[ity] that, in a 

future case, a historical analysis of the original meaning of the 

Utah Constitution may lead us to rethink the way our case law 

has described the limits of the judicial power‖ but ―decline to 

revisit that case law unnecessarily here.‖ Salt Lake Cnty., 2020 UT 

27, ¶ 37 n.44.
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name-change petitions, see infra ¶¶ 40, 42, and so we have 

jurisdiction over them, too.

¶23 This opinion holds that the constitutional grant of 

power to the judiciary includes jurisdiction over changes to legal 

status or identification, regardless of the existence (or lack thereof) 

of adversariness. 

¶24 In arguing against the judiciary‘s jurisdiction to hear 

non-adversarial matters, the dissent draws a distinction between 

adverse ―argument‖ and adverse ―interests.‖ See infra ¶¶ 161–180.

Though we find no need today to conclusively adjudicate the 

question of whether the Utah Constitution limits our jurisdiction 

to issues involving adversariness, we will briefly address this 

argument. The dissent explains that adverse argument is not 

constitutionally required, given that arguments may be forfeited 

or waived. See infra ¶ 166. So far, we agree. But the dissent next 

posits that ―adverse interests‖ are ―required as a matter of 

historical practice.‖ Infra ¶ 168 (citing Ann Woolhandler, Adverse 

Interests and Article III, 111 N.W. U. L. REV. 1025, 1032 (2017)). In 

other words, the dissent insists that the existence of adverse 

interests—whether stated, waived, or forfeited—is a prerequisite 

for judicial resolution. According to the dissent, cases with 

adverse interests but no adverse briefing are not non-adversarial 

but merely ―uncontested.‖ Infra ¶ 169.

¶25 We disagree on several grounds. To begin, our case law 

draws no distinction between adverse arguments and interests 

when determining justiciability. Rather, it looks to whether the 

courts have otherwise been granted the substantive power to 

adjudicate the matter, regardless of adversariness. As recently as 

2019, we‘ve held ―that the traditional principle of adversariness in 

our justiciability jurisprudence does not apply‖ in matters in 

which the courts have been otherwise granted a substantive 

power.14 In re Gestational Agreement, 2019 UT 40, ¶ 18 (finding that 

__________________________________________________________

14 The dissent states that in In re Gestational Agreement, this 

court ―reinforced the longstanding general rule that our courts lack 

jurisdiction in the absence of any justiciable controversy between 

adverse parties.‖ Infra ¶ 175 (emphasis added) (quoting In re 

Gestational Agreement, 2019 UT 40, ¶ 12) (internal quotation marks 

omitted). We disagree with this characterization of the court‘s 

opinion in that case. The court recognized the adjudication of 

adoption rights ―to be a substantive category over which Utah 

(continued . . .)
IN RE SEX CHANGE

Opinion of the Court

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courts may validate gestational agreements because the 

―termination and creation of parental rights [is] a substantive 

power intended to be included in the constitutional grant of 

judicial power to the courts . . . despite the lack of adversariness in 

gestational agreement proceedings‖ (footnote omitted)); see also 

Salt Lake Cnty. v. State, 2020 UT 27, ¶ 37 n.44, 466 P.3d 158 (noting 

―that a debate exists regarding the source of th[e] principle 

[against deciding abstract questions] and the limits of our judicial 

power‖).

¶26 Perhaps overlooking this case law, the dissent

significantly relies on a law review article from which it draws the 

distinction and respective jurisdictional requirements of legal 

argument versus interests. See infra ¶¶ 168–72. While we respect 

Professor Woolhandler‘s scholarship, it is not binding on this

court.

¶27 Further, the dissent‘s distinction between adverse 

―argument‖ and ―interests‖ swallows itself. The dissent refutes 

the notion that naturalization proceedings are non-adversarial, 

pointing to Tutun v. United States, 270 U.S. 568 (1926), for the 

proposition that ―[t]he United States is always a possible adverse 

party‖ in such proceedings. Infra ¶ 174 (alteration in original). But 

a court could always identify a ―possible‖ adverse party for any 

matter before it. The dissent‘s examples regarding the societal 

consequences of today‘s decision, infra ¶ 144, provide an example 

of how mere speculation of possible adverse interests might result 

in a judge‘s unilateral identification of adverse interests beyond 

the briefing by the parties and amicus curiae. To put it another 

way, the dissent differentiates between ―possible adverse 

part[ies]‖ and adverse parties that actually appear to represent 

their interests, ultimately equating ―possible adverse part[ies]‖ 

 

courts had historical power to preside, notwithstanding the 

absence of a controversy between adverse parties.‖ In re 

Gestational Agreement, 2019 UT 40, ¶ 13 (emphasis added). To this 

end, the court explained ―that the courts had sufficient power to 

participate in proceedings that lacked a dispute between opposing 

parties,‖ id. ¶ 16—at least in proceedings involving parental 

rights—and did not further consider whether such proceedings 

are non-adversarial or merely ―uncontested.‖ And so, we cannot 

agree with the dissent‘s belief that In re Gestational Agreement

reinforced any adversariness requirement.
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Opinion of the Court

13

with adverse interests. This conception of adverse interests is so 

expansive as to obviate the need for an explicit requirement of 

―justiciable controversy.‖

¶28 The State and appellants also argue that we have 

jurisdiction over this case because there is a potential for adverse 

litigation here, which is sufficient to invoke ―case or controversy‖ 

jurisdiction under United States Supreme Court precedent. See 

Tutun, 270 U.S. at 577.

¶29 It is true that, unlike the statute in In re Gestational 

Agreement, the statute here does not explicitly require 

nonadversariness. Compare UTAH CODE § 78B-15-803(2)(e) (2008),

15

with id. § 26-2-11, and id. § 42-1-1. But because sex-change petitions 

resemble other petitions over which Utah courts had jurisdiction 

at founding, we have jurisdiction to address this matter and 

therefore need not address the potential adversariness argument.

See infra ¶¶ 40–43. We do note, however, the existence of a serious 

debate on this topic.16

__________________________________________________________

15 This statute was amended in 2020, after our disposition of In 

re Gestational Agreement, resulting in a renumbering. The relevant 

provision is now § 78B-15-803(2)(d).

16 Compare James E. Pfander & Daniel D. Birk, Article III Judicial 

Power, the Adverse-Party Requirement, and Non-Contentious 

Jurisdiction, 124 YALE L.J. 1346, 1394, 1402 (2015) (arguing that the 

language in Tutun was ―a stray statement,‖ only 

―hypothesiz[ing]‖ this ground for its decision, and concluding 

that ―it does not make sense to try to explain away ex parte 

proceedings through the possible adversary theory‖), and Michael 

T. Morely, Consent of the Governed or Consent of the Government? 

The Problems with Consent Decrees in Government-Defendant Cases, 

16 U. PA. J. CONST. L. 637, 669 (2014) (stating that Tutun used the 

―possible adverse party‖ language ―in passing . . . but did not 

delve further into the question of adverseness,‖ and that ―[t]his 

approach seems inconsistent with the Court‘s core adverseness 

jurisprudence‖), with Woolhandler, Adverse Interests and Article III, 

111 NW. U. L. REV. at 1056 (arguing that naturalization petitions, 

such as those at issue in Tutun, ―are perhaps Pfander and Birk‘s 

best example of non-contentious jurisdiction, but the Court 

explicitly approved the practice as appropriate under Article III 

(continued . . .)
IN RE SEX CHANGE

Opinion of the Court

14

¶30 The dissent appears to overlook this debate, insisting 

instead that we are establishing that ―our courts can adjudicate 

any case over which we have been granted . . . substantive power 

by the legislature, at least where the decision amounts to a change 

in a person‘s legal status or identification.‖ Infra ¶ 185 (emphasis 

added) (quoting this opinion) (citation omitted) (internal 

quotation marks omitted). Not so. As we emphasized in In re 

Gestational Agreement, this ―substantive power‖ does not flow 

from the legislature; rather, it was intended and understood ―to 

be included in the constitutional grant of judicial power to the 

courts . . . despite the lack of adversariness.‖ 2019 UT 40, ¶ 18. In 

sum, we stand behind our position that adversariness is not a 

requirement for justiciability in matters involving changes to legal 

status or identification. 

B. Utah Courts Historically Have Had Jurisdiction to Adjudicate 

Changes to Legal Status or Identification

¶31 Having shown that adversariness is not a limitation on 

the constitutional grant of power to the courts, at least with 

respect to a person‘s legal status or identification, we now turn to 

whether adjudication of sex-change petitions is within the 

―judicial power‖ granted to the judiciary by article VIII, section 1 

of the Utah Constitution. We first explain why our supplemental 

briefing order, asking if our framers could have intended courts to 

have a constitutional grant to approve ―an amendment to a birth 

certificate,‖ was not quite the right inquiry. Then we address the 

proper inquiry—whether our progenitors understood the courts 

to have power to hear petitions for sex change. We hold that, 

while sex-change petitions were not specifically contemplated at 

the time of statehood, the judicial power nonetheless includes the 

power to hear such petitions because they ―resemble other 

matters our state courts handled at the time of statehood,‖ 

specifically name-change petitions.

¶32 Whether anyone around at the time of the adoption of 

the Utah Constitution intended to include adjudication of a petition 

to amend a birth certificate in the grant of judicial power is the 

 

only after [statutory] provisions for notice to, and potential 

appearance by, the United States‖).
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Opinion of the Court

15

wrong inquiry in this case.17 That is because sex-change and

name-change petitions do not ask the court to approve an 

amendment to a birth certificate. Rather, sex-change and 

name-change petitions today—like the historical name-change 

petitions we discuss below—ask a court to approve a legal change 

to the petitioner‘s name or sex, i.e., a change of legal status or 

identification. It is only after the court approves that change that a 

petitioner may choose to request an amendment to their birth 

certificate from the state registrar. UTAH CODE § 26-2-11.

¶33 The proper inquiry, thus, is whether a petition for sex 

change—not a petition to amend a birth certificate—is a matter 

―intended by the framers of our constitution to be included in the 

constitutional grant [of power] to the judiciary.‖ (Alteration in 

original.)

¶34 That brings us to the next step of our inquiry. We show 

that petitions for a sex change ―resemble other matters our state 

courts handled at the time of statehood‖: petitions for name 

changes. Crucial to this step is the understanding that ―[t]he Utah 

Constitution enshrines principles, not application of those 

principles.‖ South Salt Lake City v. Maese, 2019 UT 58, ¶ 70 n.23, 

450 P.3d 1092. We employ analogies not because doing so is 

necessary to discern a principle, but because it helps us to better 

understand those fundamental principles. Accordingly, we 

discuss Utah courts‘ historical power to preside over namechange petitions. Then we explain that the adjudication of a

name-change petition, when it comes right down to it, is merely

one part of a broader ―substantive category over which Utah 

courts had historical power to preside‖: the adjudication of 

__________________________________________________________

17 Neither the framers of our constitution nor the general 

public specifically contemplated including adjudication of a 

petition to amend a birth certificate in the judiciary‘s 

constitutional grant because, simply put, birth certificates did not 

exist in 1896. And so, birth-certificate changes were not 

contemplated at the time. See Birth Records, UTAH DIV. OF 

ARCHIVES & RECORDS SERV., 

https://archives.utah.gov/research/guides/birth.htm#pre 

(noting that the Utah Department of Health introduced birth 

certificates in 1905 for all individuals born in the state and linking 

relevant databases) (last visited on April 21, 2021).
IN RE SEX CHANGE

Opinion of the Court

16

changes to the legal status or identification of an individual. In re 

Gestational Agreement, 2019 UT 40, ¶ 13. As a result, adjudicating 

changes to the legal status or identification of individuals was a 

―function[] . . . intended by the framers of our constitution to be 

included in the constitutional grant to the judiciary.‖ Id. As we 

explain below, sex-change petitions are petitions to change the 

legal status or identification of an individual because they are 

analogous to name-change petitions, and so adjudicating them is

a function that falls squarely within the judicial power.

¶35 To put it simply, name-change petitions seek to change 

the legal status or identification of an individual because a name 

is one of an individual‘s numerous legal attributes. These legal 

attributes, some of which are indicated on a birth certificate, may 

serve as conditions that shape an individual‘s opportunities and 

obligations, such as marital or civil status. See, e.g., Obergefell v. 

Hodges, 576 U.S. 644, 669–70 (2015) (―[J]ust as a [married] couple 

vows to support each other, so does society pledge to support the 

couple . . . . [States] have throughout our history made marriage 

the basis for an expanding list of governmental rights, benefits, 

and responsibilities.‖). Or they may serve for purposes of 

identification, such as name, sex, and age or birthdate. See, e.g., 

State v. Chism, 2005 UT App 41, ¶ 18, 107 P.3d 706 (noting that the 

date of birth reflected on a state-issued identification card ―is 

reliable and presumptively establishes the bearer‘s age despite his 

or her somewhat younger physical appearance‖); infra ¶ 196 n.94

(noting that a birth certificate ―serve[s] as proof of an individual‘s 

age, citizenship, status, and identity‖ (alteration in original)

(citation omitted)). Thus, information contained in a governmentissued identification document—name, sex, date of birth, 

permanent address—has legal significance.

¶36 Before evaluating the similarities between sex-change 

and name-change petitions, we address the history of Utah courts‘ 

adjudication of name-change petitions. In Utah, an individual has

a ―common law right to adopt another name at will.‖ In re Porter, 

2001 UT 70, ¶ 8, 31 P.3d 519; In re Cruchelow, 926 P.2d 833, 834 

(Utah 1996); accord Moskowitz v. Moskowitz, 385 A.2d 120, 122 

(N.H. 1978) (―[A]t common law a person could adopt another 

name at will.‖); Smith v. U. S. Cas. Co., 90 N.E. 947, 950 (N.Y. 1910) 

(―The elementary writers are uniform in laying down the rule that 

at common law a man may change his name at will.‖); 57 AM. JUR.

2D Name § 16 (2020) (―A person has a common-law right to 

assume or use any name that he or she lawfully chooses.‖); G.S. 
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Opinion of the Court

17

Arnold, Personal Names, 15 YALE L.J. 227, 229 (1906) (―[W]ithout 

statutes, any person may at will change [their] name.‖).

¶37 At common law, the right to change one‘s name did not 

require state assistance. See Smith, 90 N.E. at 950 (―At common law 

a man may lawfully change his name, or by general usage or habit 

acquire another name than that originally borne by him, and this 

without the intervention of either the sovereign, the courts, or 

Parliament.‖ (quoting 21 AM. & ENG. ENCYC. OF LAW (2d Ed.) 

311)). But state recognition, through courts, of a name change 

gave ―greater sanction to it, and ma[de] it more notorious.‖ Davies 

v. Lowndes (1835) 131 Eng. Rep. 1247, 1255. Consequently, courts 

have long held the common-law authority to adjudicate this

individual right. See, e.g., Bearbrook v. Read (1600) 1 Brownl. & 

Golds. 47 (―The name of Confirmation must stand, for Sir Francis 

Grady was christened Thomas, and confirmed Francis, by that 

name he must be called.‖). 

¶38 State legislatures have enacted procedures for courts to 

adjudicate name-change petitions. These statutes do ―not repeal 

the common law by implication or otherwise‖; rather, they serve 

as powerful affirmations of, and in aid of, the courts‘ common-law 

authority. Smith, 90 N.E. at 950 (citation omitted); see also In re 

Porter, 2001 UT 70, ¶ 8 (―Statutes similar to sections 42-1-1 and -2 

are recognized to merely provide a codified process to aid an 

individual‘s common law right to adopt another name at will.‖

(citing In re Cruchelow, 926 P.2d at 834)); In re Knight, 537 P.2d 

1085, 1086 (Colo. App. Ct. 1975) (―Statutes setting forth 

procedures to be followed in changing a name merely provide an 

additional method for making the change.‖); Moskowitz, 385 A.2d 

at 122 (holding that the statutes did not ―abrogate or supersede 

the common law, but merely affirm[ed] and aid[ed] it‖).

¶39 Utah‘s territorial legislature was no different: It 

formally vested the right to adjudicate name-change petitions 

with Utah courts. See Of Change of Names, § 1128, 1884 Utah

Laws 354 (―Applications for change of names must be heard and 

determined by the district courts.‖); see also id. § 1129; Of Change 

of Names, §§ 3861–62, 1888 Utah Laws 422. The State legislature 

did the same. See Names, §§ 1545–47, 1898 Utah Laws 394. But,

like in all other jurisdictions, these legislative actions were 

―merely‖ to ―aid‖ the common-law right. In re Cruchelow, 926 P.2d 

at 834. And our courts have continuously used common-law 
IN RE SEX CHANGE

Opinion of the Court

18

standards to adjudicate this right. See In re Porter, 2001 UT 70,

¶¶ 7–11; In re Cruchelow, 926 P.2d at 834–35.18

__________________________________________________________

18 Before 1884, the territorial legislature had heard namechange applications and approved them in the form of ―private 

laws.‖ See, e.g., Change of Names Act Mar. 13, 1884, ch. LII, 1884 

Utah Laws 136 (changing the names of six people); Name Change 

Act of Feb. 20, 1878, 1878 Utah Laws 166 (changing the name of 

Ephraim Powell to Ephraim Brettel Bolton); Name Change Act of

Jan. 30, 1872, ch. I, § 1, 1872 Utah Laws 1 (surname change of five

people). But the 1896 Constitution expressly took away any 

authority that the territorial legislature might have had to change 

names. UTAH CONST. art. VI, § 26(2) (1896) (―The Legislature is 

prohibited from enacting any private or special laws . . . 

[c]hanging the names of persons.‖).

This historical detail raises the question of whether before 

1884, name-change petitions were of a legislative province rather 

than a judicial one. The answer is no. 

Aside from the sources we describe above that point to courts‘ 

common-law authority over name-change petitions, we find 

support for this proposition in our territorial case law about 

divorce decrees (another personal legal status change). Although 

we have no case law from the period addressing name changes, 

we do have case law about divorce decrees—another area 

forbidden for legislative action in the 1896 Constitution. See UTAH 

CONST. art. VI, § 26(1) (1896). Our territorial supreme court 

explained that any legislative divorce decree was ―granted in the 

exercise of judicial power; that they were recognized as judicial 

subjects and not as legislative.‖ In re Est. of Higbee, 5 P. 693, 697 

(Utah 1885). And our early case law suggests that the territorial 

legislature had invaded the judicial department‘s functions on 

other occasions. See, e.g., In re Handley’s Est., 49 P. 829, 831 (Utah 

1897) (―If we were to affirm the validity of the law in question, we 

would, in effect, say that the legislature may exercise judicial 

powers.‖). 

Building on Higbee, it is clear that article VI, section 26 of the 

1896 Utah Constitution was meant to respect separation of powers 

and was mandated by article V, section 1, which established three 

separate departments of government and forbade any department 

from ―exercis[ing] any functions appertaining to either of the 

others.‖ UTAH CONST. art. V, § 1. Therefore, if anything can be 

(continued . . .)
Cite as: 2021 UT 13

Opinion of the Court

19

C. We Have Jurisdiction to Adjudicate Sex-Change Petitions Because 

They Are Changes to Legal Status or Identification

¶40 Having settled the question of this court‘s power to 

adjudicate non-adversarial name-change petitions as changes to 

legal status or identification, we turn to sex-change petitions. We 

hold that sex-change petitions are likewise within the judiciary‘s 

jurisdictional purview. Sex-change petitions are closely analogous 

to name-change petitions because they are both changes to a 

person‘s legal status or identification. See, e.g., In re Heilig, 816 

A.2d 68, 82 (Md. 2003) (stating that actions to change incorrect 

information on a person‘s birth certificate ―relate principally to 

the legal status or identification of an individual‖). At birth, a 

third party gives a person‘s name and designates their sex. But a 

person experiencing gender dysphoria later in life may seek to 

update their legal status or identification by petitioning for a 

name or sex change. These changes are not just symbolic; they 

help avoid the confusion that can result when people hold 

themselves out as having one name or as being one sex but have 

government identification that says differently.19

¶41 Other courts have observed the similarity between 

name changes and sex changes and have deduced from it that the 

procedures to effect such changes should also be similar. See, e.g., 

Radtke v. Misc. Drivers & Helpers Union Loc. No. 638 Health, Welfare, 

Eye & Dental Fund, 867 F. Supp. 2d 1023, 1025–26, 1033 (D. Minn. 

2012) (explaining that Wisconsin Statutes section 69.15(1) provides 

that a birth-certificate amendment could be made by the state 

registrar if a court issued an order providing for ―name change 

with sex change,‖ and consequently mentioning that a Wisconsin 

state court decision granted such order); In re McDannell, 2016 WL 

482471, at *8 (Ct. Com. Pl. Del. Feb. 5, 2016) (holding that ―since 

the Court of Common Pleas is vested with the authority to change 

names, it is only logical that it is a court of competent jurisdiction 

to consider the petition [for sex change]‖ when both changes are 

 

learned from the legislative acts granting name changes, it is that 

for a limited time our territorial legislature performed a judicial 

function, which it expressly disclaimed in the decade leading up 

to, and in, the Utah Constitution.

19 Indeed, condoning such confusion by refusing a valid 

petition for a name or sex change would obviate the very purpose 

of legal identification. See supra ¶ 35.
IN RE SEX CHANGE

Opinion of the Court

20

stated together in a regulation); In re Change of Birth Certificate, 22 

N.E.3d 707, 708–09 (Ind. Ct. App. 2014) (explaining that the courts 

have authority to adjudicate both changes because of general 

statutory treatment of ―additions to or corrections in a certificate 

of birth‖); In re Heilig, 816 A.2d at 82–83 (equating the two 

changes). We do the same.

¶42 The dissent resists the analogy between name changes 

and sex changes, see infra ¶¶ 181–83, suggesting that name change 

proceedings are a unique ―carve-out.‖ Infra ¶ 183. But such is not 

the nature of reasoning by analogy. Our analogy rests on the 

function shared by name- and sex-change petitions—that is, 

changes to legal status or identification. Buttressing our analogy is 

that the statute positions name and sex change jointly, UTAH CODE 

§ 26-2-11, and that other courts before us have found the analogy 

compelling and relevant. And in another exchange with the 

dissent‘s author, we explained that ―analogies only require 

 ̳similar[ity] in some ways.‘ Requiring identical circumstances 

obviates our ability to use analogies.‖ Ipsen v. Diamond Tree 

Experts, Inc., 2020 UT 30, ¶ 19 n.13, 466 P.3d 190 (first alteration in 

original) (emphasis added) (quoting Analogy, BLACK‘S LAW 

DICTIONARY (11th ed. 2019)). By way of example, in the past we 

held that ―parental termination proceedings‖ are ― ̳analogous to 

[a] court‘s termination of the marriage relationship between a 

husband and wife.‘‖ D.A. v. State (In re W.A.), 2002 UT 127, ¶ 22, 

63 P.3d 607 (alteration in original) (quoting In re Interest of M.L.K., 

768 P.2d 316, 319 (Kan. Ct. App. 1989)). We do not see these two 

proceedings as identical. Instead, we base the analogy on the fact 

that ―[i]n both custody and termination proceedings, the court 

principally determines where and with whom a child should or 

should not live.‖ In re Interest of M.L.K., 768 P.2d at 319. The same 

is true in this case. The district court is called to approve a change 

in a designation both in the name- and sex-change context.

Likewise, our search here is for analogies to situations that would

have been understood to be ―included in the constitutional grant 

of judicial power to the courts,‖ In re Gestational Agreement, 2019 

UT 40, ¶ 18, such that we can appropriately apply the existing 

common law to those situations. We do not search for our 
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Opinion of the Court

21

forebearers‘ specific understanding of the current situation.

20 If we 

had that, we would not need to use analogies.

¶43 In summary, deciding a petition for sex change, much 

like one for a name change, involves adjudication of a change in 

the legal status or identification of an individual. Our progenitors

intended for the adjudication of a person‘s legal status or 

identification to be ―a substantive power . . . included in the 

constitutional grant of judicial power to the court.‖ Id. And so, ―it 

is appropriate for our courts‖ to adjudicate changes to the legal 

status or identification of an individual—specifically, name- and 

sex-change petitions—even if they lack adversariness.21 See id.

__________________________________________________________

20 In further support of the analogy, we note that this court 

spoke broadly in In re Gestational Agreement, recognizing that 

―[c]ertain functions that our courts perform may be both entirely 

non-adversarial and still appropriately fall within the  ̳judicial 

power.‘‖ 2019 UT 40, ¶ 13.

21 The dissent chides us for not inviting adversarial or amicus 

briefing. Infra ¶¶ 198–200. But we ordered supplemental briefing 

on several key constitutional questions. The order solicited the 

views not only from the petitioners but also from the Attorney 

General‘s Office on the questions presented. All supplied 

supplemental briefing, and, notably, the views of the Attorney 

General in its amicus brief were largely in line with the views 

expressed by the court today. The dissent is advocating for yet 

another round of briefing, which would significantly delay the 

resolution of this three-year-old matter. That is something we are 

unwilling to do.

But our disinclination to engage in another round of briefing 

must not be misunderstood as a prioritizing of certain interests 

over others. We do not outright reject the possibility that certain 

sex-change petitions may involve adverse interests. Even though 

lack of adversariness is not a bar to our jurisdiction in changes to 

legal status or identification, adverse interests may certainly play 

a role, though not in the way the dissent suggests: If a third 

party‘s rights are affected by a court‘s order in a name- or sexchange petition, the third party may have standing to file suit 

with respect to the specific interest affected. See, e.g., Parents for 

Priv. v. Dallas Sch. Dist. No. 2, 326 F. Supp. 3d 1075, 1081–82 (D. Or. 

2018) (implicitly finding standing for cisgender students and their 

parents who sued the school district to enjoin it from enforcing its 

(continued . . .)
IN RE SEX CHANGE

Opinion of the Court

22

Therefore, we have jurisdiction to resolve this appeal, and we do 

so now.

II. UTAH COURTS HAVE AUTHORITY

TO ADJUDICATE SEX-CHANGE PETITIONS

¶44 Having established our jurisdiction over this case, we 

turn to whether Utah courts have authority to hear sex-change

petitions. By authority here we mean a framework that allows 

Utah courts to adjudicate a particular matter—in this case, sexchange petitions. Such framework can be statutory- or commonlaw-based. This question is different than our jurisdictional 

inquiry above in Part I, which focuses on whether a Utah court 

has judicial power to hear a non-adversarial case, like a name- or 

sex-change petition.

¶45 The district court here held that it lacked authority to 

adjudicate the petitions and denied them. In its order denying Mr. 

Childers-Gray‘s petition, it explained that there is ―no statute in 

the State of Utah which sets forth either standards or procedures 

under which the court may consider such‖ petition. The district 

court concluded that this legislative silence meant that the 

―standards or procedures‖ ―have simply not yet been 

determined.‖ And in denying Ms. Rice‘s petition, the district court 

stated that because of these reasons, ―it does not have the 

authority to grant the request.‖ Appellants argue that district 

courts do have the authority to adjudicate sex-change petitions. 

We agree with appellants and conclude that the district court

erred.

¶46 The legislature has provided through statute that an 

individual can petition for a sex change and that district courts 

have jurisdiction to decide such a petition. The plain language of 

the statute is ―the first step of statutory interpretation.‖ State v. 

Malo, 2020 UT 42, ¶ 22, 469 P.3d 982 (quoting Garrard v. Gateway 

 

policy allowing transgender students to use the ―restrooms, locker 

rooms, and showers that match their gender identit[ies]‖ on a 

number of claims (excluding a claim against federal defendants 

for violation of the Administrative Procedure Act)). In other 

words, if there comes a time when adverse interests ripen, the 

judicial system will address those rights. We see no reason in 

prohibiting our jurisdiction over sex-change petitions merely in 

anticipation of currently unripe interests.
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Opinion of the Court

23

Fin. Servs., Inc., 2009 UT 22, ¶ 11, 207 P.3d 1227). Here, the plain 

language of Utah Code section 26-2-11 presupposes judicial 

authority to adjudicate sex-change petitions. Utah Code section 

26-2-11(1) states that ―[w]hen a person born in this state has a 

name change or sex change approved by an order of a Utah 

district court . . . a certified copy of the order may be filed with the 

state registrar with an application form provided by the 

registrar.‖ This language unambiguously assumes there is judicial 

authority over the adjudication of name- and sex-change petitions. 

It purports to grant the district courts no new powers. Thus, all 

that Utah Code section 26-2-11(1) does is, as the Attorney General 

eloquently put it in its amicus briefing, ―assume[] that courts have 

preexisting jurisdiction to address name- and sex-change 

petitions.‖ Our ―judicial humility . . . requires us to refrain from 

diminishing‖ this assumption. Bostock v. Clayton Cnty., 140 S. Ct. 

1731, 1753 (2020).

¶47 The statute aids courts in the exercise of their

jurisdiction to decide petitions for name and sex changes, and 

though it does not provide a test to do so, this is not a bar to our 

authority. That neither Utah Code section 26-2-11 nor any other 

statute contains explicit standards or procedures for petitions for 

sex change is of no moment because we find that ―the legislature 

did not intend‖ such silence to obviate the assumption that 

district courts have the authority to adjudicate sex-change 

petitions. See Cox v. Laycock, 2015 UT 20, ¶ 41, 345 P.3d 689. 

¶48 Approaching this gap-filling assignment, we ―seek the 

intent of the legislature,‖ id. ¶ 42, because ―[i]t is the duty of this 

court, according to its best knowledge and understanding, to 

declare the law as it finds it, and determine the intent and purpose 

thereof from the language used by the Legislature in expressing 

such purpose and intention.‖ Eames v. Bd. of Comm’rs, 199 P. 970, 

972 (Utah 1921). We do so by ―analyz[ing] the act in its entirety 

and harmoniz[ing] its provisions in accordance with the 

legislative intent and purpose.‖ Laycock, 2015 UT 20, ¶ 42 (quoting 

Mariemont Corp. v. White City Water Improvement Dist., 958 P.2d 

222, 225 (Utah 1998)). 

¶49 The legislature‘s choice to address name and sex change 

in tandem is a determinative feature of how district courts should 

address sex-change petitions and of our gap-filling mission. Of 

much importance in this decision is the original statutory text 

from 1975: ―Whenever a person born in this state has their name 

and/or sex change approved by an order of a court [of any State or 
IN RE SEX CHANGE

Opinion of the Court

24

U.S. Territory,] . . . a certified copy of the court order may be filed 

with the office of the state registrar upon an application form 

provided by such registrar.‖ 1975 Utah Laws 222 (emphasis 

added). The statute then went on to direct the Board of Health to 

―establish fees to be received for preparation of . . . amended birth 

certificates provided in [the original statutory provision].‖ Id.

¶50 The legislature knowingly and purposefully combined

name and sex changes together. ―[W]hen a word or phrase is 

transplanted from another legal source, whether the common law 

or other legislation, it brings the old soil with it.‖ Maxfield v. 

Herbert, 2012 UT 44, ¶ 31, 284 P.3d 647 (citation omitted) (internal 

quotation marks omitted). When the legislature transplanted 

―name change‖ from the common law, it statutorily planted both 

―sex change‖ and ―name change‖ in the latter‘s ―old soil.‖

Accordingly, it meant for the same type of evaluation to control in 

both changes. And so we fill the gap in standard for sex-change 

adjudication with the common-law principles that control namechange adjudication, with the appropriate adjustments, to ―give 

effect to the legislature‘s intent in light of the purpose that the 

statute was meant to achieve.‖ Monarrez v. Utah Dep't of Transp.,

2016 UT 10, ¶ 11, 368 P.3d 846 (quoting Biddle v. Wash. Terrace

City, 1999 UT 110, ¶ 14, 993 P.2d 875). In filling this statutory gap 

with common-law procedure, we are merely fulfilling our judicial 

duty to give effect to—not to usurp—the statute.

22

__________________________________________________________

22 Our cases state that our common-law authority is not 

dependent on or limited by a statutory provision unless it clearly 

says so. See, e.g., Anderson v. Bell, 2010 UT 47, ¶ 16 n.5, 234 P.3d 

1147 (explaining that not ―every instance that a statutory scheme 

and the common law converge‖ will ―necessarily mean the 

legislature has abolished the common law‖), superseded on other 

grounds by statute, UTAH CODE § 20A-9-502; Williamson v. Farrell, 

2019 UT App 123, ¶ 17, 447 P.3d 131 (holding that district courts 

―retain common-law authority‖ to adjudicate declaratory 

judgments ―even apart from their authority set out in‖ statute).

Indeed, ―we assume, absent a contrary indication, that the 

legislature intends its statutes to work in tandem with our case 

law, and we reconcile the common law with statutory law 

whenever possible.‖ Hill v. Nakai (In re Est. of Hannifin), 2013 UT 

46, ¶ 36, 311 P.3d 1016 (Durham, J., dissenting) (relying on Navajo 

Nation v. State (In re Adoption of A.B.), 2010 UT 55, ¶ 33, 245 P.3d 

(continued . . .)
Cite as: 2021 UT 13

Opinion of the Court

25

¶51 In the name-change context, the Utah Code works in 

tandem with our common-law authority to adjudicate name 

changes. See supra ¶¶ 36–39. Utah Code section 42-1-1 enumerates 

the content of a name-change petition, and section 42-1-2 tells the 

court when it may grant a name-change order. Its plain language 

requires the district court to determine, among other things, 

whether the petitioner has presented adequate proof that proper 

cause exists for granting the name change. Id. But it is our case law 

that imbues the term ―proper cause‖ with meaning, using

common-law precedents. Indeed, we have held that ―proper 

cause‖ means that a petition is not ―sought for a wrongful or 

fraudulent purpose.‖ In re Porter, 2001 UT 70, ¶ 8, 31 P.3d 519

(quoting In re Cruchelow, 926 P.2d 833, 834 (Utah 1996)). This 

standard is not mentioned in the statute, but it does not matter

because the statute, as this court explained in In re Porter, ―merely 

provide[s] a codified process to aid [the] common law right to 

adopt another name at will.‖ 2001 UT 70, ¶ 8; see also In re 

Cruchelow, 926 P.2d at 834. 

¶52 Similarly, we have injected meaning into statutory tests 

based on common-law principles in other areas, such as marital

status and declaratory judgments. See Whyte v. Blair, 885 P.2d 791, 

794–95 (Utah 1994) (holding that ―in determining whether a 

relationship satisfies the requirements of [the common-law 

marriage statute], numerous factors should be considered,‖ before 

turning to explain these factors; as common-law principles, these 

factors are distinct from the enumerated statutory elements and 

indicate the kind of evidence that may serve to meet the statutory 

elements); Williamson v. Farrell, 2019 UT App 123, ¶ 17, 447 P.3d 

131 (mentioning that the ―four  ̳threshold elements‘ for 

 

711; Olseth v. Larson, 2007 UT 29, ¶ 39, 158 P.3d 352; Bishop v. 

GenTec Inc., 2002 UT 36, ¶ 10, 48 P.3d 218). But, ―[i]n the absence 

of applicable constitutional or statutory authority, Utah courts 

employ the common law.‖ Spackman ex rel. Spackman v. Bd. of 

Educ., 2000 UT 87, ¶ 20, 16 P.3d 533; see also UTAH CODE § 68-3-1 

(adopting the common law of England); State v. Rowan, 2017 UT 

88, ¶ 30, 416 P.3d 566 (Himonas, J., concurring) (explaining that if 

this court repudiated the state exclusionary rule, there would be

―a void that would have to be filled by our courts‘ exercising their

common law authority unless and until the legislature chose to 

intervene‖).
IN RE SEX CHANGE

Opinion of the Court

26

declaratory judgment actions‖ used by courts ―do not appear 

anywhere in the Act‖).

¶53 We are not ―mak[ing] pure policy out of whole cloth.‖

Infra ¶ 255. The fact that a field of law, such as sex-change 

petitions, is not governed by its own common law is no bar to our 

authority. Our cited cases do not stand for the proposition that 

when a term is ―transplanted‖ with its ―old soil‖ to a new legal 

context, only that term may be planted in that ―soil.‖ Rather, our 

only established limitation is that we do not engage in a commonlaw analysis that conflicts with statutory guidance. See Rawcliff v. 

Anciaux, 2017 UT 72, ¶ 14, 416 P.3d 362 (―[T]he common law 

assists in defining the scope of the [fiduciary] duty, as long as the 

duty itself is identified by the plain language of the statute and 

our common law does not conflict with any statutory guidance on 

the scope of that duty.‖) None of this disagrees with the dissent 

that our case law ―presuppose[s] the existence of established 

bodies of common law to be retained, or to avoid abolishing.‖ Infra

¶ 248. Of course, the common law must exist in order for a court 

to engage with it, but such a proposition does not preclude our 

ability to apply traditional bodies of common law to analogous 

and statutorily related terms. Doing so is not ―mak[ing] policy out 

of whole cloth‖ but rather is applying existing name-change 

common law to the statutorily and precedentially related sexchange field.23

__________________________________________________________

23 Because there is no common law specific only to sex-change 

petitions, the dissent posits that the ―administrative concept‖ of 

sex change applies. Infra ¶ 278. The dissent relies on New Park 

Mining Co. v. State Tax Comm’n, 196 P.2d 485 (Utah 1948), and Fed. 

Deposit Ins. Corp. v. Phila. Gear Corp., 476 U.S. 426 (1986), to 

support its theory that ―[w]here our legislature uses terms that 

have a settled  ̳administrative interpretation‘ in a particular field, 

that interpretation is understood to be carried forward in the 

statute.‖ Infra ¶ 277. But the Office of Vital Records and Statistics 

has never made such an interpretation. Further, the Office is not 

tasked with making any decisions regarding sex designations; 

rather, it responds without discretion to court orders pursuant to 

Utah Code section 26-2-11(2). There is no room for any 

administrative interpretation under this statutory regime. Further, 

sex is not designated in the first instance by the Office; rather, sex 

is designated (primarily) by medical professionals who 

(continued . . .)
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Opinion of the Court

27

¶54 Neither are we running afoul of the non-delegation 

doctrine. As discussed in detail above, supra ¶¶ 31–39, the 

legislature has recognized the jurisdiction of the courts to 

adjudicate non-adversarial changes to legal status or 

identification. We are not ―suggesting that there is no legislative 

standard that governs‖ sex-change petitions, infra ¶ 306, simply

because we may properly apply the common law associated with

name-change petitions. The legislature may choose to enact a 

substantive standard for sex changes at any time, but so far it has 

not done so.

24 Section 26-2-11 is a statute enacted in aid of the 

court‘s common law authority. And should the legislature find 

issue with our decision today, it has the authority to override the 

common law with statute. Thus, we are not overstepping our 

constitutionally-delegated powers but rather acting with the 

authority the legislature has passed to the courts under section 26-

2-11. We find additional support for our conclusion in the manner

that other jurisdictions, including those with similar statutes, have 

addressed their authority to adjudicate sex-change petitions.

¶55 The Maryland Court of Appeals (Maryland‘s highest 

court) addressed a statute that ordered the secretary of health to

amend a birth certificate ―[u]pon receipt of a certified copy of an 

order of a court of competent jurisdiction indicating the sex of an 

individual born in this State has been changed . . . .‖ In re Heilig, 

816 A.2d 68, 82 (Md. 2003) (alteration in original) (quoting MD.

CODE ANN., Health – General, § 4-214(b)(5) (West 2002) (amended 

2015)).

25 The Court explained that ―the statute, along with other 

statutes in the subtitle of which it is a part, evidences a clear 

 

presumably are not versed in the nuances of administrative 

definitions in the law.

24 The legislature unquestionably knows how to place 

substantive restrictions on our exercise of common law power. 

For example, with respect to name-change petitions, the 

legislature has provided in Utah Code section 77-41-105(8)(a) that 

a court may only grant a name change of someone on the sex and 

kidnap offender registry ―if the name change is not contrary to the 

interests of the public.‖ See also infra ¶ 80.

25 In 2015, Maryland opted to allow persons to change their sex 

designation on their birth certificate through an administrative 

process, without a court order. See 2015 Md. Laws 2538 (codified 

at MD. CODE ANN., Health – General, § 4-214(b)(5) (West 2021)).
IN RE SEX CHANGE

Opinion of the Court

28

recognition by the General Assembly that a person‘s gender can 

be changed and that there are courts with jurisdiction to consider 

and determine whether that has occurred.‖ Id. at 82. 

¶56 The Indiana court of appeals dealt with a statute vaguer

than section 26-2-11 in In re Change of Birth Certificate, 22 N.E.3d 

707, 709 (Ind. Ct. App. 2014). The Indiana statute allowed ―[t]he 

state department [to] make additions to or corrections in a 

certificate of birth on receipt of adequate documentary evidence.‖ 

Id. at 708 (quoting IND. CODE § 16-37-2-10(b)). The court found that

this language ―provides general authority for the amendment of 

birth certificates, without any express limitation (in the statute or 

elsewhere) regarding gender amendments.‖ Id. at 709. The court 

then relied on that statute, ―as well as the inherent equity power 

of a court of general jurisdiction,‖ to hold that trial courts have 

―authority to grant‖ sex-change petitions. Id.; see also In re 

Clemmer, 135 N.E.3d 168, 2019 WL 5382509, at *1 (Ind. Ct. App. 

Oct. 22, 2019) (granting a name- and sex-change petition).

¶57 We recognize that not all courts have found authority in 

such generally articulated statutes as did the Maryland and 

Indiana courts. But we find those courts‘ decisions

distinguishable. In In re McReynolds, the Texas Court of Appeals 

interpreted a statute that provided that to prove their identity and 

age when applying for a marriage license, a person may present

―a court order relating to the applicant‘s name change or sex 

change.‖ 502 S.W.3d 884, 887 (Tex. Ct. App. 2016) (quoting TEX.

FAM. CODE § 2.005(b)(8)). The Texas court of appeals opined that 

because the legislature enacted procedures for name-change 

petitions but not for sex-change petitions, it did not ―intend[] to 

create a new justiciable right of action for a sex change order‖ and 

that the legislature ―would not have left it to the judicial branch to 

define the right‘s substantive elements and procedures.‖ Id. To 

support its outcome, the court then revisited and distinguished 

several prior Texas decisions that presupposed such authority. Id.

at 889–90. But, as the court of appeals itself explained, its decision 

did not foreclose sex changes in the state. Id. at 885 n.2. Unlike in 

Utah, Texas law does not seem to require a court order to amend a 

birth certificate. Rather, Texas Health and Safety Code section 

191.028(b) provides for an administrative procedure to amend a 

birth certificate. The statute prescribes that ―[a]n amending 

certificate may be filed to complete or correct a record that is 

incomplete or proved by satisfactory evidence to be inaccurate. 

The amendment must be in a form prescribed by the department.‖

TEX. HEALTH & SAFETY CODE ANN. § 191.028 (West 2019); see also
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Opinion of the Court

29

McReynolds, 502 S.W.3d at 885 n.2. Additionally, the decision 

ignores the endurance of the common-law right of a person to 

change their name and, consequently, their legal status, even 

when there is no legislation on the matter. Therefore, the basis for 

adjudicating sex-change petitions is different in Utah.

¶58 At least one Ohio court has also held that courts may 

not adjudicate sex-change petitions. See In re Ladrach, 513 N.E.2d 

828, 832 (Stark Cnty. Ohio Prob. Ct. 1987). But Ohio law is 

manifestly different than Utah law. Indeed, an Ohio statute grants 

the executive the authority to amend birth certificates for error 

correction. See OHIO REV. CODE ANN. § 3705.22 (West 2021)

(providing that a birth certificate shall be amended once the 

director of health establishes the alleged facts requiring the 

amendment). Only if one seeks to amend the same data a second 

time is a court order required. See id. And so, in Ohio, a person 

does not need a court order to change their birth certificate (the 

first time around), and the case law from Ohio is immaterial. As 

we explain below, Ohio‘s executive, however, does not allow such 

change. See infra ¶ 59 n.26.

¶59 Bottom line, we have common-law authority to 

adjudicate sex-change petitions because they are petitions to 

change one‘s legal status or identification, just like name-change 

petitions. And we have the authority to adjudicate name-change 

petitions. This conclusion is supported by the legislature‘s 

assumption in Utah Code section 26-2-11 and is further reinforced 

by decisions in other jurisdictions. We accordingly hold that Utah 

district courts have authority to adjudicate sex-change petitions.26

__________________________________________________________

26 We also note that, to our knowledge, only four states in the 

entire union—Idaho, Kansas, Ohio, and Tennessee—do not 

permit transgender individuals to change their sex designation. 

They do so through specific prohibitory or limiting statutes. See

F.V. v. Barron, 286 F. Supp. 3d 1131, 1136 n.4 (D. Idaho 2018); Kyle 

C. Velte, Mitigating the “LGBT Disconnect”: Title IX’s Protection of 

Transgender Students, Birth Certificate Correction Statutes, and the 

Transformative Potential of Connecting the Two, 27 AM. U. J. GENDER 

SOC. POL‘Y & L. 193, 213 (2019) (―Tennessee bars transgender 

people from correcting their birth certificate. The Kansas Division 

of Vital Statistics takes the position that it lacks the authority to 

correct birth certificates for gender transition. In Ohio, although 

state law provides that birth certificates may be amended with a 

(continued . . .)
IN RE SEX CHANGE

Opinion of the Court

30

III. THE POLITICAL QUESTION DOCTRINE

AND ARTICLE V OF THE UTAH CONSTITUTION

¶60 Having concluded that district courts have the 

jurisdiction and authority to adjudicate sex-change petitions, we 

move on to determining whether their doing so violates the 

political question doctrine or article V, section 1 of the Utah 

Constitution.

¶61 First, we must ask whether adjudicating sex-change 

petitions is a nonjusticiable political question. Second, we ask

whether adjudicating sex-change petitions is unconstitutional

under the ―Separation of Powers‖ clause of the Utah Constitution.

See UTAH CONST. art. V, § 1. The district court answered both 

questions in the affirmative, finding that there is ―no statute in the 

State of Utah which sets forth either standards or procedures 

under which the court may consider such‖ petition, and that 

setting standards or procedures would be a legislative task and 

not a judicial one.

¶62 The focus of both the district court and our 

supplemental briefing question was whether the adjudication of 

sex-change petitions is a political question—that is, whether it is 

an ―interference in matters wholly within the control and 

discretion of other branches of government,‖ Skokos v. Corradini, 

900 P.2d 539, 541 (Utah Ct. App. 1995) (citing e.g., Baker v. Carr, 

369 U.S. 186 (1962))—given the ―absence of‖ ―procedural and 

substantive criteria for granting of a sex-change order.‖ Relatedly,

we asked the parties to brief whether, when district courts 

adjudicate sex-change petitions, they ―exercise . . . functions 

appertaining to either‖ the legislative or executive departments of 

government, thus violating the separation-of-powers requirement 

in article V, section 1 of the Utah Constitution. Appellants, of 

course, argued that there is no constitutional violation. And the 

Attorney General, representing the State, declined to answer the 

question, citing our presumption of constitutional validity ―based 

on fundamental separation-of-powers precepts.‖ (Internal 

quotation marks omitted.) 

 

court order, courts in that state refuse to issue such orders.‖ 

(citations omitted)). But this last observation about Ohio seems 

only partially correct since, as we explain above, a court order is 

needed there only to amend a birth certificate a second time 

around. See supra ¶ 58.
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Opinion of the Court

31

¶63 Ultimately, our answer to both queries is a resounding 

no. 

¶64 Article V, section 1 of the Utah Constitution and the 

political question doctrine both focus on the proper roles of each 

branch of government and aim to curtail interference of one 

branch in matters controlled by the others. See Skokos, 900 P.2d at 

541. Indeed, we have referred to article V, section 1 as the 

―Separation of Powers Clause of the Utah Constitution.‖ Friends of 

Great Salt Lake v. Utah Dep’t of Nat. Res., 2017 UT 15, ¶ 16, 393 P.3d 

291. Article V ―regulates and guides the apportionment of 

authority and function between the branches of government.‖ 

Vega v. Jordan Valley Med. Ctr., LP, 2019 UT 35, ¶ 15, 449 P.3d 31.

Similarly, the political question doctrine is ―a tool for maintenance 

of governmental order,‖ Baker, 369 U.S. at 215, that is ―rooted in 

the United States Constitution‘s separation-of-powers premise.‖ 

Skokos, 900 P.2d at 541. It ―prevents judicial interference in matters 

wholly within the control and discretion of other branches of 

government.‖ Id. The United States Supreme Court has identified 

a political question issue, in part, as involving

a textually demonstrable constitutional commitment 

of the issue to a coordinate political department; or a 

lack of judicially discoverable and manageable 

standards for resolving it; or the impossibility of 

deciding without an initial policy determination of a 

kind clearly for nonjudicial discretion; or the 

impossibility of a court‘s undertaking independent 

resolution without expressing lack of the respect due 

coordinate branches of government . . . .

Baker, 369 U.S. at 217.

¶65 Utah courts‘ adjudication of sex-change petitions 

neither involves a nonjusticiable political question nor violates 

article V, section 1 of the Utah Constitution. Our constitution 

grants the district courts, as general jurisdiction courts, the

authority to adjudicate matters that affect a citizen‘s legal rights. 

See UTAH CONST. art. VIII, §§ 1, 5. 

¶66 In adjudicating sex-change petitions—requests for a 

change to one‘s legal status or identification—district courts

exercise one of the basic tenets of their judicial role: their 

common-law authority. That is because, as we explain above, 

supra ¶ 50, the legislature intertwined sex-change petitions with 

name-change petitions and planted the ―sex-change‖ adjudication 

firmly in the name-change common-law adjudication‘s ―old soil.‖ 
IN RE SEX CHANGE

Opinion of the Court

32

See Maxfield v. Herbert, 2012 UT 44, ¶ 31, 284 P.3d 647 (quoting 

Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 

COLUM. L. REV. 527, 537 (1947)). The common law is ―a subject 

lodged firmly within the court‘s sphere.‖ Yazd v. Woodside Homes 

Corp., 2006 UT 47, ¶ 20, 143 P.3d 283. ―It is the responsibility of the 

judiciary to examine those causes of action which it has created, to 

alter them when appropriate, and to abolish them when 

necessary. The basic evolutionary provisions of the common law

have not been repealed.‖ Norton v. Macfarlane, 818 P.2d 8, 17 (Utah 

1991).

27 Indeed, ―common-law pronouncements . . . play a role in 

governing a district court‘s handling‖ of common-law matters, 

Williamson v. Farrell, 2019 UT App 123, ¶ 17, 447 P.3d 131, such as 

personal legal status changes.

¶67 And yes, often, our judicial ―characteristic roles . . . may 

have significant political overtones.‖ Japan Whaling Ass’n v. Am. 

Cetacean Soc’y, 478 U.S. 221, 230 (1986). But that does not mean we 

or our district courts can simply ―shirk‖ those roles by 

announcing them nonjusticiable. Id. History provides us with a 

relevant example: In 1889, our territorial supreme court 

adjudicated a naturalization petition of a ―native of the Hawaiian 

Islands.‖ In re Kanaka Nian, 21 P. 993, 993 (Utah 1889). In that 

procedure—which, similar to the one we adjudicate today, asked

for a change of legal status—our predecessor court did not shy 

away from adjudicating the question whether ―the native 

inhabitants of the Hawaiian islands belong to the white or African 

race,‖ and engaged in the science of the time on the matter. Id.

While we do not endorse that analysis, we see it as an example of 

our long-standing commitment to effectuate the judicial task laid 

upon us by the legislature, despite the sensitivity of the issues 

involved.

¶68 The money line here is this: The exercise of commonlaw authority, when not abrogated by statute, neither runs afoul 

of the political question doctrine nor violates the separation-of-

__________________________________________________________

27 But the ―[j]udicial power to alter, abolish, and create causes 

of action does not, of course, restrict the right of the Legislature to 

have the last word with respect to [the] law, at least insofar as the 

Legislature does not transgress constitutional limitations on its 

powers.‖ Norton, 818 P.2d at 17; see also Cruz v. Wright, 765 P.2d 

869, 871 (Utah 1988) (holding that the legislature can ―alter[] or 

even abolish[] certain rights which existed at common law‖).
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Opinion of the Court

33

powers requirements of article V, section 1. A contrary conclusion 

would mean a doomsday for our historic judicial function. In the 

background looms our presumption of constitutionality, which 

reinforces our holding here. We ―apply a presumption of validity 

[to a challenged statute] so long as there is a reasonable basis 

upon which both provisions of the statute and the mandate of the 

constitution may be reconciled.‖ Richards v. Cox, 2019 UT 57, ¶ 12, 

450 P.3d 1074 (alteration in original) (citation omitted). A statute 

violates the constitution only when it ―clearly violates a 

constitutional provision.‖ Vega, 2019 UT 35, ¶ 12 (emphasis 

added). Accordingly, ―a party seeking to challenge the 

constitutionality of a law‖ faces a heavy burden and must 

―provide a sufficient basis‖ for such challenge, and not merely ―a 

 ̳murky‘ basis for setting it aside.‖ South Salt Lake City v. Maese, 

2019 UT 58, ¶ 96, 450 P.3d 1092 (Lee, A.C.J., concurring). In this 

case, no party—other than the district court, sua sponte—has 

argued that Utah Code section 26-2-11 is unconstitutional, let 

alone met their burden to set it aside. And, with all due respect to 

the district court, its conclusory decision did not do that either.

Regardless, pursuant to rule 25A(b) of the Rules of Appellate 

Procedure—which grants the Attorney General permissive 

intervention ―[a]ny time a party challenges the constitutionality of 

a statute‖—this court called for the views of the Attorney General 

in its August 23, 2019 supplemental briefing order. As noted 

above, the Attorney General declined to answer whether the 

statute was unconstitutional and instead cited the presumption of 

constitutionality existing when no parties have actually made 

such a challenge. See supra ¶ 62.

¶69 The dissent disagrees. We discern three arguments it 

makes to support its contrary position:28 (1) sex-change petitions 

are akin to ―issuing or amending a government record, license, or 

permit,‖ see infra ¶ 154, which are executive functions; (2)

__________________________________________________________

28 The dissent does not explicitly challenge the 

constitutionality of section 26-2-11, yet its arguments are rooted in 

our constitutional principles of separation of powers and the 

scope of ―judicial power.‖ Perhaps the dissent knows that its 

propositions, properly framed, would not withstand our 

presumption of constitutionality. See supra ¶ 68. Regardless, 

because the effect of accepting these arguments is to conclude that 

section 26-2-11 is unconstitutional, we address them as such.
IN RE SEX CHANGE

Opinion of the Court

34

adjudicating sex-change petitions means we undo all limits on our 

judicial role, infra ¶¶ 188–90; and (3) this court runs afoul of the 

nondelegation doctrine by engaging in ―an act of judicial 

legislation.‖ See infra ¶ 305.

¶70 We can easily dispose of these arguments. All are 

premised on assumptions we rebutted above. As for the first 

argument, the dissent casts approvals of ―sex change‖ as 

―licensing‖ because the ―law opts for that form of regulation.‖ 

Infra ¶ 154 n.73 (quoting Carter v. Lehi City, 2012 UT 2, ¶ 47, 269 

P.3d 141). Consequently, it argues that we are without power to 

address such issues because we are ―foreclosed from exercising 

executive power.‖ Infra ¶ 154. But we are not seeking to order 

changes to an individual‘s permit or license. We are operating 

under the substantive grant of power to adjudicate changes to 

legal status or identification and filling a gap which the legislature 

has implicitly asked us to address. See supra ¶¶ 47–48. And 

nowhere do we find evidence that the ―law opts for that form of 

regulation‖ in changes to an individual‘s legal status or 

identification. The dissent offers no explanation for its collapsing 

of the terms ―legal status or identification‖ and ―issu[ing] or 

amend[ing] any government record, license, or permit,‖ see infra

¶ 189, but we find that areas of the law traditionally regulated by 

the executive‘s permitting and licensing function are 

distinguishable from matters involving legal status or 

identification.29 Further, the dissent‘s argument is based on its 

__________________________________________________________

29 The analysis in Carter, cited by the dissent at infra ¶ 154 n.73, 

directs readers to Utah Code section 58-1-103 (2012), which 

created the Utah Division of Occupational and Professional 

Licensing within the executive‘s Department of Commerce. 2012 

UT 2, ¶ 47 n.35. This area of the law does not contemplate changes 

to an individual‘s legal status or identification but rather regulates 

occupations and professions in order to ―protect[] the health and 

safety of the public.‖ See UTAH CODE § 58-1-301(5). Other areas of 

the law that ―opt[] for that form of regulation‖ include driver 

licenses and concealed firearm permits, both of which are 

regulated by the Utah Department of Public Safety, presumably 

for public safety purposes. See UTAH CODE §§ 53-3-103, 53-5-703. 

And the laws concerning construction and fire codes, see id. 

§§ 15A-1-201 to 210; id. §§ 15A-1-401 to 403, also ―opt[] for‖ 

permitting and licensing regulation in order to ―safeguard[] life 

(continued . . .)
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Opinion of the Court

35

assertion ―that the statute was plowing no new ground, and thus 

that the contemplated order for an amendment to a birth 

certificate is to be based on the same type of sex designation made 

at birth.‖ Infra ¶ 141. But that assumption, as we explain below, 

infra ¶¶ 75–81, is wrong. Without such standard, the theory the 

dissent proffers is irrelevant.

¶71 The second argument is likewise premised on faulty 

assumptions. It overlooks the historical substantive power of the 

courts to adjudicate name changes and thus, by analogy, sex 

changes. Infra ¶ 189. And further, our decision today bears little 

threat of opening the jurisdictional floodgate to all nonadversarial matters because it is inherently limited by the 

language of the statute before us and by the analogy we draw 

between name and sex changes. See supra ¶¶ 40–43. 

¶72 The third argument also holds no water. The dissent 

suggests that this court runs afoul of the nondelegation doctrine 

by engaging in ―an act of judicial legislation‖ by seeking to fill any 

gap left open by the legislature. Infra ¶ 305. Such is not the case 

here. As we explained above, supra ¶¶ 46–47, Utah Code section 

26-2-11 is a statute enacted specifically in aid of our common-law 

authority, and the ―core, governing principle‖ in adjudicating sexchange petitions has already been identified through the common 

law of name-change petitions. Thus, because name-change and 

sex-change petitions are analogous in function, we are not 

overstepping our judicial role when we apply the common law of 

name-change petitions as the ―core governing principle‖ in 

adjudicating sex-change petitions.

¶73 We thus conclude that Utah Code section 26-2-11 and 

the district courts‘ adjudication of sex-change petitions violate 

neither the political question doctrine nor any separation-ofpowers principles. Hence, Utah courts do not violate the Utah 

Constitution when adjudicating sex-change petitions.

 

and property.‖ Id. § 15A-1-403(1)(a)(ii). Certainly, legal status or 

identification matters may include public safety functions, but 

while licensing and permitting appear to be based primarily on 

public safety purposes, such is not the primary function of legal 

status or identification. See supra ¶ 35.
IN RE SEX CHANGE

Opinion of the Court

36

IV. THE TEST FOR SEX-CHANGE PETITIONS

¶74 Although Utah courts have the authority to adjudicate 

sex-change petitions, we have not, until now, had the opportunity

to review a district court‘s decision to grant or deny one. That 

means that we have never articulated a test by which Utah courts 

should decide sex-change petitions. We take that step today. To 

do so, we borrow from our common-law jurisprudence about 

name-change petitions and adapt it to fit sex-change petitions. We 

conclude that, as a general rule, sex-change petitions should be 

granted if (1) they are not ―sought for a wrongful or fraudulent 

purpose,‖ In re Porter, 2001 UT 70, ¶ 8, 31 P.3d 519 (citation 

omitted), and (2) they are supported by objective evidence of a sex 

change, which includes, at minimum, evidence of appropriate 

clinical care or treatment for gender transitioning or change by a 

licensed medical professional. But before we detail how we reach 

this test and explain it, we respond to the dissent‘s suggested test.

A. Sex-Change Petitions Are Not Limited to Mistake or SexReassignment Surgery

¶75 In refuting the dissent‘s proffered test, we first explain 

how the dissent erroneously reads a substantive standard for ―sex 

change‖ into a simple, non-substantive statute. Then, for the sake 

of completeness, we show how its proposed standard is 

unworkable and cannot reflect the intent of the legislature.

¶76 The dissent takes a wrong turn at the outset of its 

analytical expedition. It reads into the language of the statute a 

substantive standard for approving a sex change.30 Focusing on 

the word ―sex,‖ it posits that ―[t]he term [ ̳sex‘], in this context, is 

plain‖ and ―sex‖ in this context ―refer[s] to biological sex.‖ Infra

__________________________________________________________

30 The dissent initially concedes that ―[t]he statute itself does 

not expressly articulate a  ̳substantive standard,‘‖ infra ¶ 141, 

presumably to set up its jurisdictional argument that we are 

engaged in a ―novel‖ ― ̳gap-filling‘ role,‖ infra ¶ 245, by simply 

giving effect to the statute and voice to the common law. 

Nonetheless, it implies throughout its argument on the merits that 

―sex‖—rather, ―biological sex‖—acts as a standard intended by 

the legislature. See, e.g., infra ¶¶ 204-06. Indeed, the statement that 

we are attempting to ―establish a new concept of gender identity,‖ 

infra ¶ 200 (emphasis added), implies that the ―new concept‖ 

replaces an existing one.
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Opinion of the Court

37

¶ 217. From there, the dissent reasons that a person can only 

change their ―biological sex,‖ as indicated on the birth certificate, 

by showing that their initial sex designation was essentially a 

mistake or, possibly, that they have undergone sex-reassignment 

surgery. Infra ¶ 223.

¶77 As we have repeatedly noted, the statute does not 

contain an express substantive standard; rather, it functions as an 

aid to the court in the exercise of its common-law authority.

31

Utah Code section 26-2-11(1) provides that when a person ―has a 

name change or sex change approved by an order of a Utah 

district court or a court of competent jurisdiction of another state 

or a province of Canada,‖ that person may file with the state 

registrar a certified copy of the order, along with a standard 

application form. Upon receipt of a complete application, order, 

and fee, the registrar ―shall . . . register it and note the fact of the 

amendment‖ on the original birth certificate. UTAH CODE § 26-2-

11(2)(a). The amendment then ―become[s] a part of the original 

certificate.‖ Id. § 26-2-11(2)(b). So, the statute acknowledges that 

Utah district courts have authority to approve a name change or 

sex change. And it tells the state registrar what it must do with 

such an order. That is literally all the statute says and does.

¶78 Nothing in this text suggests a legislative intent that a 

court approve a sex change only if the petitioner proves their 

initial sex designation was a mistake or they have completed sexreassignment surgery. In fact, the plain language demonstrates a 

legislative intent to omit such a standard. If a petitioner submits a 

complete application, the state registrar ―shall‖ register a sex 

change ―approved by an order of a Utah district court or a court of 

competent jurisdiction of another state or a province of Canada.‖ 

Clearly, the legislature cannot control the standard for ―sex‖ or 

―sex change‖ applied by any other jurisdiction.32 Yet the state 

__________________________________________________________

31 And as we have repeatedly pointed out, supra ¶¶ 47, 50-51, 

54, the legislature, in deciding that a person may seek to change 

the sex designation on their birth certificate, intended to omit a 

substantive standard from the statute, and in doing so expected 

the courts to fill the gap. Otherwise, we would be left with a 

meaningless statute.

32 Canadian courts have similarly been ordering changes to 

birth certificates to reflect an individual‘s gender identity and, in 

the process, have rejected the narrow view of ―sex change‖ 

(continued . . .)
IN RE SEX CHANGE

Opinion of the Court

38

registrar must respect it.

33 Consequently, and with the greatest of 

respect to the dissent, there is nothing in Utah Code section 26-2-

11 that suggests that the legislature intended Utah courts to apply 

a very narrow standard for ―sex change‖ while simultaneously 

 

offered by the dissent. See F.C. v. Alberta (Vital Statistics), 2014 

ABQB 237, paras. 4–7, 65 (Can.); XY v. Ontario (Minister of 

Government and Consumer Services), 2012 HRTO 726, [2012] 

O.H.R.T.D. No. 715 (Can. Ont. Human Rights Trib.).

33 The dissent responds that ―Utah law is the substantive law 

that governs the content of Utah vital records‖ when foreign 

courts adjudicate a sex change to a Utah birth certificate because 

―[n]othing in the statute . . . indicates that the legislature was 

conferring power on the courts of other states to impose their 

substantive law‖ on the content of a Utah birth certificate. Infra 

¶ 288. This interpretation is erroneous for at least three reasons. 

First, the statute‘s plain language unambiguously extends respect 

and reciprocity to court orders of sister jurisdictions. Otherwise, if 

the dissent were correct, a foreign court would be required to 

apply the dissent‘s non-articulated standard for sex change 

(which the dissent argues it could not do anyway, since it claims 

the issue is non-justiciable). Second, the dissent does not explain 

how the state registrar would know whether to accept the foreign 

court order. The statute provides the state registrar with no 

discretion to evaluate a foreign court‘s application of Utah law. 

And third, the legislature knew how to specify elsewhere within 

the Vital Statistics Act when the state registrar should limit its 

reciprocity to Utah law. See UTAH CODE § 26-2-28(1) (requiring the 

registration of any person ―adopted under the laws of this state‖); 

id. § 26-2-17(5) (providing for the immediate transportation 

outside of the death registration district of any dead body or part 

thereof when it ―has been donated under the Revised Uniform 

Anatomical Gift Act or similar laws of another state‖). It did not 

do so in section 26-2-11.

In short, we point to the concurrence‘s observation that ―the 

legislature was not so concerned with setting a substantive 

standard by its use of the terms  ̳name change‘ and  ̳sex change‘ as 

it was with identifying the kinds of birth certificate amendments 

subject to the statute.‖ Infra ¶ 123.
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Opinion of the Court

39

extending the broadest possible reciprocity to foreign 

jurisdictions.34

¶79 The original statutory text further solidifies our view 

that the legislature intentionally omitted from the statute a 

standard for ―sex change.‖ That text provided that ―[w]henever a 

person born in this state has their name and/or sex change

approved by an order of a court [of any State or U.S. Territory], a 

certified copy of the court order may be filed with the office of the 

state registrar upon an application form provided by such 

registrar.‖35 1975 Utah Laws 222 (emphasis added). The statute 

then went on to direct the board of health to ―establish fees to be 

received for preparation of . . . amended birth certificates 

provided in section 26-15-16.5, [the original statutory provision].‖

Id. Combining name change and sex change together like this 

(―name and/or sex change‖) and the reference to amended birth 

certificates reinforce the idea that ―sex‖ refers to the designation 

on the birth certificate; it does not speak to the standard 

__________________________________________________________

34 The dissent warns that our decision here is a ―big deal‖ with 

―sweeping effects on our society.‖ Infra ¶ 236. We disagree—Utah 

courts have been deciding this issue for many years without our 

guidance. See infra ¶ 103 n.53. In fact, our decision today gives 

more certainty to a process that, thus far, has not upended the 

fabric of society. All we can say for sure is that this issue is 

certainly a ―big deal‖ for Mr. Childers-Gray and Ms. Rice. Their 

lives have been put on hold simply by chance—the district court 

in which they submitted their petitions just happened to 

misinterpret the statute, denying the petitioners a path to take 

advantage of section 26-2-11 in the way petitioners in other 

districts have been able to do. Today we put an end to their wait.

35 As we explain above, supra ¶ 2 n.3, the current statute has 

undergone some minor linguistic changes. Specifically relevant 

here, the current statute reads: ―[w]hen a person born in this state 

has a name change or sex change approved . . . .‖ UTAH CODE § 26-2-

11 (emphasis added). No party has argued that such changes 

matter to our interpretation of the statute. However, the dissent 

engages with the meanings of ―sex‖ and a ― ̳change‘ to birth 

certificate  ̳sex‘ designation‖ in 1975, infra ¶¶ 213-19, and we find 

the original legislative use of the ―and/or‖ phrase particularly 

illustrative of the incongruity of the dissent‘s position, and we 

highlight it accordingly.
IN RE SEX CHANGE

Opinion of the Court

40

underlying whether the court should or should not grant the 

order.

¶80 And finally, the legislature has explicitly shown that it 

can and does articulate standards in the name- and sex-change 

context, even if it did not do so here. In Utah Code section 77-41-

105(8), the legislature provided a clear substantive limitation for 

registered sex and kidnapping offenders petitioning to change 

their names. This limitation prohibits a Utah court from granting a 

name change unless it finds that ―the name change is not contrary 

to the interests of the public.‖ UTAH CODE § 77-41-105(8)(a).

¶81 In sum, the plain language of the statute compels the 

conclusion that the legislature deliberately omitted from the 

statute any standard for approving a sex change. In so doing, it 

expected the judiciary to exercise its common-law authority to 

create such a standard. And we do so today, considering all 

indicia of legislative intent and persuasive authority that we can 

muster. See infra Parts IV(B) & (C).

¶82 Further, the dissent‘s fundamental misreading of the 

statutory language leads it to engage with the term ―sex‖ in a 

manner that not only does not fit the statutory language, but

plainly ignores it. See State v. Rushton, 2017 UT 21, ¶ 11, 395 P.3d 

92 (―[W]ords or phrases may appear unambiguous when read in 

isolation, but become ambiguous when read in context. This is 

why  ̳we read the plain language of the statute as a whole, and 

interpret its provisions in harmony with other statutes in the same 

chapter and related chapters[,] . . . avoid[ing] any interpretation

which renders parts or words in a statute inoperative or 

superfluous in order to give effect to every word in the statute.‘‖ 

(alterations in original) (citation omitted)).

¶83 And even if the dissent were correct in its reading, it 

would not satisfactorily answer the question we address here 

because we do not agree with the dissent‘s understanding of the 

term ―sex.‖ Even if the legislature intended for the phrase ―sex‖ to 

be a standard (and it did not), the dissent‘s definition of biological 

sex does not necessarily exclude sex that has been changed in 

conformance with an individual‘s gender transition.

¶84 It is remarkable that a simple, three-letter word can 

inspire such widespread, passionate debate. We are not tasked 

with charting the course for the evolution of language itself, but 

we are obligated to interpret a word or term as it was intended by 

the legislature at the time of drafting. Here, that does not 

necessarily mean determining ―whether the term  ̳sex‘ as used in a 
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Opinion of the Court

41

1975 statute governing the terms of a birth certificate can be 

understood as a reference to the concept of  ̳gender identity‘ that 

has evolved in recent years.‖ Infra ¶ 213. The inquiry is rather 

much simpler and does not require a hindsight view of the 

evolving concept of gender identity—we should be asking, 

merely, what the legislature meant by ―sex‖ in the birth certificate 

context.

¶85 No matter which side of the ―culture war,‖ infra ¶ 212, 

one occupies, it appears generally understood that, in most 

instances, ―sex‖ as designated at birth is based on a medical 

observation of genitalia and physical characteristics. See supra ¶ 4 

n.5. But even if we were to concede that ―sex‖ means ―biological 

sex,‖ the concept very likely extends beyond what a cursory 

physical examination of an infant can reveal. We allude to the 

dissent‘s presentation of dictionary definitions of ―sex‖ existing at 

the time of Utah Code section 26-2-11‘s enactment, see infra ¶ 214

n.100, in conceding that ―sex‖ was primarily defined in terms of 

―structural and functional differences‖ between males and 

females (including reproductive functions).

¶86 However, we are not convinced that a standard of 

―biological sex‖ would preclude the adopted sex of transgender 

individuals. It is worth noting that while the dictionary 

definitions of ―sex‖ provided by the dissent have some focus on 

physiological differences between males and females, many 

definitions focus also on ―psychological,‖ ―behavior[al]‖, or 

―character‖ differences, infra ¶ 214 n.100, which are not 

necessarily tied exclusively to physiology or observable 

characteristics at birth. At the very least, ―biological sex‖ itself is 

ambiguous and may mean more than the sex designated by 

examination at birth.

¶87 The dissent‘s conception of ―biological sex‖ in the birth 

certificate context arises from its understanding that, typically, ―a 

person‘s sex is determined at birth by an anatomical examination 

by the birth attendant.‖ Infra ¶ 216 n.102 (quoting In re Ladrach, 

513 N.E.2d 828, 832 (Stark Cnty. Ohio Prob. Ct. 1987)).

36 But the 

__________________________________________________________

36 Of course, as the dissent points out, some infants are born 

with ambiguous genitalia, which require more thorough 

examinations for sex designation, perhaps beyond external 

physical characteristics. See infra ¶ 216 n.102. However, such 

occurrences requiring examination by medical specialists are rare. 

(continued . . .)
IN RE SEX CHANGE

Opinion of the Court

42

―anatomical examination‖ done at birth contemplates only the 

observable genitalia, which is limited at the neonatal stage. Of 

course, secondary sex characteristics, such as those that may be 

altered by hormone therapy, do not begin to develop until later in 

life. And certainly, ―a baby has no capacity for expression of 

gender identity.‖ Infra ¶ 216. So even if we look only to the 

observable physiological indicators of sex to guide us, many 

transgender individuals would still lie within the dissent‘s 

definition, given that they may later undergo sex-reassignment 

surgery, hormone therapy, or other treatment to bring their 

physical appearances into alignment with their gender 

identities.37 See, e.g., Saru Matambanadzo, Engendering Sex: Birth 

Certificates, Biology and the Body in Anglo American Law, 12 

CARDOZO J.L. & GENDER 213, 219 (2005) (noting that surgical 

procedures often serve to ―bring [an individual‘s]  ̳biological sex‘ 

into line with their gender identity‖). It does not seem that the 

dissent would disagree with this logic. See infra ¶ 223 (stating that 

―a basis for a  ̳change‘‖ in an individual‘s sex designation ―might

be met where a person can demonstrate that the biological 

indicators of sex have been altered‖).

 

See, e.g., Elizabeth Reilly, Radical Tweak—Relocating the Power to 

Assign Sex, 12 CARDOZO J.L. & GENDER 297, 299 (2005) (providing 

an estimate that intersex births occur in 1.7% of live births (citing 

ANNE FAUSTO-STERLING, SEXING THE BODY: GENDER POLITICS AND 

THE CONSTRUCTION OF SEXUALITY 92–95 (2000)); Alice Domurat 

Dreger, “Ambiguous Sex”—Or Ambivalent Medicine? Ethical Issues 

in the Treatment of Intersexuality, 28 HASTINGS CTR. REP. 24, 26 

(1998) (noting that the frequency in which ―sex is doubtful 

because of the external genitalia‖ is ―roughly 1 in 1,500 live 

births‖). Given the rarity of such births, and with all due respect 

to those individuals, we find it is unnecessary to contemplate 

these cases in our analysis. It appears the dissent may agree. See 

infra ¶ 226 (stating that the ― ̳sex‘ designation on a birth certificate 

is an objective determination based on observation of physical 

characteristics‖ (emphasis added)).

37 For example, hormone therapy ―is an effective step for 

enhancing feminine or masculine secondary sex characteristics 

(e.g., voice, facial hair, breast tissue, muscle mass).‖ Dean Spade, 

Documenting Gender, 59 HASTINGS. L.J. 731, 755 (2008).
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Opinion of the Court

43

¶88 But if the dissent defines the term ―biological sex‖ as 

encompassing observable sex characteristics and genetically

controlled sex chromosomes, the statute would be rendered 

nonsensical. In the birth certificate context, sex is generally 

determined by an external ―anatomical examination,‖ not by an 

examination of the individual‘s chromosomal makeup.38 And the 

legislature could not have intended to include consideration of 

sex chromosomes in its conception of ―sex‖ in a statute regarding 

name and sex changes because sex chromosomes are immutable 

and no therapy, treatment, or procedure exist to alter them (at 

least not currently, and certainly not in 1975). See, e.g., Julie A. 

Greenberg, Defining Male and Female: Intersexuality and the Collision 

Between Law and Biology, 41 ARIZ. L. REV. 265, 294 (1999) (―[T]he 

only sex indicators that are truly fixed are chromosomes . . . .‖).

¶89 Additionally, if we were to view ―biological sex‖ as 

including the immutable genetic makeup of an individual, we 

would unearth another absurdity. This standard would leave 

open only the possibilities that a sex change could be approved 

because of a ―discovery of a mistake in the biological sex 

designation made at the time of a child‘s birth, or a showing that 

the biological features of an intersex person have developed 

differently than expected at birth.‖39 Infra ¶ 223. But if ―sex‖ on a 

__________________________________________________________

38 Except in rare cases involving ambiguous genitalia. See supra

¶ 87 n.36.

We also note that chromosomal examinations have their own 

limitations, as evidenced by the story of world-class hurdler 

Maria Patiño. Ms. Patiño was banned from competing in the 1985 

World University Games after a sex chromatin test revealed she 

had the chromosomal makeup of a male (XY). Julie A. Greenberg, 

Defining Male and Female: Intersexuality and the Collision Between 

Law and Biology, 41 ARIZ. L. REV. 265, 273 (1999). Ms. Patiño was 

unaware that she had a condition that caused her ―external 

morphologic sex, phenotype, and self-identification‖ as a female 

to conflict with her chromosomal make-up as a male. Id. 

39 We do not accuse the dissent of making or relying on the 

argument that ―biological sex‖ includes genetic indicators of sex. 

Notably, the dissent recognizes that its ―biological sex‖ standard 

―also might be met where a person can demonstrate that the 

biological indicators of sex have been altered, as by sexreassignment surgery.‖ Infra ¶ 223. Rather, we use the dissent‘s 

(continued . . .)
IN RE SEX CHANGE

Opinion of the Court

44

birth certificate indicates a purely biological trait and not an 

identifier of legal status, then why does one need a court order to 

change it?40 And, again, why does the statute not differentiate 

between ―name change‖ and ―sex change‖ if the former is a legal 

classification and the latter is biological?

¶90 We have said in the past, including in an opinion 

penned by the author of today‘s dissent, that we could not 

possibly attribute ―absurdity‖ to our legislature because such 

―construction‖ is ―so far beyond the realm of the conceivable.‖ 

Graves v. N.E. Servs., Inc., 2015 UT 28, ¶ 71 n.10, 345 P.3d 619. And 

in this case, a construction that ―sex‖ means ―biological sex‖ 

including genetics (one‘s chromosomal makeup) would be ―so 

 

language to highlight why any definition of ―biological sex‖ 

would ultimately fail in this context.

40 The Utah Vital Statistics Act generally requires health care 

professionals to directly file certificates based on purely medical 

observations. See, e.g., UTAH CODE § 26-2-5(3) (requiring a 

―birthing facility administrator or his designee‖ or the ―attending 

physician or nurse midwife‖ to fill out, sign, and file a birth 

certificate with ―medical information‖); id. § 26-2-14 (requiring an 

―institution administrator or his designated representative‖ or a 

physician to ―complete, sign, and file [a] fetal death certificate‖); 

id. § 26-2-13 (requiring a ―funeral service director,‖ or in some 

cases a ―health care professional,‖ to complete and file a certificate 

of death). By contrast, the Act requires a court order in only three 

circumstances: (1) to provide a birth certificate for an adopted 

foreign child, id. § 26-2-28; (2) to ―establish[] the fact, time, and 

place of a birth or death that is not registered,‖ id. § 26-2-15; and 

(3) to approve a ―name change or sex change‖ amendment to a 

birth certificate. Id. § 26-2-11. These situations all deal with the 

establishment of an individual‘s legal status or identification, 

independent from any medical observation.

Again, the dissent argues that ―sex‖ can only be changed due 

to ―discovery of a mistake in the biological sex designation made 

at the time of a child‘s birth, or a showing that the biological 

features of an intersex person have developed differently than 

expected at birth.‖ Infra ¶ 223. Since these two conditions are both 

fundamentally medical observations, we can assume that, if the 

legislature had intended this result, it would have simply allowed 

a health care professional to complete and file the amendment. 
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Opinion of the Court

45

absurd that we are certain that  ̳the legislative body which 

authored the legislation could not have intended it.‘‖ State v. 

J.M.S. (In re J.M.S.), 2011 UT 75, ¶ 41, 280 P.3d 410 (Lee, J., 

concurring) (quoting State ex. rel. Z.C., 2007 UT 54, ¶ 13, 165 P.3d 

1206).

¶91 So, to put it simply, biological sex, as it is understood in 

the birth certificate context, may transform according to how a 

transgender individual chooses to respond to their gender 

dysphoria. But we take this opportunity to caution against relying 

even on the term ―biological sex‖ as defined by observable 

external attributes. Transitioning from male to female or female to 

male is a process, not a switch. We must avoid relying on terms 

that may lead us toward setting a threshold for completion of a 

transition, because that is a line we are not equipped to draw. 

Even relying on the term ―sex-reassignment surgery,‖ infra

¶¶ 219, 223, 240, as a threshold would be unhelpful because it is a 

vague standard. Transgender individuals have an array of 

surgical options by which they can effectuate their transition, if 

that is indeed the route they wish to take. These options include 

facial reconstruction, orchiectomy (removal of gonads), 

vaginoplasty, mammoplasty, mastectomy, hysterectomy, 

vaginectomy, phalloplasty, see In re Heilig, 816 A.2d 68, 78 (Md. 

2003); In re Harris, 707 A.2d 225, 226 (Pa. Super. Ct. 1997), and 

―surgical procedures of non-genital, or non-breast, sites (nose, 

throat, chin, cheeks, hips, etc.) conducted for the purpose of 

effecting‖ the appearance of the adopted sex. O’Donnabhain v. 

C.I.R., 134 T.C. 34, 38 (T.C. 2010) (citation omitted). Further, there 

appears to be little inter- and intra-jurisdictional consensus on the 

exact definition of ―sex-reassignment surgery.‖ Some jurisdictions 

use the term as an umbrella term for all gender-affirming surgical 

procedures. See, e.g., Fields v. Smith, 653 F.3d 550, 552 (7th Cir. 

2011) (― ̳Sexual reassignment surgery‘ means surgical procedures 

to alter a person‘s physical appearance so that the person appears 

more like the opposite gender.‖ (quoting the Wisconsin Inmate 

Sex Change Prevention Act, WIS. STAT. § 302.386(5m) (2010))); 

O’Donnabhain, 134 T.C. at 38 (relying on the World Professional 

Association for Transgender Health‘s Standards of Care, under 

which ―sex reassignment surgery[] consist[s] of genital sex 

reassignment and/or nongenital sex reassignment‖ (emphasis 

added)); Smith v. Rasmussen, 249 F.3d 755, 757 (8th Cir. 2001) 

(noting that ―sex reassignment surgery‖ involves ―several 

different surgical procedures‖ including ―breast reduction and 

contouring‖ and ―phalloplasty‖). Others use it to refer specifically 
IN RE SEX CHANGE

Opinion of the Court

46

to procedures altering the primary sex organs. See, e.g., Campbell v. 

Kallas, 936 F.3d 536, 539 (7th Cir. 2019) (using the term ―sexreassignment surgery‖ to refer to ―surgeries that replace an 

individual‘s existing genitals with approximations of those of the 

opposite sex,‖ in a case analyzing an Eighth Amendment claim). 

Some jurisdictions do not even use the term. See, e.g., Hare v. Minn.

Dept. of Hum. Servs., 666 N.W.2d. 427, 431–32 (Minn. Ct. App. 

2003) (interpreting the term ―gender reassignment services‖ as an 

umbrella term for all ―treatment necessary to address gender 

dysphoria‖); Good v. Iowa Dept. of Hum. Servs., 924 N.W.2d 853, 

856–57 (Iowa 2019) (interpreting the term ―gender-affirming 

surgery‖ to refer specifically to procedures altering an 

individual‘s ―sex characteristics‖). All this is to say we are judges, 

not medical professionals, which is why our standard relies on 

licensed medical professionals to establish that an individual 

petitioner has received what the medical professional deems to be 

appropriate treatment.41 We also note that while we take the time 

to respond to the dissent‘s engagement with the definition of 

―sex,‖ we emphasize again that ―sex‖ was not intended to 

designate a standard in this statute.

¶92 But despite all the dissent‘s guesswork about the 

legislature‘s intent that ―sex‖ means ―biological sex,‖ it matters 

not because the legislature did not use those words. And ―[j]udges 

are not free to overlook plain statutory commands on the strength 

of nothing more than suppositions about intentions or guesswork 

__________________________________________________________

41 But we do understand that health care treatment is 

expensive, and not all individuals are capable of affording or 

accessing the kind of treatment that would effectively change an 

individual‘s external sex characteristics. Further, the cost of sexreassignment surgery is ―much higher‖ for transgender men than 

women. Heilig, 816 A.2d at 78. ―One commentator has asserted 

that a male-to-female operation costs an average of $37,000, 

whereas the average female-to-male operation costs $77,000.‖ Id. 

(citing Aaron C. McKee, The American Dream—2.5 Kids and a White 

Picket Fence: The Need for Federal Legislation to Protect the Insurance 

Rights of Infertile Couples, 41 WASHBURN L.J. 191, 198 (2001)). Given 

these high costs and disparate impacts on transgender men versus 

transgender women, we can imagine that any standard for ―sex 

change‖ that relies on surgical intervention would be vulnerable 

to equal protection challenges.
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Opinion of the Court

47

about expectations.‖ Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1754

(2020). ―We look to laws.‖ Official Transcript of Oral Argument at 

60:17–20 (Kagan, J.), Bostock, 140 S. Ct. 1731 (2020); Transcript of 

Oral Argument at 60:21-22 (Sotomayor, J.), Bostock, 140 S. Ct. 1731 

(2020) (―We don‘t look to predictions. We don‘t look to desires. 

We don't look to wishes. We look to laws.‖)

¶93 When we look to the law here, we see a statute that 

clearly presupposes a district court‘s authority to adjudicate a 

―sex change.‖ We also see a clear and deliberate omission of any 

legislative standard by which a court should do so. Accordingly, 

we exercise our ―judicial power‖ to effect the intent of the 

legislature by fulfilling that statutory gap with our established 

common law, which is precisely what the statute, properly read, 

calls for.

B. Not Sought for a Wrongful or Fraudulent Purpose

¶94 The first prong in the test we articulate adopts the 

common-law jurisprudence regarding name-change petitions.

Generally, sex-change petitions—just like name-change 

petitions—should be granted if they are not ―sought for a

wrongful or fraudulent purpose.‖ See In re Porter, 2001 UT 70, ¶ 8. 

We adopt this prong because name changes and sex changes—

along with the policy reasons for allowing or disallowing them—

are similar. We detail these similarities below before we outline 

the test we have historically applied to adjudicate name-change 

petitions. 

¶95 A name change and a sex change are both changes to 

one‘s personal legal status or identification. Supra Parts I(B) and 

(C). Like with a legal name, a person is assigned a sex designation 

at birth, and it appears on their birth certificate. Like with a legal 

name, a person, later in life, may not identify themselves with 

their birth sex designation.

¶96 The policies underlying the authority of courts to 

approve name changes apply as forcefully to sex changes. The aim 

of facilitating such changes is to promote clarity and avoid 

confusion. See In re Porter, 2001 UT 70, ¶ 11. A ―legal name change 

. . . actually prevent[s] the daily confusion and public 

confrontations which presently plague [a person‘s] dealings with 

the public‖ when their chosen name is different than the one that 

appears on their government identification. In re Harris, 707 A.2d 

at 228. 
IN RE SEX CHANGE

Opinion of the Court

48

¶97 The same is true for sex changes. A person‘s sex 

designation can govern various interactions with the government 

and with the public. Government agencies use sex designation ―to 

validate a transgender person‘s identity when being used to 

access social benefits, services, or other forms of identification.‖ 

Bryanna A. Jenkins, Note, Birth Certificate with a Benefit: Using 

LGBTQ Jurisprudence to Make the Argument for a Transgender 

Person’s Constitutional Right to Amend Identity Documents, 22 

CUNY L. REV. 78, 97 (2019). An Alaska trial court has described 

the problem succinctly in the context of driver licenses: 

By not allowing transgendered individuals to change 

their sex designation, their license will inaccurately 

describe the discernable appearance of the license 

holder by not reflecting the holder‘s lived gender 

expression of identity. Thus, when such individuals 

furnish their license to third-persons for purposes of 

identification, the third-person is likely to conclude 

that the furnisher is not the person described on the 

license.

K.L. v. Alaska Dep’t of Admin., Div. of Motor Vehicles, No.

3AN-11-05431 CI, 2012 WL 2685183, at *7 (Alaska Super. Ct. Mar. 

12, 2012). 

¶98 Ms. Rice‘s own experience supports this account. In her 

sex-change petition, she stated that, as a transgender woman 

whose birth certificate designates her sex as ―male,‖ she is 

―subject to invasive and embarrassing scrutiny, including patdowns, because her documentation doesn‘t match who [she is].‖ 

Matching her identification documentation with her identity 

would significantly reduce any confusion and any misinformed 

treatment. Gone unchecked, such treatment can prevent 

transgender people from effectively participating in the public 

arena, including voting.42 See Julie Moreau, Strict ID Laws Could 

__________________________________________________________

42 It is true that

applying protective laws to groups that were 

politically unpopular at the time of the law‘s passage 

. . . [such as] transgender [people,] . . . often may be 

seen as unexpected. But to refuse enforcement just 

because of that, because the parties before us 

happened to be unpopular at the time of the law‘s 

(continued . . .)
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Opinion of the Court

49

Disenfranchise 78,000 Transgender Voters, Report Says, NBC NEWS

(Aug. 17, 2018, 12:05 PM),

https://www.nbcnews.com/feature/nbc-out/strict-id-lawscould-disenfranchise-78-000-transgender-voters-report-n901696.

¶99 Having established the similarities between namechange and sex-change petitions, we now turn to the test this 

court applies when adjudicating name-change petitions. This 

court‘s case law outlines ―very broad limits‖ to a person who

wants to select ―the name by which he [or she] is known.‖ In re 

Porter, 2001 UT 70, ¶ 11; see In re Cruchelow, 926 P.2d 833, 834

(Utah 1996). And we have held that name-change petitions 

―should generally be granted.‖ In re Cruchelow, 926 P.2d at 834

(citation omitted). This court has also held that one proper cause 

for a name-change petition is to conform a person‘s legal name to 

their identity. See In re Porter, 2001 UT 70, ¶ 11; see also In re 

Cruchelow, 926 P.2d at 834.

¶100 A court may deny a name-change petition only for a 

―substantial reason‖ backed by ―factual support.‖ In re Cruchelow, 

926 P.2d at 834. We have explained that such reasons include a

factually proven ―unworthy motive‖: fraud. In re Porter, 2001 UT 70, 

¶ 7 (citation omitted). On the other hand, a court may not deny a 

petition because of ―[u]nsupported generalizations and 

speculation,‖ including worries that the change could create 

confusion or misunderstanding,43 complicate government 

recordkeeping and notice requirements, cause substantial 

mischief, or create a chilling effect on potential future litigants. In 

re Porter, 2001 UT 70, ¶¶ 7, 9–11; see In re Cruchelow, 926 P.2d at 

834–35.

 

passage, would not only require us to abandon our 

role as interpreters of statutes; it would tilt the scales 

of justice in favor of the strong or popular and neglect 

the promise that all persons are entitled to the benefit 

of the law‘s terms.

Bostock, 140 S. Ct. at 1751.

43 We repeat that the contrary is often true—confusion or 

misunderstanding is very likely to occur if an individual‘s legal 

sex designation does not match their external manifestations of 

gender identity. See supra ¶¶ 40, 96–98. 
IN RE SEX CHANGE

Opinion of the Court

50

¶101 With these principles in mind, we have twice reversed 

denials of name-change petitions. We first did so in In re 

Cruchelow. There, we reversed a district court‘s denial of an 

inmate‘s request to change his name, while in custody, to reflect

his newly adopted religious beliefs. In re Cruchelow, 926 P.2d at 

835. We held that ―unsupported generalizations and speculations‖

about confusion in the prison‘s records and the Board of Pardons 

proceedings are not sufficient to deny such change. Id. We 

accordingly remanded the case to the district court for a hearing 

to consider any evidence supporting the court‘s concerns. Id.

¶102 Then, in In re Porter, we reversed a district court‘s 

decision to deny the appellant‘s petition to change his name to 

―Santa Claus.‖ 2001 UT 70, ¶ 13. Porter argued that he needed the 

name change because he resembled the ―fictional character‖ and 

did numerous activities using that persona. Id. ¶¶ 6, 12. The 

district court found that, if allowed, the name change would

―create confusion‖ and ―misunderstanding‖ and ―could allow for 

substantial mischief,‖ and deter others from suing Porter. Id. ¶ 9. 

We reversed. We explained that there was no evidence to support 

the district court‘s concerns and, even if there were, these 

concerns were not enough to deny a name-change petition. Id.

¶¶ 11–13. We held that we do not sit as arbiters of the prudence of 

names chosen at will. And because Porter already held himself 

out as Santa Claus, ―[a]llowing him to legally change his name to 

reflect his practice of doing so is more likely to avoid greater

confusion.‖ Id. ¶ 11. We remanded with instructions to enter the 

name-change order. Id. ¶ 13.

¶103 Because name and sex changes are analogous, we hold 

that—like a name-change petition—a sex-change petition ―should 

generally be granted unless sought for a wrongful or fraudulent 

purpose.‖ See id. ¶ 8 (quoting In re Cruchelow, 926 P.2d at 834). 

And, as long as a petitioner complies with the second prong of the 

test we announce today, infra ¶ 105, a court may deny a 

sex-change petition only for ―substantial reason‖ backed by 

―factual support.‖44 In re Cruchelow, 926 P.2d at 834.45

__________________________________________________________

44 Below we note that the district court acted inappropriately 

when it made general, slippery-slope arguments about appellants‘ 

petitions. See infra ¶¶ 117–18. The dissent raises similar arguments 

in stating that our ―decision will have far-reaching implications.‖ 

Infra ¶ 144 (―It seems destined, for example, to affect spaces 

(continued . . .)
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Opinion of the Court

51

 

traditionally reserved for cisgender girls and women—sexsegregated sports leagues, school locker rooms, and shelters 

designed as safe spaces for victims of sex abuse.‖ (footnotes 

omitted)).

We reject this line of argument with hammer and tongs. In 

fact, other courts have addressed arguments like those made by 

the dissent and thoroughly rejected them. See, e.g., Grimm v. 

Gloucester Cnty. Sch. Bd., 972 F.3d 586, 614 (4th Cir. 2020) (―The 

Board does not present any evidence that a transgender student, 

let alone [Appellant], is likely to be a peeping tom, rather than 

minding their own business like any other student.‖), reh’g en banc 

denied, 976 F.3d 399 (4th Cir. 2020), petition for cert. filed, No. 20-

1163 (Feb. 19, 2021); Adams by and through Kasper v. Sch. Bd. of St. 

Johns Cnty., 968 F.3d 1286, 1299–1301 (11th Cir. 2020) (noting that 

―[Appellant‘s] presence in the boys‘ bathroom does not jeopardize 

the privacy of his peers in any concrete sense‖); Doe v. Boyertown 

Area Sch. Dist., 897 F.3d 518, 534–36 (3d Cir. 2018) (finding that 

―the appellants unconvincingly tr[ied] to equate mere presence in 

a space with harassing activity‖ and thus failed to meet their

burden of establishing that a transgender student‘s presence in 

bathrooms and locker rooms constituted sexual harassment); 

Hecox v. Little, 479 F. Supp. 3d 930, 979–81 (D. Idaho Aug. 17, 

2020), appeal docketed, No. 20-35813 (9th Cir. Sept. 17, 2020)

(addressing the ―compelling evidence that equality in sports is not

jeopardized by allowing transgender women who have 

suppressed their testosterone for one year to compete on women‘s 

teams,‖ quoting favorably the statement that ―there is a medical 

consensus that the difference in testosterone is generally the 

primary known driver of differences in athletic performance 

between elite male athletes and elite female athletes,‖ and noting 

that the ―policies of elite athletic regulatory bodies across the 

world, and athletic policies of most every other state in the 

country‖ undermine arguments like the dissent is making here

(citations omitted) (internal quotation marks omitted)). This

leaves the dissent‘s ideas not only unsupported but rejected by 

judicial fact-finding and legal analysis.

We note, importantly, that we do not intend to minimize 

feelings and emotions that individuals may have about 

transgender people in traditionally cisgender spaces, but there is 

no legal basis for us to ignore the ―needs, humanity, and decency 

of transgender‖ people either. See Boyertown, 897 F.3d at 532. And 

(continued . . .)
IN RE SEX CHANGE

Opinion of the Court

52

C. Evidence of Appropriate Clinical Care or Treatment For Gender

Transitioning or Change, Provided by a Licensed Medical Professional 

¶104 Even though name and sex changes are similar in 

purpose, they are not identical. At birth, a person‘s name is given 

at the whim of a non-medical party (usually a parent). But a 

person‘s initial sex designation is inherently a medical evaluation

made according to objective observation at birth, typically by a 

medical professional. See F.V. v. Barron, 286 F. Supp. 3d 1131, 1136 

(D. Idaho 2018) (―Sex determinations made at birth are most often 

based on the observation of external genitalia alone.‖). 

¶105 We believe that, much like a sex designation made at 

birth, a change in sex designation should be accompanied by 

objective evidence. As a result, we hold that a petitioner must 

present, at the minimum, evidence of appropriate clinical care or 

treatment for gender transitioning or change, provided by a 

licensed medical professional.

46 We do not require any specific

 

if the rights of cisgender individuals are affected, those 

individuals may have their day in court once their issues are ripe. 

See supra ¶ 43 n.21. 

Ultimately, our decision today does not direct the State to 

allow transgender individuals to change their official 

documents—the legislature has already decided that in Utah 

Code section 26-2-11. It is our role to interpret that statute, and 

that is what we have done today. Nothing more.

45 Clearly, the legislature may adopt a different rule for sexchange petitions. That definition would, of course, need to 

conform to constitutional standards that we need not address 

here.

46 The dissent claims that our standard will allow for ―a birth 

certificate amendment upon a showing of any care or treatment.‖ 

Infra ¶ 308. This claim is unfounded. The licensed medical 

professional that provides such evidence has professional ethical 

commitments, and the evidence of appropriate clinical care or 

treatment for gender transitioning or change provided by them 

must be in keeping with those commitments.

And while we need not engage with the medical standard, we 

note that our review of a dozen Utah district court cases, see infra 

¶ 111, shows that the relevant standard used by medical 

professionals is offered in the Diagnostic and Statistical Manual of 

(continued . . .)
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Opinion of the Court

53

procedure or treatment. Instead, the licensed medical professional 

should provide that the appropriate clinical care or treatment 

conforms with the relevant medical standard of care for gender 

dysphoria.

47

¶106 This standard is prudent based on several authorities: a 

Utah statute defining ―gender identity,‖ federal requirements for 

sex change, case law from other jurisdictions, and the decisions of 

Utah district courts.48

 

Mental Disorders, Fifth Edition (DSM-5) (a standard endorsed by 

our legislature in another context, see infra ¶ 107 n.49). The factsheet regarding ―Gender Dysphoria‖ states that ―[f]or a person to 

be diagnosed with gender dysphoria, there must be a marked 

difference between the individual‘s expressed/experienced 

gender and the gender others would assign him or her, and it 

must continue for at least six months.‖ AM. PSYCHIATRIC ASS‘N,

GENDER DYSPHORIA (2013) (emphasis 

added),https://www.psychiatry.org/File%20Library/Psychiatris

ts/Practice/DSM/APA_DSM-5-Gender-Dysphoria.pdf; see also 

Boyertown, 897 F.3d at 522 (―A transgender [man] is therefore a 

person who has a lasting, persistent male gender identity, though 

that person‘s sex was determined to be female at birth.‖ (emphasis 

added)); Cécile A. Unger, Hormone therapy for transgender patients, 

5 TRANSLATIONAL ANDROLOGY & UROLOGY 877, 878 (Dec. 2016), 

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5182227/pdf/

tau-05-06-877.pdf (noting that the World Professional Association 

for Transgender Health‘s recommended criteria for hormone 

therapy includes ―persistent well-documented gender dysphoria 

. . . diagnosed by a mental health professional well versed in the 

field‖ (emphasis added)).

47 We do not address in this opinion the issue of non-binary 

sex designation because it was not raised by the parties, who each 

seek a binary sex designation change. We leave this question for 

an appropriate case.

48 The dissent refers to our ―evolving‖ use of the term ―gender 

identity.‖ Infra ¶ 149. We do not argue that ―sex‖ means ―gender 

identity.‖ The ―sex‖ designation on a birth certificate is a datum of 

legal status. And consistent with many other state and federal 

authorities, see infra ¶ 107–11, our test allows a person to change 

(continued . . .)
IN RE SEX CHANGE

Opinion of the Court

54

¶107 First, the Utah legislature has opined in another context 

about what evidence is sufficient to prove one‘s gender identity.

The Utah Fair Housing Act addresses how one can show their 

gender identity: 

A person‘s gender identity can be shown by 

providing evidence, including, but not limited to, 

medical history, care or treatment of the gender 

identity, consistent and uniform assertion of the 

gender identity, or other evidence that the gender 

identity is sincerely held, part of a person‘s core 

identity, and not being asserted for an improper 

purpose. 

UTAH CODE § 57-21-2(16).

49 We find this statutory test for proving 

one‘s gender identity suggests a legislative intent as to how one 

might prove why a change to the sex designation on their birth 

certificate is proper.

50 Still, the test we articulate today is bound 

by the historical limitations of our non-adversarial adjudications, 

such as name-change petitions, to which we analogize. As 

explained above, our jurisprudence requires that a petitioner 

show that a sex change is not sought for ―wrongful or fraudulent 

 

that legal status by presenting objective evidence of professional 

medical treatment of the ―gender identity.‖

49 The DSM-5—endorsed in Utah Code section 57-21-2—

defines gender as the ―public[ly] (and usually legally recognized) 

lived role as a boy or girl, man or woman.‖ AM. PSYCHIATRIC 

ASS‘N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL 

DISORDERS: DSM-5, at 451 (5th ed. 2013). Utah Code section 57-21-

2(22) says that ―sex‖ means ―gender.‖

50 The dissent takes issue with our consideration of the Utah 

Fair Housing Act‘s language, insisting that we have ―identifie[d] 

no basis for extending [that statute‘s] definition of  ̳sex‘‖ to the 

statute before us today. Infra ¶ 227. This appears to be a misplaced 

criticism of our analysis—we do not purport to extend the 

definitions contained in the Fair Housing Act across any 

boundaries separating bodies of law. Rather, we are exercising 

our duly granted authority to create a test where the legislature 

intentionally left a gap. Accordingly, we look to the Fair Housing 

Act not in reliance on its language, but merely for guidance in 

creating the test.
Cite as: 2021 UT 13

Opinion of the Court

55

purposes.‖ Supra ¶ 103. In the sex-change context, we cannot see 

how that showing would not require objective evidence. But we 

reject the possibility that a petitioner might prove a change to 

their sex designation through evidence of ―consistent and 

uniform assertion of the gender identity,‖ but not because this is 

not objective evidence (it may well be); rather, we focus only on 

the determination provided by a licensed medical professional

because it mirrors how sex is typically initially designated at 

birth. See supra ¶¶ 4 n.5, 105. Showing a change to one‘s sex 

designation by providing evidence of appropriate clinical care or 

treatment for gender transitioning or change by a licensed 

medical professional is exactly the kind of objective evidence that 

our jurisprudence requires. As such, it is all we require today.51

¶108 Second, when considering a sex change, federal 

authorities have a requirement like the one that we announce 

today. The Social Security Administration guidelines, ―Changing 

Numident Data for Reasons other than Name Change,‖ accept as 

proof of sex change, among other things, ―medical certification of 

appropriate clinical treatment for gender transition.‖ Program 

Operations Manual System, RM 10212.200 Changing Numident Data 

for Reason other than Name Change, SOC. SEC. ADMIN. (June 13, 

2013), https://secure.ssa.gov/poms.nsf/lnx/0110212200. These 

requirements specify which licensed physicians can provide such 

a statement (a doctor of medicine or a doctor of osteopathy) and 

ask the physicians to include in their ―original signed‖ statement 

full details about themselves, to include ―language stating the 

__________________________________________________________

51 Evidence of one‘s medical history may certainly be used to 

make this showing. However, we have privacy concerns about 

requiring any evidence of medical history beyond the immediate 

treatment for gender transitioning or change, so we do not require 

any.

We note here that the appellants before us seek a change in sex 

designation because they do not identify with the designation 

given to them at birth. They do not challenge the initial 

designation as incorrect. A future petitioner may seek a change in 

sex designation simply because the initial sex designation was 

clearly erroneous—perhaps due to a scrivener‘s error or improper 

medical observation. In such a case, medical history or other 

similar evidence may provide the necessary evidence to prove the 

change in sex designation, but we need not decide that issue here.
IN RE SEX CHANGE

Opinion of the Court

56

physician has either treated the individual in relation to the 

individual‘s change in gender or has reviewed and evaluated the 

medical history of the individual in relation to the individual‘s 

change in gender and that the physician has a doctor/patient 

relationship with the individual,‖ and to declare that their 

statement is made ―under penalty of perjury under the laws of the 

United States that the foregoing is true and correct.‖ Id. The Social 

Security Administration‘s requirements note, however, that 

―[s]urgery is no longer required to change the sex field on the 

[Administration‘s database].‖ Id.

¶109 The Social Security Administration is not alone. The 

State Department also allows for sex change on a person‘s 

passport, even before a person has completed the treatment for 

―transition.‖ Change of Sex Marker, U.S. DEP‘T OF STATE, 

https://travel.state.gov/content/travel/en/passports/needpassport/change-of-sex-marker.html (last visited April 21, 2021).

The State Department also asks for proof of ―appropriate clinical 

treatment‖ for sex changes on a person‘s passport. Id. What 

clinical treatment is appropriate is up to the physician: The

―physician determines what appropriate clinical treatment is 

according to acceptable medical practices, standards and 

guidelines, and certifies that [the applicants] have had 

appropriate clinical treatment for transition to either male or 

female.‖ Id. The State Department, however, specifies that

―[s]urgery is not a requirement to get a U.S. passport.‖ Id. 

(emphasis omitted).

¶110 Third, courts in other jurisdictions that lack statutory 

guidance have also required objective evidence. The Indiana 

Court of Appeals held that ―the ultimate focus [of a sex-change 

petition] should be on whether the petition is made in good faith 

and not for a fraudulent or unlawful purpose.‖ In re Change of 

Birth Certificate, 22 N.E.3d 707, 710 (Ind. Ct. App. 2014) (holding 

that the appellant in that case ―made an adequate showing in 

support of his petition‖ because ―[h]e presented ample medical 

evidence regarding his gender transition‖). Delaware and 

Maryland have also articulated an objective medical standard 

requirement, but with a connection to sex-reassignment surgery.52

__________________________________________________________

52 Unlike the Delaware and Maryland courts, we hold that, 

although sex-reassignment surgery may be evidence of sex 

change, it is not required. Other authorities agree. The Indiana 

(continued . . .)
Cite as: 2021 UT 13

Opinion of the Court

57

See In re McDannell, 2016 WL 482471, at *4 (Del. Ct. Com. Pl. Feb. 

5, 2016); In re Heilig, 816 A.2d at 86.

¶111 Fourth, different Utah district courts have been 

adjudicating sex-change petitions in recent years based on such 

objective evidence. Appellants presented, and we have reviewed,

twelve Utah district court decisions issued between 2014 and 2017 

approving sex changes. All but two of the decisions include 

factual findings of objective medical evidence provided by a 

licensed medical professional.

53 See In re Davis, No. 173900047, at 2 

(Utah Dist. Ct. Second Dist. Mar. 27, 2017) (finding that 

―[p]etitioner has been treated and is following‖ the medical 

standards of care given to the petitioner by a licensed physician 

and ―has undergone irreversible genital reassignment surgery‖); 

 

Court of Appeals noted that a sex-reassignment surgery is not 

required for a successful sex-change petition. In re Change of Birth 

Certificate, 22 N.E.3d at 710 n.4; see also In re Name & Gender Change 

of R.E., 142 N.E.3d 1045, 1052–53 (Ind. Ct. App. 2020) (ordering the 

lower court to grant the appellant‘s sex-change petition even 

though the appellant had not undergone a physical sex change). 

Likewise, federal authorities explicitly say that sex-reassignment 

surgery is not required. See supra ¶¶ 108–09. Nor is sexreassignment surgery mentioned anywhere in Utah law. We thus 

hold that ―evidence of appropriate clinical care or treatment for 

gender transitioning or change‖ need not include sexreassignment surgery. This rule is prudent given that there ―is no 

medical consensus that sex reassignment surgery is a necessary or 

even effective treatment for gender dysphoria.‖ Gibson v. Collier, 

920 F.3d 212, 223 (5th Cir. 2019); see also Boyertown, 897 F.3d at 522 

(―Treatment for children and adolescents who experience gender

dysphoria includes social gender transition and physical 

interventions such as puberty blockers, hormone therapy, and 

sometimes surgery.‖ (emphasis added)).

53 In In re Leavitt, the district court simply stated that it had 

―considered the documents filed with the [c]ourt, [and] the 

evidence presented at the hearings,‖ and found ―adequate factual 

basis‖ to grant the petitioner‘s sex-change petition. Case No. 

153900411, at 1–2 (Utah Dist. Ct. Third Dist. June 8, 2015). In In re 

Caldwell, Case No. 143800043, at 1–2 (Utah Dist. Ct. Eighth Dist. 

Oct. 31, 2014), the district court‘s order did not contain findings of 

fact but approved the sex change.
IN RE SEX CHANGE

Opinion of the Court

58

In re Cohen, No. 163902596, at 2 (Utah Dist. Ct. Third Dist. Jan. 3, 

2017) (noting petitioner‘s treatment under the relevant medical 

standards, as evidenced by a licensed medical professional,

without specifying the treatment); In re Manzanares, No. 

163901747, at 2 (Utah Dist. Ct. Third Dist. Sept. 14, 2016) (same); In 

re Fairbourn, No. 163901213, at 2 (Utah Dist. Ct. Third Dist. Aug. 

18, 2016) (same); In re Hardy, No. 153400814, at 2 (Utah Dist. Ct. 

Fourth Dist. Aug. 10, 2016) (same); In re South, No. 163400140, at 2

(Utah Dist. Ct. Fourth Dist. July 8, 2016) (same); In re Walton, No. 

163700026, at 2 (Utah Dist. Ct. Seventh Dist. June 6, 2016) (same);

In re Ivory, No. 153300116, at 2 (Utah Dist. Ct. Third Dist. Feb. 2, 

2016) (same); In re Carmichael, No. 153902067, at 2 (Utah Dist. Ct. 

Third Dist. Jan. 4, 2016) (same); In re Collins, No. 153902244, at 3

(Utah Dist. Ct. Third Dist. Dec. 3, 2015) (same and adding that 

petitioner had ―undergone hormonal replacement therapy,‖ ―has 

been receiving female hormones for decades,‖ and had 

―undergone gender reassignment surgery‖). Although these 

decisions have no precedential value, they show how workable an 

objective medical standard is and how it is connected intrinsically 

with a ―proper cause‖ evaluation of a sex-change petition.

¶112 And so, to conclude, sex-change petitions ―should 

generally be granted unless sought for a wrongful or fraudulent 

purpose.‖ See In re Porter, 2001 UT 70, ¶ 8 (quoting In re Cruchelow, 

926 P.2d at 834). They must also include, at minimum, objective 

evidence of appropriate clinical care or treatment for gender 

transitioning or change, provided by a licensed medical 

professional.

V. THE CASES BEFORE US

¶113 These cases should be remanded with instructions to 

grant the petitions for sex change without any further hearing for 

three reasons.

54

¶114 First, in both cases, the district court granted appellants‘

petitions for name change, finding no ―wrongful or fraudulent 

purpose.‖ See In re Porter, 2001 UT 70, ¶ 8, 31 P.3d 519; In re 

Cruchelow, 926 P.2d 833, 834 (Utah 1996). When a name change is 

connected to a person‘s sex change (as it is in these cases), we can

conclude that the requested sex change has no ―wrongful or 

fraudulent purpose‖ if the requested name change does not. 

__________________________________________________________

54 In this section we refer to the cases separately. 
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Opinion of the Court

59

¶115 Second, the petitioners here complied with the objective 

medical standard that we describe above. Both petitioners 

provided letters from a doctor ―stating that each of them had been 

treated for Gender [Dysphoria] and undergone  ̳the appropriate 

clinical treatment‘ for the gender transition.‖ The doctors‘ letters 

complied with the Social Security Administration standard we 

detailed above.55 See supra ¶ 108. In Ms. Rice‘s case, the district 

court ―declined to make findings on these issues‖ but noted that 

two licensed physicians diagnosed and treated her for ―Gender 

Dysphoria‖ ―in accordance with‖ relevant medical standards. 

¶116 Third, the district court‘s orders were based on a legal 

mistake. In Ms. Rice‘s case, the court only proffered its view that 

―the procedure for obtaining a sex/gender marker change must 

be set forth by the legislature and the Court is prohibited from 

invading the legislature‘s prerogative on this issue. Thus, the 

request to change Petitioner‘s legal sex/gender marker is not a 

properly justiciable question.‖ But its denial of Mr. ChildersGray‘s petition, issued eight days before that, revealed 

―[u]nsupported generalizations‖ and concerns—considerations 

that our case law strictly prohibits. See In re Porter, 2001 UT 70, ¶ 7.

The court proclaimed that ―[r]egardless of the sincerity or the 

intensity of the desire of any individual to display any particular 

physical appearance, some biological facts are not subject to 

voluntary modification.‖ The court then continued on what we 

can generously describe as a page of hypotheticals and slipperyslope arguments with no factual basis. 

__________________________________________________________

55 And while we do not require that each petition complies 

with the Social Security Administration standard, we do 

recognize that such compliance is one way to meet the 

requirements of our test.
IN RE SEX CHANGE

CHIEF JUSTICE DURRANT, concurring in part, dissenting in part,

and concurring in the judgment

60

¶117 We emphatically disavow such language and 

propositions. ―Ours is a society of written laws. Judges are not

free to overlook plain statutory commands on the strength of 

nothing more than suppositions about intentions or guesswork 

about expectations.‖ Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1754

(2020). As for the district court‘s declaration that ―some biological 

facts are not subject to voluntary modification,‖ the reader must 

be clinically aware by now that the sex change we are discussing

has less to do with biology than with identity. See supra ¶¶ 84–91. 

And as for the hypotheticals suggested by the district court, we 

generally frown upon unsupported slippery-slope arguments. See, 

e.g., Ipsen v. Diamond Tree Experts, Inc., 2020 UT 30, ¶ 18, 466 P.3d 

190. We disapprove of them even more when they are used to 

curtail common-law-based individual rights. See In re Porter, 2001 

UT 70, ¶ 7. 

¶118 Consequently, we hold that appellants have met the 

requirements we outlined above and that their petitions for sex 

change should be granted.

CONCLUSION

¶119 The adjudication of sex-change petitions lies squarely 

within the power granted to Utah courts by the Utah Constitution. 

Our district courts have the authority to adjudicate such petitions

without any constitutional impediment. In order to prevail on 

such a petition, a petitioner must: (1) show the petition is not 

made for any ―wrongful or fraudulent purpose,‖ and (2) include 

objective evidence about the sex change reflecting the petitioner‘s 

identity, at minimum, in the form of evidence of appropriate 

clinical care or treatment for gender transitioning or change, 

provided by a licensed medical professional. 

¶120 Mr. Childers-Gray and Ms. Rice have met these 

requirements. Therefore, we reverse and remand this case with 

instructions to enter orders granting their sex-change petitions.

CHIEF JUSTICE DURRANT, concurring in part, dissenting in part, 

and concurring in the judgment:

¶121 Our task with this statute, as with any, is to endeavor to 

discern legislative intent. We have traditionally employed a 

number of tools in conducting this inquiry. We begin with the 

words of the statute themselves and, where appropriate, look to 

the structure of the statute, both internally and in relation to other 
Cite as: 2021 UT 13

CHIEF JUSTICE DURRANT, concurring in part, dissenting in part,

and concurring in the judgment

61

relevant statutes. A central focus of the debate between the 

majority and the minority here is whether in using the term ―sex 

change‖ the legislature intended to set a substantive standard for 

when a birth certificate may be amended to reflect a different sex, 

or rather, whether the legislature intended only to establish the 

procedural mechanism for effecting a birth certificate amendment, 

using the terms ―sex change― and ―name change‖ merely to 

identify the two types of amendments for which that mechanism 

may be employed.

¶122 I am persuaded by the majority‘s argument that the 

legislature did not intend its use of the term ―sex change‖ in 

section 26-2-1156 to be read as a substantive standard. I so 

conclude for a number of reasons. 

¶123 First, I am convinced by the majority‘s argument 

regarding the broad reciprocity required by the statute.57 Under 

the statute, the registrar is required to amend a birth certificate 

upon receipt not only of an order from a Utah district court, but 

upon receipt of an order from other states or even Canadian 

provinces. This is so regardless of the particular substantive 

standards employed by these states or provinces with respect to 

name or sex changes.58 This is not an instance of other 

jurisdictions forcing their substantive law on Utah. It is an election 

by the Utah legislature to defer to the law of other states and 

provinces with respect to name and sex changes on birth 

certificates. It suggests to me that the legislature was not so 

concerned with setting a substantive standard by its use of the 

terms ―name change‖ and ―sex change‖ as it was with identifying 

the kinds of birth certificate amendments subject to the statute. It 

further suggests to me that the legislature intended the statute to 

function as a somewhat routine procedural mechanism by which 

a birth certificate amendment may be effected, rather than as a 

substantive direction as to what constitutes a sex change. Further, 

the statute says nothing about the legal effect of a name or sex 

designation on a birth certificate. 

__________________________________________________________

56 UTAH CODE § 26-2-11.

57 Supra ¶ 78.

58 Supra ¶ 78 n.33.
IN RE SEX CHANGE

CHIEF JUSTICE DURRANT, concurring in part, dissenting in part,

and concurring in the judgment

62

¶124 Second, I find an important interpretive clue in the 

statute‘s structure. As the majority notes, the terms ―sex change‖ 

and ―name change‖ are bundled together.59 The legislature makes 

no attempt in the statute to distinguish them in any way, 

including with respect to the standard of proof. Certainly, a sex 

change is far more momentous than a name change. An 

individual‘s sex is considerably more consequential, both in 

substance and legal implication, than an individual‘s name. But 

the fact that these two kinds of changes are very different matters, 

both in magnitude and legal consequence, does not appear, given 

how the statute is structured, to be the focus of the legislature.

Rather, the legislature appears to be focused on the way in which 

they are similar—they are both identifiers on a birth certificate.

My reading of the statute suggests that for purposes of birth 

certificate amendment, and I emphasize this limited scope, the 

legislature intended that name changes and sex changes be 

treated in the same way, including in the standard of proof to 

which they are subject. The statute certainly includes nothing to 

suggest they should be treated differently. 

¶125 My third reason for joining the majority on this point is 

also tied to the coupling of name change with sex change in the 

statute. Certainly no one is suggesting that the term ―name 

change,‖ as used in the statute, constitutes a substantive standard.

I think it unlikely, given the coupling of the two terms, that the 

legislature intended the term ―sex change‖ to constitute a 

substantive standard and not the term ―name change.‖ In sum, I 

conclude that, although the statute does not purport to set forth a 

substantive standard, either with respect to a name change or a 

sex change, the legislature did, by coupling the terms, evince an 

intent that they be treated in a similar manner, including in the 

substantive standard to which they are subject. 

¶126 While it seems clear, at least to me, that the legislature 

intended that both kinds of birth certificate amendments be 

subject to the same standard of proof, the question remains what 

standard the legislature intended. The answer is an easy one with 

respect to a name change. The standard for such a change is set 

forth in section 42-1-2. A person seeking to have a name change 

recognized by the state must establish that the change is sought 

__________________________________________________________

59 Supra ¶ 79.
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CHIEF JUSTICE DURRANT, concurring in part, dissenting in part,

and concurring in the judgment

63

for ―proper cause.‖ As the majority notes, we have interpreted 

―proper cause‖ in the name change context to require that the 

change not be ―sought for a wrongful or fraudulent purpose.‖60

¶127 The legislature has passed no such statute with respect 

to those seeking to have a sex change recognized by the state.

Given the structure of section 26-2-11, which couples name and 

sex changes and makes no attempt to suggest they should be 

subject to different standards, I think it reasonable to conclude 

that the legislature intended to impose no greater burden on those 

seeking a name change on their birth certificate than those seeking 

a sex change on their birth certificate. This may or may not be 

good policy, but that is of no consequence for our interpretive 

task. Our role is to ascertain legislative intent. And I see nothing 

in the language or structure of the statute suggesting that the 

legislature intended that the two types of birth certificate 

amendments be subject to different standards of proof. I would 

therefore employ the same proper cause standard the legislature 

has explicitly adopted for name changes to those seeking to have 

their birth certificate amended to reflect a sex change. And I 

would interpret the term ―proper cause‖ for purposes of a sex 

change amendment to a birth certificate in the same way we have 

interpreted that term in the name change context—to require that 

the petitioner show the change is not sought for a wrongful or 

fraudulent purpose. 

¶128 While everything I have written to this point is 

consistent with and supportive of the majority opinion, I do part 

paths in some respects.

¶129 I would not, as does the majority, invoke our common 

law authority in this case, except to the extent that I would look to 

our caselaw on the question of how we have interpreted the 

statutory standard of proper cause in the name change context. In 

other words, I do not think it necessary for us to rely upon the 

majority‘s argument that, by presupposing a district court‘s 

authority to order name and sex changes the legislature 

―conferr[ed] on sex-change adjudication the common-law 

__________________________________________________________

60 Supra ¶ 51.
IN RE SEX CHANGE

CHIEF JUSTICE DURRANT, concurring in part, dissenting in part,

and concurring in the judgment

64

authority existing with respect to name-change adjudication.‖61 I 

see the problem more as one of statutory interpretation. 

¶130 In summary, my view of the appropriate interpretation 

of the statute proceeds as follows: (1) although the structure of 

section 26-2-11 indicates a legislative intent that name and sex 

change amendments to a birth certificate be subject to the same

procedural mechanism and the same standard of proof, the 

statute does not provide that standard; (2) section 42-1-2 does, 

however, provide a standard for a name change – proper cause;

(3) in light of the legislature‘s apparent intent that name and sex 

changes be treated uniformly, I would apply this same proper 

cause standard to those seeking to amend their birth certificate to 

reflect a sex change. In other words, rather than looking to the 

common law, I would look to section 42-1-2 for the appropriate 

standard. Although the majority does rely upon section 41-2-2 for 

the first part of its proposed standard, it relies solely upon the 

common law for the second part.62 

¶131 The majority articulates its two-part standard in this 

way: first, sex-change petitions ―should generally be granted 

unless sought for a wrongful or fraudulent purpose‖;

63 and 

second, ―they are supported by objective evidence of a sex change, 

which includes, at minimum, evidence of appropriate clinical care 

or treatment for gender transitioning or change, provided by a 

licensed medical professional.‖64 I would characterize the 

applicable standard differently. In order to more closely parallel 

the statutory standard for name changes, I would stop at the 

majority‘s first prong. So my proposed standard would simply be 

that a person seeking a birth certificate amendment to reflect a sex 

change must establish that the change is sought for proper cause.

And I would interpret the term ―proper cause‖ as does the 

majority, and as our court has done in the past, to mean that the 

change is not sought for a wrongful or fraudulent purpose. 

__________________________________________________________

61 Supra ¶ 16.

62 Supra ¶ 18.

63 Supra ¶¶ 103, 112 (citations omitted).

64 Supra ¶ 18.
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

65

¶132 But rather than requiring objective evidence of 

treatment as an independent second requirement, I would 

characterize such evidence as one category of evidence that may 

be employed by a petitioner in order to establish proper cause.

And I would conclude that the two petitioners in the case before 

us have provided more than ample evidence, medical and 

otherwise, of proper cause. So I would not set forth a definitive 

minimum standard for what must be shown to establish proper 

cause by a petitioner seeking a sex change amendment to a birth 

certificate. The structure of section 26-2-11, which presupposes the 

authority of the court to issue name and sex change orders 

without providing a standard of proof, as well the legislature‘s 

use of the broad ―probable cause‖ standard in section 42-2-1 

(which I argue is the most likely candidate for the legislature‘s 

intended standard for sex changes) both suggest a legislative 

intent that district court judges be accorded broad discretion with 

respect to these matters. I would allow the parameters of the 

scope and nature of the evidence necessary to establish proper 

cause under section 26-2-11 to develop over time, as district court 

judges exercise this broad discretion. 

¶133 I have made my best effort to read the tea leaves of the 

legislature‘s intent in passing section 26-2-11. And I have great 

respect for the scholarly and thorough opinions authored by 

Justice Himonas and Associate Chief Justice Lee. They are both 

sincere attempts to answer a difficult interpretative question. But 

it should be noted that, despite our best efforts, in the end it is, as 

it should be, the legislature that has the last word. If it disagrees 

with the interpretations of section 26-2-11 we have advanced in 

these three opinions, the legislature of course has the power to 

amend the statute or pass an altogether different statute. And in 

the event it decides to do either, these opinions should prove 

helpful in that effort because, taken together, they provide a 

rigorous and in-depth exploration of both sides of the issues in 

this important area of the law.

ASSOCIATE CHIEF JUSTICE LEE, dissenting:

¶134 I endorse the values of personal dignity and 

individual determination. And I give voice to those values in the 

respect I pay to others. I have paid and will pay such respect in 

my personal interactions with transgender persons—in using 

their preferred names and pronouns and otherwise respecting 

their right of self-determination.
IN RE SEX CHANGE

ASSOCIATE CHIEF JUSTICE LEE, dissenting

66

¶135 I have personal, moral grounds for so doing. Yet this 

is not a case about personal interactions or individual morality. It 

is a case about government records, and the legal grounds for 

amending them. Those grounds are controlled by law. And the 

law in question leaves no room for the decision made by this court 

today.

¶136 Since 1975 the Utah Code has provided for a court 

order directing an amendment to a birth certificate‘s ―sex‖ 

designation. For decades this designation has been understood as 

a reference to biological sex—a determination made at birth, 

based on physical observation. But the petitioners ask us to 

transform the designation of biological sex into a designation of 

gender identity. They assert that their gender identity is not in line 

with their biological sex at birth. And they ask us to reform our 

law in a manner allowing an amended entry on their birth 

certificates reflecting their gender identity instead of their 

biological sex.

¶137 Today a majority of our court accepts that invitation. 

It takes the statutory reference to sex as an invitation for our court 

to inject new meaning into the statute by making common-law 

policy in this field. Supra ¶ 16. And it exercises that policymaking 

power by establishing a new law that is as permissive as any law 

in any state in the union, under a right to an amended birth 

certificate for any person who has received ―appropriate clinical 

care or treatment for gender transitioning or change.‖ Supra ¶ 112.

¶138 The court claims to be establishing an ―objective‖ 

standard based on medical evidence. Supra ¶ 112. But the 

majority‘s standard does not require a medical diagnosis or 

prescribe an objective benchmark. It provides for an amendment 

to a birth certificate whenever a petitioner asserts that he or she 

has received ―appropriate‖ care or treatment for ―gender 

transitioning.‖ See supra ¶ 112; see also supra ¶ 105 n.46 (citing the 

DSM-5 criteria for diagnosis of ―gender dysphoria‖ but stating a 

standard that requires no diagnosis but only a showing of 

―appropriate clinical care or treatment‖). This is not the statutory 

concept of sex for a Utah birth certificate. It is a complete 

transformation of that longstanding concept by a majority of this 

court.

¶139 I dissent from this decision. It is a double departure 

from longstanding limits on our judicial power. The court is 

exceeding the bounds of our jurisdiction in deciding a case in 

which there is no adverse party—only a request from those 
Cite as: 2021 UT 13

ASSOCIATE CHIEF JUSTICE LEE, dissenting

67

seeking an amendment to their birth certificates. And it is 

overriding the terms of the Utah Code in treating a reference to a 

change in the biological sex determination made at birth as an 

invitation for our courts to make new law in an exercise of 

common-law policymaking power.

¶140 This decades-old statute is not a delegation of 

common-law policymaking power. It is a reflection of the settled 

understanding of the concept of sex as reflected on a birth 

certificate. The underlying concept is clear with regard to the 

designation made at birth, as the majority itself concedes. See

supra ¶ 85 (acknowledging that it is ―generally understood‖ that 

the designation of sex at birth ―is based on a medical observation 

of genitalia and physical characteristics‖); supra ¶ 89 n.40 (noting 

that Utah law contemplates that ―health care professionals‖ will 

submit birth ―certificates based on purely medical observations‖); 

supra ¶ 104 (conceding that ―a person‘s initial sex‖ designation is 

based on ―a medical evaluation made according to objective 

observation at birth‖). And the same concept should be 

understood to be carried forward to the analysis of the basis for an 

order for an amendment to that same designation.

¶141 The statute itself does not expressly articulate a 

―substantive standard‖ for entry of the order. See supra ¶ 54. But 

the statute does speak to the type or ―kind[] of birth certificate‖ 

designation that is subject to change under the statute. Supra ¶ 78

n.33. And the lack of any further standard accordingly cuts 

against the notion of legislative delegation of common-law 

policymaking power. It suggests that the statute was plowing no 

new ground, and thus that the contemplated order for an 

amendment to a birth certificate is to be based on the same type of 

sex designation made at birth.

¶142 This follows from the canon of consistent meaning—

the presumption that the established meaning of a word in a 

given body of law carries over to other uses of the same term used 

elsewhere within that same law. See Cannon v. McDonald, 615 P.2d 

1268, 1270 (Utah 1980). It is also reinforced by the non-delegation 

doctrine set forth in our case law, see State v. Briggs, 2008 UT 83, 

¶¶ 13–14, 199 P.3d 935, and the settled presumption that our 

legislature is not hiding ―elephants in mouseholes.‖ Rutherford v. 

Talisker Canyons Fin., Co., LLC, 2019 UT 27, ¶ 53, 445 P.3d 474 

(quoting Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001)). 

A delegation of common-law power to reform the traditional 
IN RE SEX CHANGE

ASSOCIATE CHIEF JUSTICE LEE, dissenting

68

concept of biological sex would be a large elephant. And a statute 

speaking only to the effect of a court order is a tiny mousehole.

¶143 The problem is reinforced (not averted) by the fact 

that the statutory reference to a change in a person‘s ―sex‖ 

designation is ―combined‖ with a reference to ―name change.‖ 

Supra ¶ 50. There is in fact a ―common law‖ understanding of 

―name change.‖ But there is no common law governing any 

change to the sex designation on a birth certificate. And the 

majority opinion in this case is not applying an established 

common-law standard (under the law of name changes or 

otherwise); it is formulating its own new standard out of whole 

cloth. For that reason the cited distinction cuts against the 

majority‘s approach. The legislative decision to ―combine‖ an 

established common-law term with a term that has an established 

meaning in statutory administration indicates an intent to 

attribute common-law meaning to the common-law term and 

statutory meaning to the statutory term.

¶144 The court‘s contrary conclusion is no small matter. On 

its face, the majority decision is limited to birth certificates. But a 

birth certificate is an indicator of a person‘s sex when presented to 

our schools65 and other institutions. And the majority decision 

will have far-reaching implications in these and other spaces. It 

seems destined, for example, to affect spaces traditionally 

reserved for biological girls and women—sex-segregated sports 

leagues,

66 school locker rooms,67 and shelters designed as safe 

__________________________________________________________

65 See UTAH CODE § 53G-6-603(1) (conditioning enrollment in 

public schools on presentation of ―a certified copy of the student‘s 

birth certificate, or other reliable proof of the student‘s identity 

and age, together with an affidavit explaining the inability to 

produce a copy of the birth certificate.‖)

66 This is a difficult issue that is sure to be affected by our 

decision. And clearly there are interests on the other side of the 

ledger. See Soule v. Conn. Ass’n of Sch.’s, No. 3:20-CV-00201-RNC 

(D. Conn. filed Feb. 12, 2020) (alleging that the practice of 

permitting biological males to compete in female athletic 

competitions violates Title IX); H.B. 1572, 111th Gen. Assemb., 

Reg. Sess. (Tenn. 2019) (proposing that publicly funded schools 

require that ―each athlete participating in . . . athletic or sporting 

event[s] participate[] with and compete[] against other athletes 

based on the athlete‘s biological sex as indicated on the athlete‘s 

(continued . . .)
Cite as: 2021 UT 13

ASSOCIATE CHIEF JUSTICE LEE, dissenting

69

spaces for victims of sex abuse.

68 In these and other spaces, the 

court‘s sweeping standard puts a heavy thumb on the scale of a 

 

original birth certificate issued at the time of birth‖); H.B. 500, 65th 

Leg., 2nd Reg. Sess. (Idaho 2020) (codified at IDAHO CODE ANN. 

§ 33-6203 (West 2020) (requiring public schools to designate 

athletic teams ―based on biological sex‖).

67 See A.H. ex rel. Handling v. Minersville Area Sch. Dist., 408 

F.Supp.3d 536, 544, 582 (M.D. Pa. 2019) (holding that the plaintiff, 

whose birth certificate was ―formally changed from male to 

female‖ was entitled ―to use the restroom corresponding to her 

gender identity on all school-field trips‖); M.A.B. v. Board of Educ.

of Talbot Cnty., 286 F.Supp.3d 704, 709–10 (D. Md. 2018) (alleging 

that a school‘s locker room policy, which requires students to use 

a locker room that is consistent with their biological sex, violates 

Title IX, the Equal Protection Clause, and the Maryland 

Declaration of Rights); Ann. E. Marimow, Battle Over Transgender 

Student Rights Moves to High School Locker Rooms, WASH. POST

(Apr. 26, 2018), https://www.washingtonpost.com/publicsafety/battle-over-transgender-student-rights-moves-to-highschool-locker-rooms/2018/04/25/b319365a-3f29-11e8-974faacd97698cef_story.html (discussing the significance of the battle 

over high school locker rooms).

68 See McGee v. Poverello House, 1:18-CV-00768-LJO-SAB, 2019 

WL 5596875, at *1–2, 9 (E.D. Cal. Oct. 30, 2019), ECF No. 46

(complaint filed by a group of homeless women against 

organizations that provided temporary shelters for those ―who 

have suffered . . . sexual abuse‖; asserting claims arising from a 

decision to allow a transgender person who was born a male but 

identified as a female ―to shower with‖ the sex-abuse-victim 

plaintiffs); Joseph Brean, Forced to Share a Room with Transgender 

Woman in Toronto Shelter, Sex Abuse Victim Files Human Rights 

Complaint, NAT‘L POST (Aug. 2, 2018), 

https://nationalpost.com/news/canada/kristi-hanna-humanrights-complaint-transgender-woman-toronto-shelter (discussing 

a human rights complaint by a sex-abuse victim against a Toronto 

shelter for ―admitt[ing] a male bodied transgender into the safety 

of [her] home, bedroom and safe spaces,‖ causing ―stress, anxiety, 

rape flashbacks, symptoms of post-traumatic stress disorder and 

sleep deprivation‖).
IN RE SEX CHANGE

ASSOCIATE CHIEF JUSTICE LEE, dissenting

70

range of sensitive matters of enormous significance to our 

society.69

¶145 The question of whether and how to balance these 

interests in the adoption of a new law in this field is a matter for 

the Utah legislature. That is a political body representing a wide 

range of ideologies and interests, with the manner and means of 

amending the laws on the books based on input from a diverse 

constituency and a wide range of views—through committee 

hearings, open debate, and a public vote.70 This court is in no such 

__________________________________________________________

69 The district court catalogued a series of these matters—

raising concerns about the effects of a birth certificate amendment 

based on a person‘s ―gender identity‖ on ―insurance rates,‖ 

―preferred contracting‖ (under affirmative action laws), athletic 

competitions, prisons, and more. Yet the majority brushes these 

concerns aside as ―suppositions‖ and ―guesswork,‖ or ―slipperyslope arguments with no factual basis.‖ Supra ¶¶ 116–17. It also 

criticizes me for identifying a range of parallel concerns, 

suggesting that I have somehow crossed a line as an advocate for 

―the interests of the State.‖ Supra ¶ 3.

This is unfair and unfounded. No adverse party has been 

given the opportunity to present any adverse position on the 

merits in this case. And with that in mind, Judge Hyde and I are 

both engaged in a similar endeavor—not in arguing for a 

preferred disposition or advocating for any particular view, but in 

identifying the third-party interests that are resolved by but have 

not been heard by the court. In my view it is not a vice but a 

virtue for a judge to highlight these concerns in the course of 

challenging the propriety of our exercise of jurisdiction.

The majority‘s approach on these matters is also riddled with

irony. On one hand, the court insists that the traditional adversary 

model is no jurisdictional barrier to its determination to reach the 

merits of the question presented. On the other hand, the court 

takes the opposite tack when it comes to its analysis of the 

questions presented on the merits—asserting that any contrary 

concerns are off the table, as unbriefed by any adversary party. 

The court can‘t have it both ways. Either adverseness is required 

or it isn‘t.

70 Our Utah legislature is certainly in a position to extend our 

law to capture ―gender identity‖ instead of ―sex‖ on an 

amendment to a birth certificate, or to take other measures aimed 

(continued . . .)
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

71

position71—least of all in a ―case‖ like this one, in which the court 

has heard from only one side of this difficult problem. 

¶146 We lack the judicial power to make this decision in a 

case in which there is only a petitioning party and no adversary. 

Our courts have long been limited to the adjudication of 

adversary proceedings—cases involving the establishment of a 

petitioning party‘s rights at the expense of an adversary. The 

court overrides that longstanding limit—and the decades of 

precedent that establish it—in holding that our courts now have 

the authority to resolve any ex parte request for a change to any 

matter of ―legal status or identification.‖ Supra ¶ 15. This new 

standard of jurisdiction is limitless. It obliterates the long-settled 

line between executive and judicial power.

 

at balancing the competing interests implicated by this case. But 

to date, it has not done so. In 2018 and 2019, the legislature 

considered proposed amendments to the birth certificate law. H.B. 

153, 2019 Leg., Gen. Sess. (Utah 2019); S.B. 138, 2018 Leg., Gen. 

Sess. (Utah 2018). And in the 2021 session, it considered a bill that 

would have regulated the eligibility of transgender persons to 

participate in sex-segregated sports in Utah. H.B. 302, 2021 Leg., 

Gen. Sess. (Utah 2021). None of these proposals was enacted into 

law or even came to a final floor vote. And none of these bills

proposed to allow a birth certificate amendment based on 

evidence of appropriate care or treatment for gender transitioning 

or change.

Our court is thus getting ahead of the people‘s representatives 

in the legislature. And it is doing so without the benefit of any 

open, public debate or opportunity for input from competing 

stakeholders. 

71 Increasingly our society is giving in to this impulse. Too 

often we are caving to the pressure to ―solv[e] political differences 

. . . through litigation rather than through legislation and 

elections.‖ See In re Trump, 958 F.3d 274, 293 (4th Cir. 2020) 

(Wilkinson, J., dissenting), vacated as moot by Trump v. D.C., 141 S. 

Ct. 1262 (2021). This is troubling. It is a ―profoundly antidemocratic development,‖ id.—a perilous shift of power from the 

people and their representatives to a body of unelected officials 

whose black robes have long given us the appearance of 

impartiality. That appearance is fragile. We should do all we can 

to retain it.
IN RE SEX CHANGE

ASSOCIATE CHIEF JUSTICE LEE, dissenting

72

¶147 Prudential considerations would call for an order for 

adversary briefing even if the constitutional limits on our power 

did not. When other courts have been faced with the prospect of 

resolving an important legal question with briefing from only one 

side, they consistently have appointed an amicus to represent and 

advance the views of the missing opposition. This seems crucial in 

a case like this one, in which there clearly are interests on both 

sides, and the court is resolving them as a matter of common-law 

policymaking. The decision to plow ahead without adversary 

briefing is unwise even if it is not an excess of our power.

¶148 The majority‘s decision may be perceived by some as 

a triumph of freedom and self-determination. It cannot be 

applauded, however, as a triumph for our Utah laws or 

constitution. The majority is effectively rewriting a statute enacted 

by the legislature in 1975. And it is doing so in a case in which we 

lack any adverse party or adversary briefing—under a novel 

formulation of our courts‘ jurisdiction that effectively overrides 

the long-settled limits on the judicial power.

¶149 I respectfully dissent from this decision. I explain my 

reasoning further in the paragraphs below. First, I develop the 

basis for the conclusion that we should not be resolving this 

matter in a proceeding in which there is no adverse party and no 

adversary briefing. Second, I demonstrate that the statute 

approving an order for a change to the designation of a person‘s 

―sex‖ on a birth certificate is speaking to biological sex and is not 

delegating to this court the power to establish an evolving 

standard of ―gender identity.‖ Finally, I close with some final 

observations about the nature of my objections to the 

extraordinary decision made by the court today.

I. JURISDICTION

¶150 ―The powers of the government‖ of the State of Utah 

are ―divided into three distinct departments‖—the legislative, 

executive, and judicial. UTAH CONST. art. V, § 1. Each branch is 

given distinct powers under the terms of the Utah Constitution. 

¶151 The ―[l]egislative power‖ is delegated to the Utah 

Legislature under article VI. Id. art. VI, § 1. Such power is the 

authority to enact legislation by ―bill or joint resolution . . . passed 

. . . with the assent of the majority of all the members elected to 

each house of the Legislature.‖ Id. art. VI, § 22. Subject to further 

terms and conditions set forth in article VI, the legislature has the 

power to ―promulgat[e] . . . laws of general applicability . . . based 

on the weighing of broad, competing policy considerations.‖ 
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

73

Carter v. Lehi City, 2012 UT 2, ¶ 34, 269 P.3d 141; see also Rampton v. 

Barlow, 464 P.2d 378, 381 (Utah 1970) (speaking of the legislative 

power as ―the authority to make laws‖).

¶152 The ―executive power‖ in Utah is delegated to five 

―elective constitutional officers‖: ―Governor, Lieutenant 

Governor, State Auditor, State Treasurer, and Attorney General.‖ 

UTAH CONST. art. VII, § 1. The Governor is given the specific 

―executive power‖ to ―see that the laws are faithfully executed,‖ 

id. art. VII, § 5, while the Attorney General is designated as ―the 

legal adviser of the State officers‖ and directed to ―perform such 

other duties as provided by law.‖ Id. art. VII, § 16. These executive 

powers involve decisions based on ―individualized, case-specific 

considerations as to whether the acts of a particular person fall 

within the general rule adopted by the legislature.‖ Carter, 2012 

UT 2, ¶ 47. Executive power thus ―encompasses prosecutorial or 

administrative acts aimed at applying the law to particular 

individuals or groups based on individual facts and 

circumstances.‖ Id. ¶ 34.

¶153 The ―judicial power‖ under our constitution is ―vested 

in a Supreme Court, in a trial court of general jurisdiction known 

as the district court, and in such other courts as the Legislature by 

statute may establish.‖ UTAH CONST. art. VIII, § 1. This power ―is 

generally understood to be the power to hear and determine 

controversies between adverse parties and questions in litigation.‖ 

Citizens’ Club v. Welling, 27 P.2d 23, 26 (Utah 1933). The judicial 

power is thus distinct from the legislative or executive power. We 

have long held that our courts ―have no power to decide abstract 

questions or to render declaratory judgments[] in the absence of 

an actual controversy directly involving rights‖ of adverse parties. 

Univ. of Utah v. Indus. Comm’n of Utah, 229 P. 1103, 1104 (1924). 

This is because the promulgation of such general, abstract rules is 

a legislative prerogative.72

¶154 Our courts are similarly foreclosed from exercising 

executive power. We do not apply the law to individual parties, as 

__________________________________________________________

72 See Baker v. Carlson, 2018 UT 59, ¶ 13, 437 P.3d 333 

(recognizing that the ―two key hallmarks of legislative power‖ are 

―the promulgation of laws of general applicability‖ and the 

―weighing of broad, competing policy considerations‖ (citations 

and internal quotation marks omitted)).
IN RE SEX CHANGE

ASSOCIATE CHIEF JUSTICE LEE, dissenting

74

by issuing or amending a government record, license, or permit.73

Those are inquisitorial functions, which our courts are illequipped to perform. The judicial power is the power to 

adjudicate rights in an adversary posture. Our courts establish the 

rights of petitioning parties upon the satisfaction of responding 

parties.

¶155 This is a fundamental tenet of the separation of 

powers under the Utah Constitution. It has deep roots in our 

Anglo-American legal tradition, tracing at least as far back as 

Blackstone‘s Commentaries. Blackstone put the point in terms of 

―three constituent parts‖ of a judicial proceeding: ―the actor, or 

plaintiff, who complains of an injury done; the reus, or defendant, 

who is called upon to make satisfaction for it; and the judex, or 

judicial power.‖74

¶156 This formulation became embedded in our American 

law from the beginning of the republic.75 It is also a deeply rooted 

__________________________________________________________

73 See Carter v. Lehi City, 2012 UT 2, ¶ 47, 269 P.3d 141 (―[T]he 

executive [power] encompasses not just prosecutorial decisions 

involving proposed sanctions, but parallel acts like permitting or 

licensing in circumstances where the law opts for that form of 

regulation.‖).

74 3 WILLIAM BLACKSTONE, COMMENTARIES *25; see also 1 

EDWARD COKE, THE FIRST PART OF THE INSTITUTES OF THE LAWES OF 

ENGLAND 39a (London 1628) (―[I]n every judgment there ought to 

be three persons, actor, reus, and judex.‖); Caleb Nelson, Sovereign 

Immunity as a Doctrine of Personal Jurisdiction, 115 HARV. L. REV.

1559, 1568 & n.29 (2002) (―For centuries, Anglo-American lawyers 

have thought that the very existence of most kinds of judicial 

proceedings depends upon the presence (actual or constructive) of 

adverse parties.‖); id. at 1568 n.29.

75 See The Hon. John Marshall, Speech Delivered in the House of 

Representatives, of the United States, on the Resolutions of the Hon. 

Edward Livingston (Mar. 7, 1800), in 4 THE PAPERS OF JOHN 

MARSHALL 82, 96 (Charles T. Cullen ed., 1984) (interpreting the 

judicial power over a ―Case[]‖ in Article III of the United States 

Constitutional to require ―parties to come to court, who can be 

reached by its process, and bound by its power; whose rights 

admit of ultimate decision by a tribunal to which they are bound 

to submit‖); United States v. Ferreira, 54 U.S. 40, 46 (1851) (stating 

that certain determinations of treaty claims were not cases 

(continued . . .)
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

75

in our Utah law on the separation of powers. For many decades 

this court repeatedly has held that the judicial power is marked by 

and limited to the disposition of controversies, or in other words 

the resolution of adverse interests.76 We have emphasized the 

 

because, among other reasons, the United States was not 

authorized to appear as a party to oppose the claim); Marye v. 

Parsons, 114 U.S. 325, 330 (1885) (―[N]o court sits to determine 

questions of law in thesi. There must be a litigation upon actual 

transactions between real parties, growing out of a controversy 

affecting legal or equitable rights as to person or property.‖); 

California v. San Pablo & T.R. Co., 149 U.S. 308, 314 (1893) (―The 

duty of this court, as of every judicial tribunal, is limited to 

determining rights of persons or of property which are actually 

controverted in the particular case before it.‖); United States v. 

Duell, 172 U.S. 576, 588 (1899) (concluding that the District of 

Columbia Court of Appeals could review a decision of the 

Commissioner of Patents; stating that ―the proceeding in the court 

[of appeals]‖ on an appeal in an interference controversy 

―presents all the features of a civil case—a plaintiff, a defendant 

and a judge‖); Muskrat v. United States, 219 U.S. 346, 361 (1911) 

(stating that the judicial power ―is the right to determine actual 

controversies arising between adverse litigants, duly instituted in 

courts of proper jurisdiction‖).

76 See Univ. of Utah v. Indus. Comm’n of Utah, 229 P. 1103, 1104 

(Utah 1924) (concluding that ―[e]ven courts of general jurisdiction 

have no power to decide abstract questions or to render 

declaratory judgments, in the absence of an actual controversy 

directly involving rights‖); Citizens’ Club v. Welling, 27 P.2d 23, 26

(Utah 1933) (establishing that the judiciary has the ―power to hear 

and determine controversies between adverse parties and questions 

in litigation‖ (emphasis added)); Salt Lake City v. Ohms, 881 P.2d 

844, 849 (Utah 1994) (recognizing that the ―judicial power of 

courts‖ is ―generally understood to be the power to hear and 

determine controversies between adverse parties‖); Judd v. Drezga, 

2004 UT 91, ¶ 37, 103 P.3d 135 (explaining that the ―judicial power 

is  ̳the power to hear and determine controversies between 

adverse parties and questions in litigation‘‖) (quoting Timpanogos 

Planning & Water Mgmt. Agency v. Cent. Utah Water Conservancy 

Dist., 690 P.2d 562, 569 (Utah 1984)); State v. Guard, 2015 UT 96, 

¶ 59, 371 P.3d 1 (clarifying that under our judicial power ―we 

(continued . . .)
IN RE SEX CHANGE

ASSOCIATE CHIEF JUSTICE LEE, dissenting

76

―duty‖ of this court ―to vigilantly follow the strictures‖ of the 

constitutional limits on our power. Utah Transit Auth. v. Local 382 

of Amalgamated Transit Union, 2012 UT 75, ¶ 26 289 P.3d 582.

¶157 These bedrock limitations on the judicial power have 

come under recent challenge. In an article in the Yale Law Journal, 

James E. Pfander and Daniel D. Birk identified examples of 

purportedly non-contentious matters heard historically by our 

courts, including cases involving bankruptcy petitions, 

receiverships, warrants, and petitions for pensions and 

citizenship. James E. Pfander & Daniel D. Birk, Article III Judicial 

Power, the Adverse-Party Requirement, and Non-contentious 

Jurisdiction, 124 YALE L.J. 1346 (2015). These authors cited these 

and other examples in support of the view that the judicial power 

is not limited to the resolution of ―adverse‖ disputes. Id. at 1346 

(asserting that the judicial power encompasses ―power over 

disputes between adverse parties‖ and ―power over ex parte and 

other uncontested proceedings‖). They thus challenged the 

viability of an established justiciability doctrine by contending 

that the federal courts may ―plausibly‖ be viewed to have been 

―given . . . the authority to exercise judicial judgment in the 

administration of federal law  ̳cases‘ on an ex parte or noncontentious basis‖ as assigned by Congress. Id. at 1425.

¶158 Two members of our court have echoed this challenge 

in recent cases. Noting that our courts have long been involved in 

some proceedings that have the ―potential to lack adverse 

parties,‖ two justices have suggested that our Utah Constitution 

may not limit our courts to the disposition of adverse 

controversies. In re Gestational Agreement, 2019 UT 40, ¶ 63, 449 

P.3d 69 (Pearce, J., joined by Himonas, J., concurring). Citing 

matters like ―adoptions, name changes, probate, and 

guardianship matters,‖ which may be uncontested, they have 

suggested that our longstanding requirement of adverseness may 

be a mistaken relic in our case law, not a constitutional command. 

See id. ¶¶ 63–71 (questioning ―whether the adversity that so often 

exists in judicial proceedings is constitutionally required‖). 

 

resolve concrete disputes presented by parties‖ (emphasis added)); 

State v. Robertson, 2017 UT 27, ¶ 40, 438 P.3d 491 (stating that the 

judicial power ―is limited to resolving specific disputes between 

parties as to the applicability of the law to their actions‖ (citation 

and internal quotation marks omitted)).
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

77

¶159 Today‘s majority finds ―much to commend‖ in this 

challenge to our longstanding precedent in this important field. 

Supra ¶ 20 n.13. And it proceeds to the conclusion that we have 

jurisdiction to resolve the ―case‖ before us despite the lack of 

adverseness—even while insisting that there is no need for us to 

―reach the issue‖ of whether to abandon our longstanding case 

law. Supra ¶ 20 n.13.

¶160 The court‘s holding, however, effectively erases the 

traditional, longstanding requirement of adverseness. In its place, 

the court introduces a new standard: Our courts may exercise 

jurisdiction over any petition aimed at changing a party‘s ―legal 

status or identification.‖ Supra ¶ 21. But this new standard has no 

bounds. It opens the door to judicial resolution of any of a range 

of matters falling within the power of the executive. 

¶161 This is troubling. It is also unsupported by the cited 

examples of purportedly non-adversary proceedings. The cited 

examples are adversarial in the above-noted sense—they involve 

the adjudication of a petitioning party‘s rights at the expense of a 

responding party. That is all that is required to justify the exercise 

of judicial power. Adverse argument is not required, just the 

disposition of adverse interests.

¶162 This is clear from the above-noted Blackstone 

formulation—in the requirement of an ―actor, or plaintiff, who 

complains of an injury done,‖ and a ―reus, or defendant, who is 

called upon to make satisfaction for it.‖ 3 WILLIAM BLACKSTONE, 

COMMENTARIES *25 (third emphasis added). Our courts have 

power to resolve this sort of controversy or clash of adverse 

interests. We exercise judicial power when we establish one 

party‘s interest at the expense of another party (who makes 

―satisfaction‖ of the pleading party‘s interest). 

¶163 This is not what our court is being asked to do here. 

Here we are being asked to alter or establish these plaintiffs‘ 

rights under the law in general. No adverse party‘s rights are 

extinguished or adjudicated in the course of the requested 

decision. And that renders this a non-judicial proceeding—a 

matter akin to a request for issuance of or amendment to a 

government document, license, or permit.

¶164 We should dismiss this case for lack of jurisdiction 

under this deeply rooted understanding of the judicial power. 

And even if we could somehow overcome this barrier as a matter 

of our jurisdiction, we should nonetheless order adversary 

briefing as a matter of discretion or prudence.
IN RE SEX CHANGE

ASSOCIATE CHIEF JUSTICE LEE, dissenting

78

¶165 I highlight the grounds for my conclusions below in 

(a) noting that the historical understanding of the judicial power 

requires a disposition of adverse interests (but not always adverse 

argument); (b) explaining that the cited examples of noncontentious proceedings fit this understanding of adverseness; (c) 

demonstrating that historical name-change proceedings do not 

establish a basis for the court‘s novel formulation of the judicial 

power—a formulation that effectively overrules decades of our 

precedent; and (d) emphasizing the prudential need for notice 

and adversary briefing even if it is not required for our exercise of 

jurisdiction. 

A. The Judicial Power and the Disposition of Adverse 

Interests

¶166 Not every judicial act involves a disposition after 

adverse argument by opposing parties. Our courts have long been 

involved in proceedings in which opposing interests are forfeited 

or waived. And the judicial resolution of these matters may be 

viewed to ―fall within the  ̳judicial power‘‖ despite the lack of 

adversary briefing. In re Gestational Agreement, 2019 UT 40, ¶ 13, 

449 P.3d 69.

¶167 This provides a credible basis for skepticism of the 

notion of a requirement of adverse argument. But it is no basis for 

repudiation of the adverseness requirement altogether. It just 

highlights the need for clarification of the nature of the 

requirement. 

¶168 The clarification is highlighted in a recent article 

responding to Pfander and Birk‘s Yale Law Journal piece. In the 

response article, Ann Woolhandler addresses the ―noncontentious‖ litigation examples identified by Pfander and Birk. 

She notes that the historical cases distinguish two aspects of 

adverseness: (a) ―a requirement of adverse legal interests that will 

be affected by a decree‖; and (b) ―a requirement of adverse 

advocacy interests or adverse legal arguments.‖

77 And she 

establishes that only the former is required as a matter of 

historical practice. 

¶169 A judicial case involves the disposition of adverse 

interests upon notice and an opportunity for those interests to be 

__________________________________________________________

77 Ann Woolhandler, Adverse Interests and Article III, 111 NW. U.

L. REV. 1025, 1032 (2017).
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

79

heard. But a court‘s jurisdiction does not disappear if adverse 

parties fail to or agree not to appear in opposition.78 The failure to 

appear does not make the case non-adversarial; it just makes it 

uncontested.79

B. Uncontested Proceedings as Adverse

¶170 Judges resolve uncontested adversary proceedings 

with regularity. Collection actions are a common example. Other 

examples include some of the historical cases cited as exceptions, 

like uncontested adoptions and probate proceedings. An 

uncontested adoption is an adversary proceeding in the sense that 

there is a petitioning party (the adoptive parents) whose rights are 

established at the expense of an adverse party (the birth parents, 

whose rights are terminated). A probate action is also adversary—

it is initiated by notice to the public of the pendency of an action 

in which any and all claimed interests in the res (the estate) are 

adjudicated.80

¶171 Such actions are thus adverse in the sense that a 

plaintiff‘s rights are established at the expense of a defendant. 

__________________________________________________________

78 See id. at 1032–35 (explaining that the exercise of judicial 

power requires ―adverse legal interests that will be affected by a 

decree;‖ notice to adverse parties; an opportunity for adverse 

argument; and a request for entry of a judgment (emphasis 

added)).

79 Id. at 1032–33 (―A prototypical case involves some issues as 

to which the parties have both adverse legal interests as well as 

adverse arguments. Adverse legal arguments, however, are 

clearly not sufficient for a case, nor are they always necessary. By 

contrast, adverse legal interests are necessary and often 

sufficient. . . . [A] case requires a clash of legal interests but does 

not always require a clash of argument.‖). 

80 Id. at 1034 (noting that ―in rem-type proceedings necessarily 

include the potential for a form of default, just as in personam 

actions do‖); id. at 1043 (explaining that ―non-contentious,‖ ―in 

rem-type proceedings‖ ―all responded to a need to resolve 

conflicting claims to property that were difficult to adjust by 

agreement, provided service comporting with procedural due 

process, and could affect claims to the property even if parties 

failed to appear‖ and that ―those with adverse interests frequently 

appeared to make adverse arguments‖).
IN RE SEX CHANGE

ASSOCIATE CHIEF JUSTICE LEE, dissenting

80

There is an ―actor, or plaintiff‖ and a ―reus, or defendant,‖ and the 

―judex, or judicial power‖ involves the establishment of the 

plaintiff‘s legal interests at the expense of or upon ―satisfaction‖ 

by the defendant. 3 WILLIAM BLACKSTONE, COMMENTARIES *25.

None of this requires adverse legal argument, however; the 

defendant‘s interests may be disposed of by waiver or default.

¶172 The Woolhandler article demonstrates that the 

historical examples in the Pfander and Birk piece are along these 

lines—and do not establish that adverseness is not an element of 

traditional judicial power.81 As to bankruptcy petitions and

receiverships, Woolhandler explains that these are forms of in rem

jurisdiction, in which the courts were resolving disputed interests 

in a given matter upon notice and opportunity for adverse 

argument.82 As to petitions for the determination of a right to a 

pension, the author cites the determination in Hayburn’s Case that 

an ex parte determination of a claim by a pensioner would not be 

an act in a ―judicial nature,‖83 and emphasizes that many of the 

historical cases were resolved by ―commissioners‖ rather than 

judges exercising judicial power under Article III.84 Finally, the 

author concedes that petitions for naturalization of citizenship are 

perhaps the ―best example‖ of non-contentious jurisdiction.85 But 

she emphasizes that judicial disposition of these petitions 

involved a recognition of a petitioning party‘s rights (citizenship) 

at the expense of an adversary (the sovereign)—an adversary 

__________________________________________________________

81 I am not ―overlook[ing] the arguments set forth in the cited 

articles. Supra ¶ 30. I have considered them carefully. I just find 

the Woolhandler account more complete and more persuasive—

and more in line with long-settled tenets of our jurisprudence.

82 Woolhandler, supra n.77 at 1036.

83 Id. at 1056; see also Hayburn’s Case, 2 U.S. 408, 410 (1792); 

HENRY M. HART, JR., & HERBERT WECHSLER, THE FEDERAL COURTS 

& THE FEDERAL SYSTEM 86 (7th ed. 2015) (stating that ―Hayburn‘s 

Case . . . seems to reject rather decisively Congress‘ effort to enlist 

federal courts to act as administrative agencies by applying law to 

fact outside the context of a concrete dispute between adverse 

parties.‖).

84 Woolhandler, supra n.77, at 1056.

85 Id.
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

81

construct requiring ―notice to‖ and ―potential appearance by‖ the 

United States government as the obvious ―adverse party.‖86

¶173 This basis for federal jurisdiction over naturalization 

proceedings is reflected in the territorial court‘s decision in In re 

Kanaka Nian, 21 P. 993 (Utah 1889)—a case cited by the majority in 

support of its assertion of jurisdiction. See supra ¶ 67. This was 

indeed a proceeding in the territorial court involving a petition for 

naturalization of citizenship. But it provides no support for the 

majority‘s assertion of jurisdiction over all changes to ―legal status 

or identification‖ despite a lack of adverse interests. The United 

States government was the adverse party in that case. This was an 

adversary proceeding in which the applicant‘s citizenship was 

established upon satisfaction of any contrary claim by the 

government. Counsel ―were heard for and against the admission 

of the applicant.‖ Id. at 993; see also id. at 994 (noting that the 

petition ―was opposed . . . on the ground that [the petitioner] did 

not appear to be possessed of sufficient intelligence to become a 

citizen‖).

¶174 This view of naturalization proceedings is likewise 

reflected in the Supreme Court‘s opinion in Tutun v. United States, 

270 U.S. 568 (1926). There the Court noted that ―[t]he United 

States is always a possible adverse party‖ in naturalization 

proceedings. Id. at 577. And that framing is consistent with the 

traditional understanding of adverseness—as a requirement of 

adverse interests, not adverse argument.87

__________________________________________________________

86 Id.

87 The majority responds by asserting that the ―distinction 

between adverse  ̳argument‘ and  ̳interests‘ swallows itself‖ 

because ―a court could always identify a  ̳possible‘ adverse party 

for any matter before it.‖ Supra ¶ 27. But this misses the point of 

the requirement of adverseness—and of the distinction between 

adverse interest and adverse parties. An adverse proceeding 

arises not upon ―mere speculation of possible adverse interests,‖ 

supra ¶ 27, but in a controversy in which the petitioning party‘s 

interests are established at the expense of the responding party‘s 

rights. When the government establishes a petitioning party‘s 

rights in the abstract—in a non-adversary proceeding, as in the 

issuance or amendment of a government record, license, or 

permit—it is exercising executive power. The judicial power is 

(continued . . .)
IN RE SEX CHANGE

ASSOCIATE CHIEF JUSTICE LEE, dissenting

82

¶175 This framework is also reinforced by our own 

precedent, most recently in In re Gestational Agreement. In that case 

we reinforced the longstanding general rule that our courts lack 

jurisdiction ―in  ̳the absence of any justiciable controversy 

between adverse parties.‘‖ 2019 UT 40, ¶ 12 (quoting Carlton v. 

Brown, 2014 UT 6, ¶ 29, 323 P.3d 571). But we upheld the 

jurisdiction of our courts to decide on the enforceability of an 

uncontested gestational agreement under the Utah Uniform

Parentage Act. In so doing, we analogized such a proceeding to an 

uncontested adoption—a proceeding long heard by our Utah 

courts. See id. ¶¶ 14–15 (noting that the territorial and early Utah 

courts adjudicated uncontested adoptions). And with that 

historical practice in mind, we held the adjudication of parental 

rights would fall within the scope of the judicial power as 

understood ―by the framers of our constitution‖ despite the lack 

of any contest or adverse argument by birth parents. Id. ¶ 13.

¶176 The Gestational Agreement majority did not use the 

express terminology of ―adverse interests‖ and ―adverse 

argument.‖ But the court‘s holding is clearly rooted in these 

settled principles. The court first noted that uncontested 

adoptions are non-adversarial in the sense that the birth parents 

have agreed in advance to waive their right to present adverse 

argument as to their interests in the child. See id. ¶ 14–15 (noting 

that biological parents were required to give advance consent to 

the termination of their rights in founding-era uncontested 

adoption proceedings). Next, it indicated that an adoption order 

nonetheless involves a disposition of adverse interests—in an 

order establishing the adoptive parents‘ rights at the expense of 

(or upon termination of) the biological parents‘ rights.

¶177 The Gestational Agreement court thus held that the 

original understanding of the judicial power encompasses the 

authority to hear uncontested cases involving ―the termination 

 

different. It involves the establishment of a petitioning party‘s 

rights at the expense of an adverse party.

This is not ―the dissent‘s distinction.‖ Supra ¶ 27. And it is not 

a principle emanating from a recent ―law review article.‖ Supra

¶ 26. It is the core premise of the judicial power established by 

centuries of jurisprudence. And that premise is overridden by the 

majority today.
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

83

and creation of parental rights.‖ Id. ¶ 16 (emphasis added). It 

characterized such cases as ―non-adversarial.‖ Id. But the 

proceedings in question were ―non-adversarial‖ only in the sense 

that they were uncontested—or in other words lacked adverse 

argument. And the Gestational Agreement opinion framed the 

category of ―non-adversarial‖ proceedings that it found to fall 

within the original understanding of the judicial power in terms 

that made clear that adverse interests were implicated. See id. 

(holding that ―the judicial power includes the power to hear nonadversarial proceedings when these proceedings involve parental 

rights‖ (emphasis added)).

¶178 The Gestational Agreement opinion cannot be viewed to 

have abandoned the requirement of adverseness more generally. 

It does not stand for the proposition that our courts have the 

power to ―adjudicate‖ any category of case over which we have 

been ―granted . . . substantive power‖ by the legislature, 

―regardless of adversariness.‖ Supra ¶ 25. The Gestational 

Agreement majority does the opposite. It reinforces that 

adverseness is the general rule. And it recognizes only a limited 

exception to that rule—as to a category of cases in which there are 

adverse interests but no adverse argument.

¶179 The majority today is erasing the careful lines drawn 

in Gestational Agreement and overriding the longstanding 

requirement of adverseness. In so doing it is vindicating the 

position staked out by Justice Pearce in his concurrence in 

Gestational Agreement—an opinion that suggested that our court 

has never ―squarely confronted‖ whether ―the judicial power 

constitutionally vested in our courts contains a general 

requirement of  ̳adversariness‘‖ and encouraged ―exploration‖ of 

the issue ―in further cases.‖ Id. ¶¶ 56–57 (Pearce, J., concurring); 

see also id. ¶¶ 63, 68–70 (suggesting that there is historical evidence 

that both Utah and federal courts historically ―presided over 

nonadversarial proceedings‖ and that this court could benefit 

from ―additional briefing and analysis‖). The majority claims to 

be stopping short of endorsing this position. See supra ¶ 20 n.13

(finding ―much to commend‖ in Justice Pearce‘s concurring 

opinion but insisting that the court is not ―conclusively deciding‖ 

whether to adopt it). But the court‘s expressed standard is 

incompatible with the Gestational Agreement majority. It effectively 

holds that adverseness is no longer required in its assertion that 

we can exercise judicial power over any case over which we have 

been ―granted . . . substantive power‖ by the legislature. Supra

¶ 25.
IN RE SEX CHANGE

ASSOCIATE CHIEF JUSTICE LEE, dissenting

84

¶180 This is not our law. A ―justiciable controversy‖ does 

not always produce adversary briefing. Yet it does require the 

disposition of adverse interests—upon notice to and an 

opportunity for briefing from known adverse parties. An 

adversary party may forfeit its interest (by default) or waive it in 

advance (by consent—as with an uncontested adoption or 

gestational agreement). A court lacks the power to establish a 

petitioning party‘s rights, however, if it is not doing so at the 

expense of or upon satisfaction by a responding party.88

C. Name Change Proceedings and the Court‘s Rejection of 

the Requirement of Adverseness in favor of a New General Rule

¶181 The history of name-change proceedings is no basis 

for a decision to abandon the longstanding requirement of 

adverseness. Some name-change actions amount to adverse in rem

proceedings akin to probate matters—actions in which the 

petitioning party‘s rights are established at the expense of any 

adverse interests after public notice of this prospect. A prime 

example would be a name change action that could effect identity 

fraud or debt avoidance.89 This sort of name-change action would 

__________________________________________________________

88 I agree with the majority that ― ̳[t]he Utah Constitution 

enshrines principles, not applications of those principles.‘‖ Supra

¶ 34 (quoting South Salt Lake City v. Maese, 2019 UT 58, ¶ 70 n.23, 

450 P.3d 1092). But our constitutional principles are derived in the 

first instance from the original understanding of the text of the 

constitution. And the original understanding of the judicial power 

has long been viewed to encompass the requirement of 

adverseness. We should not abandon that principle at the first 

sight of an ―analogy‖ that might seem to run counter to it. But see 

supra ¶ 34 (concluding that the analogy of name-change 

proceedings overrides the requirement of adverseness and 

establishes the principle that courts have power to adjudicate nonadversarial ―status‖ determinations). 

89 See, e.g., Brown v. Name Change, 611 So. 2d 1355, 1355–56 (Fla. 

Dist. Ct. App. 1993) (remanding to the district court for an 

evidentiary hearing in which the prison‘s interests could be 

considered in a name change case filed by an inmate ex parte and 

ruled on by the district court without any input from the prison); 

In re Change of Name of DeWeese, 772 N.E.2d 692, 694 (Ohio Ct. 

App. 2002) (explaining that one reason for requiring notice in a 

name change proceeding is to prevent fraud).
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

85

be an adverse proceeding in which the court would give notice to 

any adverse parties.90

¶182 Other name-change proceedings are less 

consequential, and less obviously adverse. In a run-of-the-mill 

name-change action, the petitioner is simply changing a surname 

to reflect an adoption or marriage, or changing a first or middle 

name in a manner that has no potential to resolve the interests of 

any third parties. Such an action would not be viewed as adverse 

in the sense of the petitioning party‘s rights being established at 

the expense of a defendant‘s. And in that sense, name-change 

actions may seem to stand as a historical exception to the general 

rule of adverseness.

¶183 But that still leaves the question of the inference to 

draw from this historical exception. The identification of an 

exception need not disprove the general rule—much less require 

that we displace it with a new rule. Sometimes an exception is just 

an exception—a narrow carve-out from the scope of a general 

rule, or in other words a ground for refining the general rule.

¶184 That is the proper course to take where the general 

rule is so deeply rooted and so consistently stated. The 

requirement of adverseness is a longstanding limit on the judicial 

power. It is a fundamental protection against excesses of the 

judiciary, rooted in the foundations of Anglo-American 

government and restated by this court from the time of its 

founding. We should not abandon it at the first sight of an 

apparent aberration.

¶185 The majority does essentially that. Instead of just 

endorsing a name-change exception to the general requirement of 

adverseness, the majority establishes a new general rule—the rule 

that our courts can adjudicate any case over which we have been 

―granted . . . substantive power‖ by the legislature, supra ¶ 25, at 

__________________________________________________________

90 See UTAH CODE § 42-1-2 (providing for ―notice . . . of the 

hearing‖ on a name change petition as ordered by the court);

UTAH REV. STAT. § 1546 (1898) (―[T]he district court may order the 

change of name as requested, upon proof in open court . . . that 

thirty days‘ previous notice of the hearing thereof has been given 

in a newspaper published or having a general circulation in the 

county.‖).
IN RE SEX CHANGE

ASSOCIATE CHIEF JUSTICE LEE, dissenting

86

least where the decision amounts to a ―change[]‖ in a person‘s 

―legal status or identification,‖ supra ¶ 23. 

¶186 The new rule stands in stark contrast to our existing 

rule. Our existing rule was articulated by William Blackstone, 

reiterated by John Marshall, and cemented by centuries of AngloAmerican precedent and decades of Utah precedent. See supra

¶¶ 154–55, 155 n.74, 156 n.75. The new rule has no such pedigree. 

The court cites no case or any other legal material that holds or 

even suggests that our courts have the judicial power to 

adjudicate changes of ―legal status or identification.‖ It just asserts 

that this rule is somehow implicated by the history of namechange actions in our courts.

¶187 The majority claims not to be ―conclusively deciding‖ 

whether to repudiate the longstanding requirement of 

adverseness. Supra ¶ 20 n.13. But the court‘s decision effectively—

and quite clearly—overrides it. The new rule swallows the old

one.

¶188 After the decision today, it can no longer be said that a 

non-adversarial ―administrative act[] aimed at applying the law to 

particular individuals or groups‖ is solely an executive function, 

Carter, 2012 UT 2, ¶ 34, or that our courts ―have no power to 

decide abstract questions or to render declaratory judgments[] in 

the absence of an actual controversy directly involving rights‖ of 

adverse parties. Univ. of Utah, 229 P. at 1104. Instead, the new rule 

is that our courts can make non-adversarial administrative 

decisions so long as they affect ―legal status or identification.‖ The 

new rule has no limiting principle. It effectively overrides decades 

of Utah precedent and centuries of settled practice in our AngloAmerican system of justice.

¶189 Any administrative act by the executive branch can be 

viewed as affecting ―legal status.‖ The disposition of a party‘s 

legal rights is the establishment of ―legal status.‖ The new rule 

would thus logically encompass any of a range of the most 

classically executive functions—including decisions on whether 

and how to prosecute a suspect and whether or how to issue or 

amend any government record, license, or permit.91

__________________________________________________________

91 I am not ―collapsing‖ or equating ―legal status or 

identification‖ with ―issu[ing] or amend[ing] any government 

record, license, or permit,‖ as the majority suggests. Supra ¶ 70 

(continued . . .)
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

87

¶190 Under today‘s decision, our courts are thus no longer 

restricted to the exercise of traditional judicial power. We share 

the core power of the executive branch. We can make 

administrative decisions heretofore restricted to the executive. 

And we can do so in the absence of any disposition of or 

opportunity for input from any adverse interests.

¶191 I dissent from this sweeping decision. The history of 

name-change proceedings does not provide a basis for jurisdiction 

over all ex parte ―status or identification‖ proceedings. At most it 

establishes a basis for a narrow exception to our settled general 

rule.

¶192 For these reasons I would hold that the legislature 

lacks the power to delegate to the courts the power to resolve the 

kind of petition at issue in this case. The petitions before us ask 

that we establish the petitioning parties‘ ―legal status‖ under the 

law without adjudicating any responding party‘s competing 

 

(alteration in original). I am simply noting that licensing and 

permitting are settled examples of core executive power—

government acts establishing a petitioning party‘s ―legal status‖ 

in the abstract instead of at the expense of a responding party‘s 

rights. And it is the majority that has failed to explain how its new 

―legal status or identification‖ standard can be reconciled with the 

settled limits on our judicial power, or interpreted in a manner 

that preserves any distinct function for the executive.

The court insists that ―areas of the law traditionally regulated 

by the executive‘s permitting and licensing function are 

distinguishable from matters involving legal status or 

identification.‖ Supra ¶ 70. But it never identifies any plausible 

basis for distinction. The closest it comes to an attempt at a 

distinction is the assertion that executive ―licensing and 

permitting‖ are based primarily on ―public safety purposes,‖ 

while judicial ―legal status‖ determinations are not. Supra ¶ 70 

n.29. The proposed distinction fails, however, at both ends of the 

divide. The executive power has never been deemed to be limited 

to the pursuit of ―public safety purposes.‖ And the judicial power 

clearly spans more than just ―legal status or identification.‖

The court‘s new lines are problematic. They bear no relation to 

the established terms and conditions of the executive and judicial 

power.
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

88

interests. We thus lack the jurisdiction to entertain this petition 

under well-settled law. And we have the duty to assess our 

jurisdiction sua sponte, regardless of the lack of any briefing that 

challenges it. See UTAH R. CIV. P. 12(h)(2); In re Adoption of B.B., 

2017 UT 59, ¶¶ 121, 127, 417 P.3d 1 (Lee, A.C.J., dissenting).

¶193 It is thus no answer to note that ―no party‖ has 

challenged our jurisdiction or questioned the constitutionality of 

Utah Code section 26-2-11 as applied to this case. See supra ¶ 68

(stating that ―no party‖ has argued that we lack jurisdiction or 

sought to challenge the presumption of constitutionality). That is 

hardly surprising given that the only parties to this case are those 

that are asking us to invoke our jurisdiction in their favor. Our 

statutes are admittedly entitled to a presumption of 

constitutionality. See South Salt Lake City v. Maese, 2019 UT 58, ¶ 96

& n.37, 450 P.3d 1092 (Lee, A.C.J., concurring) (citing case law 

establishing this presumption). But the presumption is rebuttable. 

And it has been rebutted here as applied to a petition that runs 

afoul of the settled rule that our jurisdiction is limited to the 

disposition of adversary proceedings.92

D. We Should Call for Notice and Adverse Briefing Even if 

Not Required to Do So

¶194 Even if adverseness were not a required component of 

our jurisdiction under the Utah Constitution, that would leave the 

question whether we should nonetheless order adversary briefing 

for prudential reasons. And I see little room for doubt on that 

question.

¶195 In resolving this case, the court is establishing a new 

standard of gender identity to be reflected as the designation of a 

person‘s sex on Utah birth certificates. In adopting this new 

standard, the court is crediting the interests and arguments of the 

__________________________________________________________

92 The majority is missing this point in suggesting that I must 

―know[] that [my] propositions, properly framed, would not 

withstand [the] presumption of constitutionality.‖ Supra ¶ 69 n.28. 

There is no presumption that the legislature can delegate to our 

courts the power that has long belonged to the executive branch. 

We have an independent obligation to make sure that we are not 

exceeding the bounds of our jurisdiction. And any presumption of 

constitutionality that attaches to the statute has been rebutted in 

my view.
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

89

petitioners at the explicit expense of a host of contrary concerns. 

See supra ¶ 103 n.44 (repudiating my recognition of the existence 

of interests and viewpoints belonging to groups unrepresented in 

the non-adversarial briefing before the court). And the court‘s 

new standard will control all future proceedings in our Utah 

courts and will bind the executive branch of our government (the 

Utah Office of Vital Records) going forward.93

¶196 Perhaps the majority‘s new standard is a good one on 

a policy level. It is certainly protective of one set of interests at 

stake—that of transgender persons who wish to have their 

government documents match their gender identity.94 But there 

are other interests on the table, like the interests of biological

women in competing only with other biological women in sports 

(for scholarships, records, and awards), and the privacy and 

safety interests of those who enter high school locker rooms or 

safe-space shelters for abuse victims. The court is balancing away 

these and other contrary concerns without any notice to or voice 

from any party in a position to assert these adverse interests.95

__________________________________________________________

93 See UTAH CODE § 26-2-11 (requiring the state registrar to 

make an amendment to ―the otherwise unaltered original 

certificate‖ upon receiving a court order along with an application 

and payment of a fee.)

94 No one can seriously dispute the important role that birth 

certificates play in our society. A birth certificate ―records the 

birth of a child for vital statistics, tax, military, and census 

purposes.‖ A.B.A., Birth Certificates (Nov. 20, 2018), 

https://www.americanbar.org/groups/public_education/public

ations/teaching-legal-docs/birth-certificates/. It ―serve[s] as 

proof of an individual‘s age, citizenship status, and identity,‖ as a 

basis for a person ―to obtain a social security number, apply for a 

passport, enroll in schools, get a driver‘s license, gain 

employment, or apply for other benefits.‖ Id. And the court‘s new 

standard will have indisputable effects in these and other 

applications. I cannot understand why we would choose to plow 

forward with the sweeping change adopted today without 

hearing from parties in a position to highlight concerns associated 

with a new standard of gender identity for birth certificates under 

our law.

95 At an earlier stage of the proceedings we issued an order 

inviting amicus briefing on the question of our ―jurisdiction‖ to 

(continued . . .)
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

90

¶197 None of the majority‘s historical precedents provides 

support for the court‘s decision to resolve this matter in the 

absence of any adversary briefing. In none of the majority‘s cited 

examples is a court balancing away adverse interests in a 

conclusive resolution of a disputed legal question. There is no 

precedent for this kind of ex parte resolution of a state ―adoption[], 

name change[], probate, [or] guardianship matter[],‖ In re 

Gestational Agreement, 2019 UT 40, ¶ 63, (Pearce, J. concurring), or 

of any federal proceeding involving a bankruptcy, receivership, 

pension or citizenship determination. In the mine run of those 

cases, the law is settled, no contrary interests are being foreclosed, 

and the court is not establishing a new legal standard. This case is 

different. And the majority has cited no salient support for its 

decision to exercise jurisdiction in a case like this one.

¶198 On a matter of this significance and magnitude, we 

should invite adversary briefing even if we are not required to do 

so. And if no adversary should appear, we should appoint an 

amicus to represent the adverse interests that are unrepresented 

in the briefing before us.

¶199 This is a path that many other courts have followed. 

The United States Supreme Court has invited an amicus to 

represent adverse interests dozens of times. See Katherine Shaw, 

Friends of the Court: Evaluating the Supreme Court's Amicus 

Invitations, 101 CORNELL L. REV. 1533, 1594 (2016). Often it does so 

in circumstances like those presented here, where there has been a 

―lack of genuine adversary proceedings at any stage in [the]

litigation,‖ and where the outcome ―could have far-reaching 

consequences.‖ Granville-Smith v. Granville-Smith, 349 U.S. 1, 4

(1955).

 

resolve this matter. But no court ever gave any notice of the right 

of any party to assert any interests on the merits of the question 

presented for our decision. And we have no briefing of that 

nature. Our court is making new policy in this sensitive field 

without any input from anyone who may be in a position to raise 

concerns about the establishment of a new standard of ―gender 

identity‖ for Utah birth certificates. This is surely unwise as a 

matter of prudential policy, even if it is not foreclosed as a matter 

of our jurisdiction.
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

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¶200 Without adversary briefing, we are ill-equipped to 

establish a new concept of gender identity to be reflected on birth 

certificates in Utah. As judges on a court of law, we are in no 

position to analyze and weigh for ourselves the competing 

interests implicated by a decision of this magnitude. We do not 

represent a constituency of voters and we have no mechanism for 

asking legislative committees to elicit input from the broad range 

of public views on the matter. In the exercise of our appellate 

authority, we are entirely reliant on the adversary system. And it 

makes no sense for us to tread boldly into the territory of 

common-law decisionmaking in the absence of any adversary 

input—even if we had the power to do so in a case in which there 

is no adverse party.

¶201 This prudential course admittedly would introduce 

some additional ―delay‖ in an already long-pending matter. See 

supra ¶ 43 n.21 (raising this concern). But process matters. We 

could and should have dismissed this case on jurisdictional 

grounds very early on. That decision would have put the question 

presented back in the legislature‘s lap, where it belongs. And in 

all events, there is no basis for our court to be making new law on 

a matter of this magnitude in a non-adversarial proceeding.

II. MERITS

¶202 The majority‘s decision is troubling even if we assume 

away the jurisdictional and prudential limits on our judicial 

power. Our power is limited in a second, important way. We are 

bound by the text of the law enacted by the legislature.

¶203 The governing text was enacted in 1975, when the 

legislature amended our longstanding Utah Vital Statistics Act. At 

that time, the legislature added a provision requiring the registrar 

of the Office of Vital Records to issue an amended birth certificate 

―[w]henever a person born in this state has their name and/or sex 

change approved by an order of a court‖ upon presentation of a 

completed application and payment of a fee. 1975 Utah Laws 222. 

This provision has been recodified (in essentially identical terms) 

in Utah Code section 26-2-11.

¶204 The question presented goes to the meaning of the 

statutory reference to a person‘s ―sex‖ in this context. Everyone 

agrees that this term refers to a person‘s biological sex when the 

birth certificate is initially created. See supra ¶¶ 4 n.5; 90, 104. Here 

we are asked to decide whether the term ―sex‖ takes on a different 

meaning in the context of a ―change‖ to the same document.
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

92

¶205 That question has a straightforward answer on the 

face of the statutory text. A statute that speaks only to the effect of 

an order for a change to a birth certificate sex designation cannot 

be read to be delegating common-law power to develop an 

evolved concept of ―gender identity.‖96 The reference to ―sex‖ in 

this statute is a reference to biological sex. That is the obvious 

sense of ―sex‖ that is in play in the initial sex designation on a 

birth certificate. And that same concept must be understood to be 

carried forward in a statute that states no separate standard for an 

order amending that same document.97 This follows both from the 

canon of consistent meaning and the presumption that a 

legislature does not ―alter the fundamental details of a regulatory 

scheme in vague terms or ancillary provisions—it does not . . . 

hide elephants in mouseholes.‖ Whitman v. Am. Trucking Ass’ns, 

531 U.S. 457, 468 (2001).

¶206 The statute thus leaves no room for the majority‘s 

evolved standard of a sex-designation based on the receipt of 

__________________________________________________________

96 This is in fact the concept of ―sex‖ established by the 

majority as the law of this state. The court can insist that it is only 

deeming the ―sex‖ designation as a ―datum of legal status‖ and 

not ―argu[ing] that  ̳sex‘ means  ̳gender identity.‘‖ Supra ¶ 106 

n.48. But the reality remains: The ―datum of legal status‖ adopted 

by the court is one that equates a birth certificate sex designation 

with a person‘s gender identity under an evolved standard 

established by the court.

97 Like the Chief Justice, I interpret the governing statute as 

envisioning a ―routine procedural‖ filing ―by which a birth 

certificate amendment may be effected.‖ Supra ¶ 123. And I view 

the statute as speaking to ―the kinds of birth certificate 

amendments subject to the statute.‖ Supra ¶ 123. Yet I see those 

premises as pointing in a different direction than that outlined by 

the Chief Justice. 

The statute may not prescribe a ―substantive standard‖ for the 

issuance of an order for an amendment to a birth certificate. Supra

¶ 123. But it does speak to the ―kind[]‖ of designation that is 

subject to amendment by court order. Supra ¶ 123. The operative 

concept or type of designation at issue is a biological sex 

designation—not a novel determination of gender identity. And 

in my view, that same kind of designation should be the one at 

play in any request for a court order to amend this vital record.
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93

treatment for gender transitioning or change. Nor does it yield 

any indication of an intent to delegate common-law policymaking 

power to the courts. I develop both points in greater detail below.

A. Plain Meaning

¶207 We have long expressed a commitment to the ―plain‖ 

or ―ordinary‖ meaning of statutory language. See, e.g., Olsen v. 

Eagle Mountain City, 2011 UT 10, ¶ 9, 248 P.3d 465. This 

commitment is based on a host of good reasons, all rooted in our 

understanding of the rule of law. Only the plain language of the 

statute ―survived the constitutional process of bicameralism and 

presentment.‖ Graves v. N. E. Servs., Inc., 2015 UT 28, ¶ 67, 345 

P.3d 619. And it is thus our responsibility to give voice to ―the 

policy judgment‖ reached by the political branches of our 

government—not to ―impos[e] our own will through the exercise 

of our limited judicial power.‖ Id. ¶ 70.

¶208 We can credit the plain or ordinary meaning of the 

language of our law only if we understand some nuances of our 

human language. And those nuances cut clearly in favor of a 

biological concept of ―sex‖ as that term is used in Utah Code 

section 26-2-11.

¶209 A starting point is the acknowledgement that the 

building blocks of human language are subject to ambiguity—a 

word can be understood to have one meaning in one setting and a 

different one in another. Another is the idea that our language is 

subject to evolution over time—words can take on new meanings 

through the process of ―linguistic drift.‖ These elements 

contribute to the ambiguity in the language of the law. But they 

by no means rob our language of all determinate meaning. And 

they do not open the door to any and all judicial ―interpretations‖ 

of legal language. 

¶210 Much of the law‘s ambiguity is ―eliminated by 

context.‖ Olsen, 2011 UT 10, ¶ 13 (quoting Deal v. U.S., 508 U.S. 

129, 131–32 (1993)). Legal and linguistic context can even remove 

ambiguities arising from evolution in the meaning of a word over 

time. Think of the word ―sick‖—a term that traditionally was 

understood to refer to ill health, but more recently has morphed to 

include the idea of an impressive or risky move by an athlete. See 

State v. Rasabout, 2015 UT 72, ¶ 59, 356 P.3d 1258 (Lee, A.C.J., 

concurring) (noting this evolution in the use of this word). 

Historical uses of ―sick‖ would not readily be viewed in the latter 

sense; and a law that spoke to ―sick leave‖ for employees surely 

would be understood as addressed only to the former sense.
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

94

¶211 These observations dictate a clear answer to the 

interpretive question presented in this case. The term ―sex‖ may 

arguably be in the process of linguistic drift. Increasingly, some 

people speak of ―sex‖ as a term referring not only to biology but 

also to gender identity. Others insist on a contrary view, holding 

fast to the idea that sex is and can only be a matter of biology.

98

¶212 The clash of these two conceptions has triggered a bit 

of a culture war. As with so many points of conflict in our society 

today, the tension is heated. Each side advances its view with 

fervor and occasional furor—with the charge that the latter view 

ignores or overrides established science, or the criticism that the 

former position fails to afford dignity or inclusion to those whose 

identity is incompatible with their biological sex.

¶213 Fortunately, we are not called upon to mediate this (or 

any other) dimension of a culture war. We are asked only to 

decide the question whether the term ―sex‖ as used in a 1975 

statute governing the terms of a birth certificate can be 

understood as a reference to the concept of ―gender identity‖ that 

has evolved in recent years. The answer to that question is clear. It 

cannot. And any ambiguity is resolved on the basis of both the 

timing and the context of the 1975 statute.99

¶214 The statute in question was enacted in 1975. At that 

time, a reference to a person‘s ―sex‖ unambiguously was 

__________________________________________________________

98 See GLAAD MEDIA REFERENCE GUIDE – TRANSGENDER, 

https://www.glaad.org/reference/transgender (last visited April 

22, 2021) (defining sex as a classification based on biological 

characteristics and gender identity as a ―person's internal, deeply 

held sense of their gender‖).

99 My analysis is focused on the meaning of a ―change‖ to the 

designation of a person‘s ―sex‖ on a birth certificate. This is the 

relevant legal and linguistic context of the statutory language—

and the context that must be taken into account in discerning the 

ordinary meaning of the terms of the statute. The statute, after all, 

cannot possibly be read to require a court order as a legal 

precondition to a person‘s right to undergo this kind of ―sex 

change.‖ In contemplating an order for a ―sex change,‖ the statute 

is clearly speaking of a ―change‖ in the designation of a person‘s 

―sex‖ on a birth certificate. And my analysis is thus focused on the 

meaning of that kind of ―sex change‖ in this legal context.
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

95

understood as a reference to biological sex. This is confirmed by a 

wide range of dictionaries in place in 1975—and even extending 

to the fifteen-year period after that date of enactment. All of the 

dictionaries we have consulted from that time period define ―sex‖ 

as a biological concept.100 None of them defines ―sex‖ as a fluid 

__________________________________________________________

100 Sex, RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 

SECOND EDITION (1987) (―1. either the male or female division of a 

species, esp. as differentiated with reference to the reproductive 

functions 2. the sum of the structural and functional differences 

by which the male and female are distinguished, or the 

phenomena or behavior dependent on these differences.‖); Sex, 

WEBSTER‘S II NEW RIVERSIDE UNIVERSITY DICTIONARY (1984) (reprt.

1988) (1984) ( ̳1. a. The property or quality by which many living 

things are classified according to their reproductive functions. b. 

One of the two divisions, either male or female, of this 

classification. 2. Males or females as a group 3. a. The condition or 

character of being male or female b. The physiological, functional, 

and psychological differences that distinguish the male and the 

female. . . . 6. The genitalia‖); Sex, THE AMERICAN HERITAGE 

DICTIONARY OF THE ENGLISH LANGUAGE (reprt. 1981) (1969) (―1.a. 

The property or quality by which organisms are classified 

according to their reproductive functions. b. Either of two 

divisions, designated male and female, of this classification. 2. 

Males or females collectively. 3. The condition or character of 

being male or female; the physiological, functional, and 

psychological differences that distinguish the male and the 

female.‖); Sex, WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY

(reprt. 2002) (1961) (―1 : one of the two divisions of organic esp. 

human beings respectively designated male or female . . . 2 : the 

sum of the morphological, physiological, and behavioral 

peculiarities of living beings that subserves biparental 

reproduction with its concomitant genetic segregation and 

recombination which underlie most evolutionary change, that in 

its typical dichotomous occurrence is usu. genetically controlled 

and associated with special sex chromosomes, and that is typically 

manifested as maleness and femaleness. . . .‖).

Some of the above definitions do refer to ― ̳psychological,‘ 

 ̳behavior[al],‘ or  ̳character‘ differences‖ as possible indicators of 

―sex‖ in some species. Supra ¶ 86. But it does not follow that a 

―sex‖ designation on a birth certificate would be made by reference 

to these sorts of differences. And it surely does not follow that this 

(continued . . .)
IN RE SEX CHANGE

ASSOCIATE CHIEF JUSTICE LEE, dissenting

96

construct tied to an individual person‘s identity. Only one of these 

dictionaries, in fact, refers to the more evolved concept of identity 

at all, and it does so in a definition of ―gender identity.‖101

¶215 The culture-war concern about the biological concept 

of ―sex‖ has thus arisen only in recent years. So any linguistic drift 

of this term had not developed at any time in which our 

legislature enacted law in this field. Neither the majority nor the 

petitioners have cited any authority to the contrary. And in fact at 

least one of the cases relied on extensively by the majority 

confirms my contrary conclusion. See Bostock v. Clayton Cnty., 140 

S. Ct. 1731, 1739 (2020) (proceeding on the assumption that ―the 

term  ̳sex‘ in 1964 referred to  ̳status as either male or female [as] 

determined by reproductive biology‖ (alteration in original)); id.

at 1746–47 (openly stating that the court ―agree[d]‖ that a person‘s 

―transgender status‖ is a ―distinct concept[] from sex‖).

¶216 The biological meaning of the term ―sex‖ here is 

reinforced by the legal and linguistic context of its use in this 

statute. The reference to the designation of a person‘s sex on a birth 

certificate can only be understood as a reference to biological sex. 

This is clear, first, as a matter of simple logic—a baby has no 

capacity for expression of gender identity, so only biological sex 

can be reflected on a birth certificate. But it is also clear as matter 

of the established use of this term in this legal setting. In the birth 

certificate setting, ―sex‖ is an unambiguous reference to biological 

sex, not gender identity.102

 

use of the term ―sex‖ historically was understood to refer to 

gender identity—or receipt of treatment for gender transitioning 

or change.

101 Gender Identity, RANDOM HOUSE DICTIONARY OF THE ENGLISH 

LANGUAGE (2d ed. 1987) (―[A] person‘s inner sense of being male 

or female, usually developed during early childhood as a result of 

parental rearing practices and societal influences and 

strengthened during puberty by hormonal changes‖).

102 See In re Ladrach, 513 N.E.2d 828, 832 (Stark Cnty. Ohio 

Prob. Ct. 1987) (noting that ―[i]t is generally accepted that a 

person‘s sex is determined at birth by an anatomical examination 

by the birth attendant,‖ resulting in ―a declaration on the birth 

certificate of either  ̳boy‘ or  ̳girl‘ or  ̳male‘ or  ̳female‘‖); Alice 

Domurat Dreger, “Ambiguous Sex” —or Ambivalent Medicine? 

(continued . . .)
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¶217 The majority cites no contrary authority—indeed, it 

concedes the threshold point. See supra ¶¶ 4 n.5; 90, 104. And I can 

find no basis for viewing the designation of a person‘s ―sex‖ on a 

birth certificate as anything other than a reference to biological 

sex. There is thus no basis for any ambiguity in the meaning of the 

term ―sex‖ in the context of a birth certificate designation. The 

term, in this context, is plain. Any ambiguity is eliminated by 

context.

¶218 That leaves only the question whether the reference to 

a ―sex‖ designation on a birth certificate can be viewed to 

incorporate a different meaning when it comes to a ―change‖ to 

that designation. And again, the answer to that question is clear. 

The statute itself doesn‘t spell out an express standard for a court 

to issue an order approving a change to a birth certificate ―sex‖ 

designation. But that speaks volumes. In a statutory scheme that 

governs both the original content of a birth certificate and later 

changes to that content, the reference to a ―change‖ to the original 

content cannot be viewed to alter the scope of the original content. 

The ―sex‖ designation in both instances is the same.

¶219 This was, in fact, the widespread understanding of the 

concept of a ―change‖ to birth certificate ―sex‖ designation at the 

time of the initial enactment of the controlling statute. In every 

single state with statutes allowing an amendment to a sex 

designation on a birth certificate in 1975 (there were only a few), 

literally all of them required a change to physiological 

manifestations of biological sex—sex-reassignment surgery.103

 

Ethical Issues in the Treatment of Intersexuality, 28 HASTINGS CTR 

REP. 24, 27–28 (1998) (describing how, in cases involving 

ambiguous genitalia, teams of medical experts such as 

―geneticists, pediatric endocrinologists, [and] pediatric urologists‖ 

are assembled to determine sex based on biological factors).

103 See Edward S. David, The Law and Transsexualism: A 

Faltering Response to a Conceptual Dilemma, 7 CONN. L. REV. 288, 

300–04 (1974) (suggesting that it was ―difficult to ascertain‖ where 

the states stood on the matter in 1974 but identifying only three 

states—Arizona, Illinois, and Louisiana—that allowed ―birth 

certificate changes for transsexuals‖ and noting that all of them 

required sex-reassignment surgery); see also In re Ladrach, 513 

N.E.2d at 830 (noting that the three states that had statutes 

(continued . . .)
IN RE SEX CHANGE

ASSOCIATE CHIEF JUSTICE LEE, dissenting

98

¶220 The majority gives an initial nod to the obvious 

connection between the biological concept of ―sex‖ on the original 

 

allowing birth certificate amendments based on sex change 

(Arizona, Illinois, and Louisiana) required surgery); Act of May 4, 

No. 39, 1973 Haw. Sess. Laws 50–51 ( ―A new certificate of birth 

shall be prepared by the director of health for a person born in the 

State upon receipt of an affidavit by a physician that he has 

performed an operation on the person and that by reason of the 

operation the sex designation on such person‘s birth record 

should be changed‖); Act of June 11, 1975, ch. 556, 1975 N.C. Sess. 

Laws 602, 602 (allowing a petitioner to ―change the sex on his or 

her birth record because of sex reassignment surgery, provided 

that the request is accompanied by a notarized statement from a 

physician licensed to practice medicine stating that he performed 

the sex reassignment surgery or that, based on his physical 

examination of the individual, he or she has undergone sex 

reassignment surgery‖); New York City Dep‘t of Health & Mental 

Hygiene Board of Health, Notice of Adoption of Amendment to 

Article 207 of the New York City Health Code (2018), 

https://www1.nyc.gov/assets/doh/downloads/pdf/notice/201

8/noa-amend-article207-section207-05.pdf (―In 1971, the Board of 

Health [was allowed] to file a new birth certificate with a 

corrected gender marker . . . for a person . . . who underwent 

 ̳convertive‘ surgery.‖ ―[T]he requirement for convertive surgery‖ 

was not eliminated until 2014.); NAT‘L CTR. FOR HEALTH STATISTICS

, Pub. No. (PHS) 78-1115, MODEL VITAL STATISTICS ACT AND 

MODEL STATE VITAL STATISTICS REGULATIONS § 21(e) (1978),

https://www.cdc.gov/nchs/data/misc/mvsact77acc.pdf 

(allowing birth certificate amendment when ―the sex of an 

individual born in this State has been changed by surgical 

procedure‖); Dean Spade, Documenting Gender, 59 HASTINGS L.J.

731, 768 (2008) (―Every state allowing change of sex on a birth 

certificate requires evidence of surgery to warrant a gender 

reclassification. . . .‖).

The majority has cited no contrary authority. It has thus 

conceded that its standard is not rooted in any legal standard in 

place when the governing statute was amended. And it has 

accordingly acknowledged that its decision can be viewed only as 

the establishment of new judicial policy by the Utah Supreme 

Court.
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birth certificate and the statutory reference to a ―change‖ to that 

designation. But it quickly abandons the connection (without 

acknowledging the active nature of its move).

¶221 The initial concession is the statement that the court 

―believe[s] that, much like a sex designation made at birth, a 

change in sex designation should be accompanied by objective 

evidence.‖ Supra ¶ 105. So far, so good. Yet the very next sentence 

is the articulation of an entirely new concept of a change in the 

designation of a person‘s sex. After stating that it ―believe[s]‖ that 

the ―sex‖ designation on the original birth certificate is based on 

objective medical evidence, the court moves immediately to this: 

―As a result, we hold that a petitioner must present, at the 

minimum, evidence of appropriate clinical care or treatment for 

gender transitioning or change, provided by a licensed medical 

professional.‖ Supra ¶ 105. But this is a linguistic non-sequitur. 

The court‘s new standard is by no means a ―result‖ of the 

biological concept of sex that controls the original birth certificate 

designation. This is clear from the fact that the court nowhere 

attempts to tie its standard of ―gender identity‖ to a definition of 

―sex.‖104 In formulating its new standard, the majority is not 

invoking an ordinary or legal definition of ―sex‖—and certainly 

not a definition from the time period in which the statute in 

question was enacted. It is just asserting that there is ―gap‖ in the 

statute, and leaping from that gap to the prerogative of 

establishing a novel meaning of the words that do appear in the 

statute. See supra ¶ 50.

¶222 There is no ―gap‖ that is not eliminated by the context 

of the statute in which the term ―sex‖ appears. A statute that 

refers only elliptically to an order for a ―change‖ to the 

designation of a person‘s ―sex‖ on a birth certificate must be 

viewed to refer to the same concept of sex established at the time 

of a child‘s birth. 

¶223 A basis for a change in that designation could be 

established upon discovery of a mistake in the biological sex 

__________________________________________________________

104 The court does refer to a definition of ―sex‖ in a different 

legal setting—in a statute prohibiting discrimination on the basis 

of ―sex‖ in housing. See supra ¶ 4 n.5. But it does not adopt the 

housing discrimination notion of ―sex,‖ or even its separate 

concept of ―gender identity.‖ See infra ¶ 226 (discussing this point 

further).
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100

designation made at the time of a child‘s birth, or a showing that 

the biological features of an intersex person have developed

differently than expected at birth. It also might be met where a 

person can demonstrate that the biological indicators of sex have 

been altered, as by sex-reassignment surgery.105 But the statutory 

basis for a change in a birth certificate ―sex‖ designation cannot be 

established on the mere basis of a change in ―gender identity‖ 

evidenced only by ―appropriate clinical care or treatment‖ for 

gender transitioning or change. This is not our law. Gender 

identity is not sex—at least not in the birth certificate context.106

__________________________________________________________

105 Such surgery conceivably could establish a basis for a 

―change‖ to a person‘s ―sex‖ that would sustain a birth certificate 

amendment. I stop short of giving a conclusive answer, however,

because this case comes before us in a non-adversary posture and 

this question is not presented for our decision in any event.

If and when our law adopts a standard along these lines, that

could require us to address some of the line-drawing questions 

highlighted by the majority. Supra ¶ 91 (citing an ―array of 

surgical options‖ and a disagreement among the courts as to what 

might qualify as ―sex-reassignment surgery‖). But I am not 

advancing a proposed standard for ―sex change‖ based on sexreassignment surgery. And the concern about line-drawing is at 

least as clearly implicated by a standard requiring courts to decide 

(without adversary input) whether a petitioner is seeking 

―appropriate clinical care or treatment for gender transitioning or 

change.‖ Supra ¶ 105.

106 The majority concedes that the sex determination on a birth 

certificate is ―generally determined by an external  ̳anatomical 

examination,‘ not by an examination of the individual‘s 

chromosomal makeup.‖ Supra ¶ 88. It also notes, however, that 

―sex chromosomes are immutable‖ and cannot be altered by 

―therapy, treatment, or procedure.‖ Supra ¶ 88. And with that in 

mind, the court insists that the legislature ―could not have 

intended to include consideration of sex chromosomes in its 

conception of  ̳sex‘ in a statute regarding name and sex change.‖ 

Supra ¶ 88. On that basis, the court then proceeds to assert that 

―any definition of  ̳biological sex‘‖ must somehow ―ultimately fail 

in this context.‖ Supra ¶ 89 n.39. Yet that does not follow. The 

court has identified a basis for limiting the basis for an 

amendment to a birth certificate sex designation to the basis for 

(continued . . .)
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

101

¶224 In the paragraphs below I develop further support for 

this understanding in the canon of consistent meaning and the 

presumption that legislatures ―don‘t hide elephants in 

mouseholes.‖

1. Consistent Meaning

¶225 The consistent meaning canon says that a term used in 

one sense in a body of law is ―presumed to bear the same 

meaning‖ elsewhere. ANTONIN SCALIA & BRYAN A. GARNER,

READING LAW: THE INTERPRETATION OF LEGAL TEXTS 170 (2012). 

The presumption is by no means irrebuttable. When context 

indicates, the same term can be understood to be used in two 

different ways in the same body of law. See id. at 172–73. Yet 

context can also reinforce the presumption, and the canon of 

 

the initial designation—physical observation. It has not, however, 

identified any reason to call that basis for the sex designation into 

question.

The majority goes off on some further tangents that miss this 

nuance and misunderstand my position. In defending its view, 

the court rejects as ―absurd[]‖ the notion that ―biological sex‖ 

might ―includ[e] the immutable genetic makeup of an 

individual.‖ Supra ¶ 89. And it then argues at some length that a 

birth certificate sex designation must therefore be a ―legal 

classification‖ and not a ―biological‖ one, supra ¶ 89, and even 

that ―any definition of  ̳biological sex‘‖ must accordingly ―fail in 

this context.‖ Supra ¶ 89 n.39. I find this puzzling. No one has 

argued that the biological sex designation on a birth certificate 

should be based on a chromosomal test. The question is not 

presented, and I have not advanced this position. I have argued 

instead that the basis for an amendment to a birth certificate sex 

designation should be focused on the basis for the initial sex 

designation—physical observation of anatomical manifestations 

of sex. That is a legal classification based on a biological 

classification. And there is nothing absurd about it.

The question presented goes not to the basis for the biological 

determination (which is also the legal determination), but to 

whether a statute that makes clear reference to that determination 

can be viewed as compatible with a determination of a person‘s 

gender identity. It cannot.
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

102

consistent usage is strongest where, as here, the same term is used 

in closely connected ways.107

¶226 The connection here is unmistakable. It follows from 

the fact that the statute fails to speak independently of a standard 

for a ―change‖ in the designation of a person‘s ―sex‖—the basis 

for such an order is simply presumed. In this setting, there is an 

implicit assumption that the ―sex‖ designation subject to 

―change‖ is the same sort of designation being made in the first 

place. Where all agree that the original ―sex‖ designation on a 

birth certificate is an objective determination based on observation 

of physical characteristics, the statutory reference to an order for 

an amendment to the same designation on the same document must 

be understood in the same way.

¶227 The majority‘s contrary conclusion is rooted in part in 

its consideration of an entirely distinct body of law—in a 

definition of ―sex‖ in the Utah Fair Housing Act. See supra ¶ 107 

n.50 (stating that the court is looking to the statute ―for 

guidance‖). Because that statute prohibits discrimination in 

housing on the basis of ―sex,‖ and says that ― ̳sex‘ means gender,‖ 

not ―gender means sex,‖ the court concludes that ―the legislature, 

in its wisdom, conferred broader meaning on the term  ̳sex.‘‖ 

Supra ¶ 4 n.5 (quoting UTAH CODE § 57-21-2(22)). But the court 

identifies no basis for extending the Fair Housing Act definition of 

―sex‖ to the use of that term in the context of birth certificate 

amendments. It nowhere explains, moreover, how it can get its 

particular ―broader meaning‖—―appropriate care or treatment for 

gender transitioning or change‖—out of the Fair Housing Act.

Ultimately, the Fair Housing Act definitions cut squarely against 

the majority‘s position.

¶228 The case law makes clear that the consistent meaning 

presumption is particularly sensitive to context. The presumption 

―can hardly be said to apply across the whole corpus juris.‖ SCALIA 

& GARNER, supra, at 172. Where two bodies of law are clearly 

__________________________________________________________

107 See Off. of Pub. Advoc. v. Superior Court, Third Judicial Dist., 

462 P.3d 1000, 1006 (Alaska 2020) (employing the consistent 

meaning canon where two statutes were ―enacted close in time‖ 

and ―addresse[d] related subject matter‖); ANTONIN SCALIA &

BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL 

TEXTS 172–73 (2012) (noting that the canon is strongest where the 

connection between two statutory provisions is clearest).
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

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distinct from each other, ―[t]he mere fact that‖ the same words are 

used in each area of law ―is not a sufficient reason‖ for treating 

the meaning established in one body of law ―as authoritative on 

the construction of another statute.‖ Rupert Cross, Precedent in 

English Law 192 (1961)Id. at 172–73 (citation omitted). The further 

removed the two bodies of law are from each other (in subject and 

time of enactment), the weaker the presumption of consistent 

meaning. Id. at 173. This defeats the majority‘s reliance on the Fair 

Housing Act definition of ―sex.‖ The cited definition in the Fair 

Housing Act was enacted in 1989—fourteen years removed from 

the statute at issue here. Housing discrimination, moreover, bears 

little connection to birth certificate amendments. The clearly closer 

connection is to the use of ―sex‖ in the initial formation of the 

birth certificate. For these reasons, the Fair Housing Act definition 

is hardly supportive of the majority‘s view.

¶229 The majority never explains, moreover, how it gets 

from the Fair Housing Act‘s notion that ―sex means gender‖ to the 

idea that ―sex means care or treatment for gender transitioning or 

change.‖ It does not—even under the Fair Housing Act. The cited 

definition of ―sex‖ is truncated in the quote in the majority 

opinion. Under the housing statute, ― ̳sex‘ means gender and 

includes pregnancy, childbirth, and disabilities related to pregnancy and 

childbirth.‖ UTAH CODE § 57-21-2(22) (emphasis added). The 

italicized language is significant. It indicates that even in the Fair 

Housing Act, the legislature isn‘t using ―sex‖ (or ―gender‖) to 

refer to care or treatment for gender transitioning or change, but 

to aspects of sex that are related to the biological indicators of sex 

(like pregnancy and childbirth). This conclusion is reinforced by 

the Fair Housing Act‘s separate prohibition of discrimination 

based on ―gender identity,‖ and the separate definition of that 

term as incorporating ―the meaning provided in the Diagnostic 

and Statistical Manual (DSM-5),‖ which may be established by 

evidence of ―medical history, care or treatment of the gender 

identity, consistent and uniform assertion of the gender identity, 

or other evidence that the gender identity is sincerely held, part of 

a person‘s core identity, and not being asserted for an improper 

purpose.” Id. § 57-21-2(16).

¶230 This is telling. Perhaps the Fair Housing Act 

definitions in some way suggest that the legislature ―conferred 

broader meaning to the term  ̳sex‘‖ than the term would bear in 

other contexts. But there is no reason to view the housing 

definition to apply in the birth certificate context. And the housing 
IN RE SEX CHANGE

ASSOCIATE CHIEF JUSTICE LEE, dissenting

104

definitions, if anything, confirm that ―sex,‖ however broad, does 

not mean ―care or treatment for gender transitioning or change.‖

¶231 The majority, in all events, does not ultimately apply 

the Fair Housing Act definition of ―gender identity.‖ It rejects that 

statute‘s requirement of proof that gender identity is ―sincerely 

held‖ and ―part of a person‘s core identity.‖ Supra ¶ 107. And the 

court turns instead to standards of gender identity applied by the 

Social Security Administration, the State Department, and courts 

in other states.108 See supra ¶¶ 108–10.

¶232 The majority‘s standard, moreover, does not even 

align with the standards promulgated by the Social Security 

Administration and State Department or with many of the cited 

standards adopted in other states.109 The federal standards require 

__________________________________________________________

108 The majority also refers to orders entered in twelve cases 

filed in our Utah district courts, asserting that such orders ―show‖ 

that ―an objective medical standard‖ is ―workable.‖ Supra ¶ 111. 

But the cited orders can hardly be viewed as representative of the 

standards applied by our Utah district courts. They are just a 

sampling of orders submitted by the petitioners in support of 

their proposed standard. The cited Utah orders, moreover, are not 

supportive of the majority‘s approach in any event. They do not 

suggest that our district courts have provided for an amendment 

to a sex designation on a birth certificate based on proof of 

―appropriate clinical care or treatment for gender transition or 

change.‖ Several of them refer to completed surgery or ongoing 

hormone therapy, neither of which is required by the majority‘s 

new standard. See In re Davis, No. 173900047, at 2 (Utah Dist. Ct. 

Second Dist. Mar. 27, 2017) (petitioner had undergone irreversible 

genital reassignment surgery); In re Collins, No. 153902244, at 3 

(Utah Dist. Ct. Third Dist. Dec. 3, 2015) (petitioner had undergone 

hormonal replacement therapy, had been receiving female 

hormones for decades, and had undergone gender reassignment 

surgery).

109 The State Department also recognizes a difference between 

an individual who is still undergoing transition, and one who has 

completed that transition, although it does not require surgery as 

evidence that a sex transition is complete. Change of Sex Marker, 

U.S. DEP‘T OF STATE, 

https://travel.state.gov/content/travel/en/passports/needpassport/change-of-sex-marker.html (last visited April 22, 2021).
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

105

certification of clinical treatment from a Doctor of Medicine or 

Doctor of Osteopathy.110 And two of the cited state standards 

require sex-reassignment surgery.111

¶233 The majority‘s standard is different. Our court 

provides for a change in the sex designation on a birth certificate 

upon proof of any form of ―appropriate clinical care or treatment 

for gender transitioning or change.‖ Supra ¶ 18. This is not a 

standard rooted in the language of our Utah statute, or any 

plausible understanding of ―sex‖ in this context. It is a sweeping 

new standard formulated by this court.112

__________________________________________________________

110 Program Operations Manual System, RM 10212.200 Changing 

Numident Data for Reason other than Name Change, SOC. SEC.

ADMIN., (Jun. 13, 2013), 

https://secure.ssa.gov/poms.nsf/lnx/0110212200 (last visited 

April 22, 2021); Change of Sex Marker, U.S. DEP‘T OF STATE, 

https://travel.state.gov/content/travel/en/passports/needpassport/change-of-sex-marker.html (last visited March 26, 2021).

111 See supra ¶ 110; In re McDannell, 2016 WL 482471, at *4 (Del. 

Ct. Com. Pl. Feb. 5, 2016); In re Heilig, 816 A.2d 68, 86 (Md. 2003). 

112 The Chief Justice stops short of endorsing the majority‘s 

substantive standard. Instead of requiring proof of ―appropriate 

clinical care or treatment for gender transitioning or change,‖ the 

Chief Justice proposes to require only proof of ―proper cause‖—a 

standard (imported from the name-change setting) that forecloses 

petitions filed ―for a wrongful or fraudulent purpose.‖ See supra

¶ 131. I would not equate the concepts of name-change and sexchange for reasons explained below. See infra ¶¶ 270–80. But I also 

see problems with the Chief Justice‘s proposed standard on its 

own terms. 

―Proper cause‖ is not a substantive standard. It does not define 

the relevant concept of a designation of a person‘s ―sex.‖ It is 

simply the articulation of a negative basis for rejecting a petition 

filed for improper reasons. And without some substantive 

standard or articulation of the operative concept of the 

designation of a person‘s ―sex‖ on a birth certificate, we will be 

left with nothing but unbridled judicial discretion on what is 

―proper.‖ See supra ¶ 132 (suggesting the need to let the 

―parameters of the scope and nature of the evidence necessary to 

(continued . . .)
IN RE SEX CHANGE

ASSOCIATE CHIEF JUSTICE LEE, dissenting

106

2. Elephants in Mouseholes

¶234 Even if there were some ambiguity as to the meaning 

of ―sex‖ in the birth certificate context, the ambiguity could not 

properly be viewed as a basis for this court to establish an evolved 

concept of ―gender identity‖ for birth certificate amendments. 

Any such ambiguity cuts the other way. A legislature that sees no 

reason to speak to the ―standard‖ for issuance of an order for 

amendment of the sex designation on a birth certificate is not 

delegating policymaking power to the courts on a matter with the 

potential for momentous implications. It is presuming that the law 

is not breaking any new ground, and carrying forward the settled, 

static meaning of a ―sex‖ designation on a birth certificate.

¶235 This is confirmed by another canon of interpretation—

the presumption that legislatures ―do[] not . . . hide elephants in 

mouseholes.‖ Rutherford v. Talisker, Canyons Fin., Co., LLC, 2019 

UT 27, ¶ 53, 445 P.3d 474 (alteration in original) (quoting Whitman 

v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001)). This canon is 

premised on the understanding that legislative bodies do not 

―alter the fundamental details‖ of our law ―in vague terms or 

ancillary provisions.‖ Whitman, 531 U.S. at 468. The canon has 

been applied as the basis for this court‘s reluctance to find that our 

legislature altered the common law doctrine of primary 

assumption of risk in a statute that did not explicitly use the term 

―negligence‖ in its regulation of the liability of ski area operators. 

Rutherford, 2019 UT 27, ¶ 53. And in the federal realm, the courts 

have invoked the canon as the basis for the conclusion that the 

Food Drug and Cosmetic Act did not delegate to the Food and 

Drug Administration (FDA) the power to regulate cigarettes and 

nicotine as a ―drug‖ in the absence of a clear statement of such 

intention, see Food & Drug Admin. v. Brown & Williamson Tobacco 

Corp., 529 U.S. 120, 159–61 (2000), and that the Controlled 

 

establish proper cause . . . to develop over time, as district court 

judges exercise . . . broad discretion‖). 

The ―proper cause‖ standard thus kicks the can down the road 

on what should count as a salient showing of a change in a 

person‘s ―sex‖ as reflected on a birth certificate. In this sense, it is 

an invitation for judicial policymaking on a case-by-case basis. 

And it is accordingly no more defensible than the standard 

established by the majority.
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

107

Substances Act did not delegate to the Attorney General ―broad 

and unusual authority‖ to prohibit physicians from prescribing 

drugs for use in physician-assisted suicide ―through an implicit 

delegation‖ in the statute‘s ―registration provision.‖ Gonzales v. 

Oregon, 546 U.S. 243, 267 (2006).

¶236 These principles are applicable here. The delegation of 

common-law power to set a new, evolving standard for the 

issuance of an order for amendment of the sex designation on a 

birth certificate is a big deal. Because such sex designations have 

sweeping effects on our society, it is highly unlikely that the 

legislature would have made an ―implicit delegation‖ of such 

common law power. This is quite an elephant. And the statute 

governing only the effect of such an order is a tiny mousehole.

¶237 Consider the sweeping nature of the majority‘s 

holding. In establishing a new standard for an order for a sex 

change designation on a birth certificate, the court cites a Fair 

Housing Act definition of ―gender identity,‖ standards 

implemented in recent years by the Social Security Administration 

and the United States State Department, decisions handed down 

in the past few years by the appellate courts of states governed by 

laws distinct from our Utah law (none of them involving a statute 

phrased as ours is), and a few unpublished orders of our Utah 

district courts. Supra ¶¶ 108–11. None of these sources defines a 

change in a ―sex‖ designation on a birth certificate in the manner 

the court does. So the majority is not citing these authorities as 

somehow establishing the meaning of a change in a sex 

designation on a birth certificate as those terms are used in our 

Utah statute. It is simply referring to them in the course of an 

exercise of its own asserted common-law authority.

¶238 The 1975 Utah Legislature was not delegating such 

sweeping policymaking power to the courts. It was not hiding 

such an enormous elephant in the obscure mousehole of a 

provision governing only the effect of an order for an amendment 

to the sex designation on a birth certificate.

¶239 The statute applies ―[w]hen a person born in this state 

has a . . . sex change approved by an order of a Utah district 

court.‖ UTAH CODE § 26-2-11. And this statutory mousehole 

implies the anticipation of a mere mouse—a straightforward 

showing of a person‘s ―sex change‖ that can be made in the same 

way the initial sex designation was made. If the initial sex 

designation on the birth certificate is based on ―biological sex as 

evidenced by chromosomes, genitals, and other physical 
IN RE SEX CHANGE

ASSOCIATE CHIEF JUSTICE LEE, dissenting

108

characteristics,‖ then the ―change‖ to that designation should be 

understood to carry forward that same standard.

¶240 As noted above, such a showing could be made 

through simple, straightforward evidence—proof that the initial 

designation was made initially in error, that an ―intersex‖ 

person‘s sex designation has been proven wrong over time, or 

that the biological markers of sex have been altered by medical 

interventions like sex-reassignment surgery. A change in the sex 

designation on a birth certificate on these grounds fits within the 

statutory understanding of the ―sex‖ designation on a birth 

certificate. It would thus be a ―mouse.‖ But the changes endorsed 

by the court today are another matter. They are an enormous 

elephant that could not have been contemplated by the Utah 

Legislature in 1975.

B. Delegation of Common-Law Policymaking Power?

¶241 The 1975 statute may not expressly articulate a 

―substantive standard‖ for the entry of a birth certificate 

amendment order. See supra ¶ 54. But it does speak to the type or 

―kind[]‖ of birth certificate designation at issue. See supra

¶ 123.And any supposed ―gap‖ in the statute cannot be taken as a 

delegation of common-law power for the courts to update the law 

in accordance with our evolved views of gender identity.

¶242 The majority seeks to root its contrary conclusion in 

three grounds: (1) the assertion that our courts retain broad 

common-law power to fill in ―gaps‖ in statutes except where the 

exercise of such power ―conflicts with statutory guidance,‖ supra

¶ 53; (2) the notion that the reference to ―sex change‖ is 

―combined‖ with ―name change,‖ which purportedly is a 

delegation of authority to develop a common-law of sex change, 

supra ¶ 50; and (3) the observation that the registrar is bound to 

amend birth certificates in response to orders of ―a court of 

competent jurisdiction of another state or a province of

Canada‖—a fact the court takes as an indication that the 

legislature has prescribed no standard of sex at all, but has left the 

matter to the courts (whether in Utah or elsewhere). Supra ¶ 78

(emphasis omitted).

¶243 All of these premises collapse on closer scrutiny. And 

the majority‘s analysis is undermined not only by the cases it cites, 

but also by the canon of constitutional avoidance (under the nondelegation doctrine).

1. Legislative Gaps
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

109

¶244 The court‘s first premise is built on the notion of a 

―gap‖ in a statute that speaks only to the effect of a court order. 

But the supposed gap cuts against the majority‘s position for 

reasons set forth above—the gap should be filled in light of the 

established meaning of ―sex‖ in the birth certificate context, under 

the canon of consistent meaning and the ―elephants in 

mouseholes‖ canon.

¶245 The court‘s notion of its ―gap-filling‖ role is a novel 

one in any event. It finds no support in, and is in fact undermined 

by, the Utah cases cited in the majority opinion.113

¶246 Our Utah Code and case law concededly recognize 

the residual authority of the common law. By statute, our 

legislature long ago adopted ―[t]he common law of England so far 

as it is not repugnant to, or in conflict with, the constitution or 

laws of the United States, or the constitution or laws of this state, 

and so far only as it is consistent with and adapted to the natural 

and physical conditions of this state and the necessities of the 

people hereof.‖ UTAH CODE § 68-3-1. And our opinions have 

reinforced that the common law retains its power ―[i]n the absence 

of applicable constitutional or statutory authority.‖ Spackman ex 

rel. Spackman v. Bd. of Educ. of Box Elder Cty. Sch. Dist., 2000 UT 87, 

¶ 20, 16 P.3d 533.

¶247 But the ―common law‖ is not an invitation for courts 

to search for gaps in the law to fill in with judicial policy. It is an 

established body of case law, identifying a range of rights and 

duties residing outside the positive law set forth in statutes and 

constitutions. See S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) 

(Holmes, J., dissenting) (―The common law is not a brooding 

omnipresence in the sky, but the articulate voice of some 

sovereign or quasi sovereign that can be identified.‖); Common 

Law, BLACK‘S LAW DICTIONARY (11th ed. 2019) (―The body of law 

derived from judicial decisions, rather than from statutes or 

constitutions.‖). The rights and duties established in that body of 

case law of course are subject to evolution and development over 

__________________________________________________________

113 In other jurisdictions, the case law may occasionally assert a 

prerogative of an ―inherent equity power of courts of general 

jurisdiction‖ that is sufficiently sweeping to encompass the 

majority‘s approach. See supra ¶ 56 (quoting In re Change of Birth 

Certificate, 22 N.E.3d 707, 709 (Ind. Ct. App. 2014)). But our Utah 

case law leaves no room for this approach.
IN RE SEX CHANGE

ASSOCIATE CHIEF JUSTICE LEE, dissenting

110

time. But it is a body of law, not a basis for freestanding judicial 

policy.

¶248 This point is established by the majority‘s own 

precedent. Absent legislative abrogation, existing bodies of 

common law ―retain‖ their ―authority.‖ Supra ¶ 50 n.22 (quoting 

Williamson v. Farrell, 2019 UT App 123, ¶ 17, 447 P.3d 131). And 

we do not lightly presume that the legislature meant to abolish 

established bodies of common law by legislation. Supra ¶ 50 n.22

(citing Anderson v. Bell, 2010 UT 47, ¶ 16 n.5, 234 P.3d 1147). But 

those principles presuppose the existence of established bodies of 

common law to be retained, or to avoid abolishing. If and when 

there is no existing body of common law, there is no basis for the 

conclusion that the legislature meant to delegate the power to 

create it out of whole cloth.

¶249 Our decision in Rawcliffe v. Anciaux, 2017 UT 72, 416 

P.3d 362, is not to the contrary. There we simply held that the 

common law may ―assist[] in defining the scope of‖ common-law 

terms used in statutes. Id. ¶ 14. We did not hold that the only limit 

on our exercise of common-law power is that it not directly 

―conflict[] with‖ a governing statute. Supra ¶ 53.

¶250 There are established bodies of common law on a 

wide range of subjects. The first-year law student‘s curriculum is 

focused on some of these subject areas—on property, contract,

and tort law, and the ―common law‖ of crimes (though the latter 

is completely abolished in Utah, see UTAH CODE § 76-1-105). That 

list is by no means exhaustive. Another prime example is the law 

of remedies—a body of case law setting forth background 

standards and principles for damages and injunctive relief to be 

awarded across a range of claims.

¶251 In these fields, a gap in a statute may be taken as a 

reservation of retained common law power. But the same does not 

hold in every field of law. Some fields are purely statutory or 

administrative. There is no common law, for example, of 

hazardous waste permits, or hunting licenses, or Medicare. And 

there is thus no ―retained‖ common law to fill in ―gaps‖ in these 

fields. If the legislature leaves a gap in these areas, it must be 

filled in by reference to the language and structure of the statute—

not by the invention of some new body of ―common law.‖

¶252 This principle is established by our decision in 

Mariemont Corp. v. White City Water Improvement Dist., 958 P.2d 

222 (Utah 1998). There we confronted a ―gap‖ in a statute 

governing petitions to withdraw from a water improvement 
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

111

district—in a provision that allowed for withdrawal upon the 

filing of a petition by ―a majority of the real property owners‖ in a 

particular territory, id. at 223, but did not speak to ―whether 

names [could] be added to or removed from withdrawal 

petitions‖ after they had been filed. Id. at 226. Despite the gap, we 

emphasized the need to base our decision on the ―language‖ and 

structure of the statute and an ―attempt to harmonize the various 

provisions‖ of the statute. Id. at 227. And we openly repudiated

the idea of a court ―fashion[ing] a statutory rule out of whole cloth 

without having any idea of the legislature‘s intentions.‖ Id.

¶253 The court‘s new standard for designation of a person‘s 

―sex‖ on a birth certificate is of the ―whole cloth‖ variety.114 There 

is no common law that governs this field. And there is no basis for 

the majority‘s assertion of common-law power.

¶254 The court‘s cited cases are not to the contrary. They 

undermine the majority‘s approach and support my position.

Spackman ex rel. Spackman v. Board of Education

¶255 The court did not invoke the ―common law‖ in 

Spackman as a matter of filling in a gap in our state constitutional 

law—in the sense of an exercise of power to make new law as we 

best saw fit. In establishing standards for damages remedies for 

constitutional violations, we expressly held that ―a court‘s 

authority to do so arises from the common law‖ of remedies. 

Spackman, 2000 UT 87, ¶ 20. We thus cited provisions from the 

Restatement (Second) of Torts and established cases on the 

common law of remedies. Id. And we nowhere indicated that a 

__________________________________________________________

114 The majority broadly disclaims that it is making such a 

move. See supra ¶ 53. But it also fails to identify any basis for its 

new standard in the language of the statute or in any body of 

common-law. And its decision is thus by definition ―out of whole 

cloth‖—the cloth of a new court-made standard.

A threshold element of the court‘s new standard is borrowed 

from the common-law of name changes. See supra ¶ 18 (requiring 

proof that sex change petition is not for a ―wrongful or fraudulent 

purpose‖). But the core standard of ―gender identity‖ as ―sex‖ is 

rooted purely in the court‘s own analysis of policy considerations. 

This standard bears no relation to any element of a common-law 

name-change proceeding. And the court has identified no basis 

for its authority to establish such a standard.
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

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perceived ―gap‖ in the law was an invitation for us to make pure 

policy out of whole cloth. To the contrary, we established a basis 

for constitutional remedies by applying and extending a 

traditional body of common law.

Rawcliffe v. Anciaux

¶256 Rawcliffe does not support the assertion of judicial 

power to inject new judicial policy into a statutory scheme so long 

as it does not directly ―conflict[] with‖ enacted statutes. Supra

¶ 53. The cited language is taken out of context. And the context 

undermines the majority‘s approach and reinforces my position.

¶257 The statute at issue in Rawcliffe ―codified . . . common 

law duties‖ of corporate officers and directors set forth in ―our 

precedent.‖ Rawcliffe, 2017 UT 72, ¶ 14. Because the statute itself 

did not define the duties incorporated from the common law, our 

Rawcliffe decision followed the presumption that statutes that 

borrow common-law terms of art are understood to carry forward 

―the legal tradition and meaning‖ of those terms ―accumulated‖ 

in historical ―practice‖ in the case law. Id. (quoting Maxfield v. 

Herbert, 2012 UT 44, ¶ 31, 284 P.3d 647). In that setting, we held 

that the meaning borrowed from the common law could not be 

accepted if it ―conflict[s] with‖ the terms of the statute. Id.

¶258 In so stating, we did not establish the power of a court 

to formulate a brand new body of common law aimed at updating 

or expanding the reach of a statute. We did not overrule the 

proscription of a court ―fashion[ing] a statutory rule out of whole 

cloth without having any idea of the legislature‘s intentions.‖ 

Mariemont Corp., 958 P.2d at 227. And we did not hold that such 

power may be exercised so long as it does not ―conflict with‖ the 

governing terms of a statute.

Cox v. Laycock

¶259 This is also clear from the Cox v. Laycock decision. In 

that case we were interpreting a provision of the Election Code 

that lacked a provision ―describ[ing] how to fill a candidate 

vacancy in the case of an annulled primary election.‖ Cox v. 

Laycock, 2015 UT 20, ¶ 41, 345 P.3d 689. Despite this gap, we did 

not fill it on the basis of our judicial policy preferences, or suggest 

that there was a basis for doing so in some sort of ―common law‖ 

of election vacancy filling. We simply ―analyze[d] the act in its 

entirety‖ and sought to ―harmonize its provisions in accordance 

with the legislative intent and purpose.‖ Id. ¶ 42 (quoting 

Mariemont Corp., 958 P.2d at 225).
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

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¶260 The Cox decision thus further undermines the 

majority‘s decision. If we were following the Cox approach, we 

would not be fashioning a new standard of ―sex‖ based on our 

own ―common law‖ policy preferences; we would be 

harmonizing the law by interpreting the statutory reference to an 

order for an amendment to a ―sex‖ designation in harmony with 

the way the sex designation is made on the birth certificate in the 

first instance.

Whyte v. Blair

¶261 The majority cites Whyte v. Blair as a supposed 

example of our court ―inject[ing] meaning‖ into statutes under 

our independent power to make common law policy. Supra ¶ 52. 

But the Whyte case does not support the majority‘s approach. 

Again, it contradicts it. 

¶262 The statute at issue in Whyte abrogated a longstanding 

statutory prohibition of ―common law marriage‖ in Utah. 885 

P.2d 791, 793 (Utah 1994). It thus authorized our courts to enter 

orders recognizing a ―marriage . . . not solemnized‖ formally 

under the code. UTAH CODE § 30-1-4.5. And this court interpreted 

the statute to incorporate (at least in part) settled ―common law‖ 

standards for establishing an unsolemnized marriage. 885 P.2d at 

794. 

¶263 Our analysis in Whyte was not the assertion of 

independent policymaking power of the court. We were not 

formulating a new standard of ―common law marriage,‖ or 

prescribing our own view of ideal ―factors‖ for the determination 

of person‘s marital status. We were interpreting a statute that 

incorporated the language of settled common law—and that in 

fact was introduced in the legislature ―as a common law marriage 

provision.‖ Id. at 793. The statute in question was interpreted as a 

―codification of common law marriage principles.‖ Id. And we 

accordingly interpreted it as such.

¶264 The statute in question made broad reference to the 

notion of a ―marriage‖ that was not ―solemnized‖ under Utah 

Code section 30-1-4.5. It also incorporated factors long considered 

in the common law case law—capacity to give consent, 

cohabitation, mutual assumption of marital rights and duties, and 

reputation as husband and wife. UTAH CODE § 30-1-4.5(1). The 

majority is thus wrong to assert that ―none‖ of the common law 

factors cited in Whyte ―appear in‖ the governing statute. Supra

¶ 52. And in any event, Whyte is not a case in which the court was 

asserting the power to create a new common law standard. To the 
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

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contrary, we were interpreting a statutory ―codification‖ of an 

established body of law as the adoption of established standards.

Anderson v. Bell

¶265 The majority cites Anderson v. Bell for the proposition 

that our common-law authority neither depends on nor is easily 

limited by statutes. Supra ¶ 50 n.22. That may be true, but it‘s 

irrelevant to defining the scope of our power to establish new 

fields of common law.

¶266 Anderson establishes that not ―every instance that a 

statutory scheme and the common law converge . . . necessarily 

mean[s] the legislature has abolished the common law.‖ 2010 UT 

47, ¶ 16 n.5, 234 P.3d 1147, superseded by statute on other grounds, 

UTAH CODE § 20A-9-502. When a statutory definition ―mirrors‖ a 

common law definition, Anderson endorses a presumption that the 

statute embraced the common law definition. Id. ¶ 16 & n.5. In 

Anderson, the court concluded that the statutory definition of 

―signature‖ mirrored the common law definition of that term. 

And it thus interpreted the statute to carry forward the common 

law definition. Id. ¶ 16.

¶267 That analysis presupposes the existence of a field of 

―common law.‖ And a case defining the relationship between the 

common law and statutory definitions says little about the extent 

of our common law powers. Much less does it show that a 

statutory ambiguity can create common law powers. To the 

contrary, Anderson instructs courts on how to interpret a statute 

that adopts a common-law definition. 

Williamson v. Farrell

¶268 The same goes for the court of appeals‘ analysis in 

Williamson v. Farrell. In applying a set of standards for the 

disposition of declaratory judgment actions, the court of appeals 

admittedly was applying ―four  ̳threshold elements‘ for 

declaratory judgment actions‖ that did not ―appear anywhere‖ in 

the Utah Declaratory Judgment Act. 2019 UT App 123, ¶ 17, 447 

P.3d 131. But the court of appeals was not prescribing those 

factors anew, out of whole cloth. It was observing that these 

factors were deeply embedded in a body of common law case law, 

and interpreting a statute that authorized ―declaratory 

judgments‖ but did not ―contain provisions setting forth the 

specific elements of a proper declaratory judgment claim.‖ Id.

¶ 11.
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

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¶269 This bears little relation to the majority‘s analysis in 

this case. Here we are not dealing with a statute that incorporates 

a term that is transplanted from the common law. We are 

presented with a statute that speaks of a change in a ―sex‖ 

determination on a birth certificate—a matter that has never had 

any common law meaning. And that forecloses the majority‘s 

reliance on any supposed common law power, under Williamson

and under all of the other cases it relies on.

2. Combination with Name Change

¶270 The majority seeks to avoid the above problems by 

noting that the birth certificate statute ―combine[s]‖ together the 

notion of an amendment to a ―sex‖ designation on a birth 

certificate with that of a ―name change‖ amendment to the same 

document. Supra ¶ 50. Because there is an established body of case 

law that was incorporated into our statutory proceedings for a 

―name change‖ in Utah, the court asserts that the court must have 

been implicitly delegating to us the common law power to 

formulate a new common law standard for a birth certificate ―sex 

change.‖ Supra ¶¶ 50–51 (asserting that because the legislature 

―knowingly and purposefully combined name and sex changes 

together‖, there is a basis for our ―common-law authority‖ to 

formulate a new standard not prescribed by the legislature).115

__________________________________________________________

115 The Chief Justice seeks to draw a different inference from 

the fact that ―the terms  ̳sex change‘ and  ̳name change‘ are 

bundled together‖ in the statute. Supra ¶ 124. While recognizing 

that these forms of amendment are ―different . . . both in 

magnitude and legal consequence,‖ the Chief Justice asserts that 

―the legislature appears to be focused on the way in which they 

are similar—they are both identifiers on a birth certificate.” Supra

¶ 124. I take the point as far as it goes. But I cannot see how the 

parallel structure of the statute can be viewed to dictate the 

application of a name-change standard to adjudication of a sexchange petition.

The designation of a person‘s name is different from the 

designation of a person‘s sex. And the threshold question on a 

petition to change either designation is whether the petition is 

addressed to the type or ―kind[] of birth certificate amendment[] 

subject to the statute.‖ Supra ¶ 123. A name-change amendment is 

thus available only if it involves a change to a person‘s ―name,‖ 

just as a sex-change amendment is available only if it involves a 

(continued . . .)
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

116

¶271 This does not follow from the cases cited by the 

majority. Those cases, in fact, cut against its analysis.

¶272 We have certainly stated that ―a word or phrase [that] 

is transplanted from another legal source . . . brings the old soil 

with it.‖ Supra ¶ 50 (quoting Maxfield, 2012 UT 44, ¶ 31,. And the 

birth certificate statute does borrow some language from the 

common law—in the reference to an amendment to the birth 

certificate under an order for a ―name change.‖ That phrase has 

common law meaning. And our case law quite properly has 

interpreted the Utah Code to have imported the common law 

standard for a ―name change‖ proceeding under our statutes. See 

In re Porter, 2001 UT 70, ¶ 8, 31 P.3d 519; In re Cruchelow, 926 P.2d 

833, 834 (Utah 1996). It in no way follows, however, that ―[w]hen 

the legislature transplanted‖ both ―name change‖ and ―sex 

change‖ in the same statute, ―it statutorily planted both  ̳sex 

change‘ and  ̳name change‘ in the latter‘s  ̳old soil,‘‖ much less 

that it meant for us to establish a ―common law‖ standard for ―sex 

change.‖ Supra ¶ 50.

¶273 The court‘s syllogism is oversimplified. Our Maxfield

opinion does not say that the use of one term imported from the 

common law imbues the entire statute with common-law 

meaning. In fact it draws a distinction between a ―word or 

phrase‖ borrowed from ―the common law‖ and a term imported 

from ―legislation.‖ Maxfield, 2012 UT 44, ¶ 31. And it states that 

each such legal ―term[] of art‖ is presumed to carry ―the legal 

tradition and meaning‖ of its past practice, and ―the cluster of 

ideas that were attached to each borrowed word in the body of 

learning from which it was taken.‖ Id. (emphasis added) (citation 

omitted). The full quote about transplants in Maxfield is this: 

―[W]hen a word or phrase is  ̳transplanted from another legal 

source, whether the common law or other legislation, it brings the old 

soil with it.‘‖ Id. (emphasis added) (quoting Felix Frankfurter, 

Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 

537 (1947)).

 

change to a person‘s ―sex.‖ The concepts of ―name‖ and ―sex‖ are 

thus defined by the terms of the Utah Code. And the fact that the 

two terms both can be said to fall within the category of 

―identifier‖ is not a reason to equate the two concepts.
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

117

¶274 This forecloses the majority‘s notion that the 

legislature ―planted . . .  ̳sex change‘ in the name change‘s  ̳old 

soil.‘‖ Supra ¶ 50. There is a common-law concept of and standard 

for a legal ―name change.‖ But there has never been a commonlaw concept of a ―sex change,‖ or a change in the legal designation 

of a person‘s ―sex.‖ This is purely a statutory term, with a ―legal 

tradition and meaning‖ and ―cluster of ideas‖ attached to it in the 

birth certificate context. And for that reason Maxfield actively 

undermines the majority‘s approach.

¶275 The majority thus identifies no support for its novel 

assertion that a statutory term takes on common-law meaning 

when ―combined‖ with common-law terms. And the court‘s 

analysis misses a nuance in the canon of interpretation that it 

relies on. A threshold principle, as noted, states ―[t]he age-old 

principle . . . that words undefined in a statute are to be 

interpreted and applied according to their common-law 

meanings.‖ SCALIA & GARNER, supra, at 320. But this canon has an 

important counterpart—the principle that a statute that employs a 

term with an established meaning in a statutory field is presumed 

to ―bear[] this same meaning‖ when adopted by the legislature. Id. 

at 324. This is an aspect of the ―prior construction canon‖—the 

principle that a term that has an established meaning in a 

―particular field of law (to which the statute belongs)‖ is 

interpreted to carry that same meaning in a statute enacted by a 

legislature. Id.; see also Rutherford, 2019 UT 27, ¶ 62 (stating that a 

term whose meaning is ―firmly established‖ in a particular field is 

viewed as having been ―carried forward by the legislature‖). 

¶276 This canon is sometimes invoked when a statute is 

reenacted in the face of a conclusive construction of a statutory 

term by a court of last resort. See SCALIA & GARNER, supra, at 324. 

But it is not limited to this application. ―It applies as well‖ to an 

established ―administrative interpretation‖ of a legal term in a 

given field. Id. Such an interpretation is part of the statute‘s 

context. See id. We understand that a legal term with accepted 

meaning in a given field ―bears this same meaning‖ when it is 

imported into a statute. Id.

¶277 Our Utah case law establishes this precise position. 

Where our legislature uses terms that have a settled 

―administrative interpretation‖ in a particular field, that 

interpretation is understood to be carried forward in the statute. 

New Park Mining Co. v. State Tax Comm’n, 196 P.2d 485, 486 (Utah 

1948) (treating the reenactment of a tax statute addressed to ―net 
IN RE SEX CHANGE

ASSOCIATE CHIEF JUSTICE LEE, dissenting

118

income from . . . property during the taxable year‖ as the 

legislative adoption of the ―administrative interpretation‖ of this 

language by the Tax Commission).116 The United States Supreme 

Court has likewise endorsed this view. See Fed. Deposit Ins. Corp. v. 

Phila. Gear Corp., 476 U.S. 426, 436–37 (1986) (endorsing the same 

canon in the context of Congress‘s adoption of a statute speaking 

of a ―deposit‖ in the estate tax context; holding that federal 

statutes adopting this language in this legal context are 

understood to carry forward the established understanding of the 

term).

¶278 The settled meaning of the ―sex‖ designation on a 

birth certificate has been established at the ground level—in the 

administration or practice of preparing and submitting birth 

certificates. At that level, all agree that the administrative concept 

of an original birth certificate ―sex‖ designation has long been 

viewed as a matter of biological sex.117

¶279 The administration of the statute may not require or 

call for an official interpretation by the Office of Vital Records. 

―[R]ather, sex is designated (primarily) by medical professionals 

who presumably are not versed in the nuances of administrative 

definitions in the law.‖ Supra ¶ 53 n.23. But that just shows how 

deeply embedded the administrative practice is. The long-settled 

practice reflects the established administrative meaning of this 

term. And the lack of a need for agency interpretation just shows 

that the administrative practice is well-settled; it doesn‘t tell us 

that there is no understanding that should be carried forward 

under our law.

¶280 The majority‘s framework fails on this basis. As the 

court itself notes, the birth certificate amendment statute 

__________________________________________________________

116 In New Park Mining Company v. State Tax Commission, the 

court ultimately resolved the case under statutory terms that it 

deemed neither ―ambiguous [n]or uncertain.‖ 196 P.2d 485, 487 

(Utah 1948). I would also resolve this case based on the statute‘s 

plain meaning. See supra ¶¶ 207, 216. But the administrative 

construction canon would resolve this case even if the meaning of 

―sex‖ bore any meaningful ambiguity.

117 The agreement is not limited to members of this court. 

Statutes and case law confirm this understanding. See supra ¶¶ 85; 

89 n.40, 104, 219 n.103.
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

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articulates no express standard for an order for a ―change‖ to a 

birth certificate ―sex‖ designation—it just presupposes the 

authority for the issuance of such an order. That, again, is telling. 

The ―same meaning‖ is presumed to be carried forward in the 

legislature‘s presumption of court power to order a ―change‖ in 

that same designation.

3. Delegation to Courts in Other Jurisdictions

¶281 The majority also seeks to support its assertion of 

judicial policymaking power by noting that an amendment to a 

Utah birth certificate is required in response to an order for a 

change of a sex determination entered by ―a Utah district court or 

a court of competent jurisdiction of another state or a province of 

Canada.‖ Supra ¶ 78. A key premise of the majority‘s argument is 

the assertion that our legislature is somehow powerless to 

―control the standard for  ̳sex‘ or  ̳sex change‘ applied by any 

other jurisdiction.‖ Supra ¶ 78. From that premise, the majority 

reasons that the legislature must have meant to ―omit a 

substantive standard from the statute,‖ supra ¶ 77 n.31, and thus 

to leave the development of the operative standard to the courts—

whether in Utah or in other states or Canadian provinces.

¶282 The court‘s syllogism misses a key nuance that foils its 

central premise. It is undoubtedly the case that the Utah 

Legislature ―cannot control the standard for  ̳sex‘ or  ̳sex change‘‖ 

for another jurisdiction’s birth certificates. Supra ¶ 78. But the Utah 

Legislature can and does control the legal standards defining the 

content of Utah birth certificates. And no other state (or province 

of Canada) is in a position to alter these Utah standards by 

entering an order under substantive standards developed in 

another jurisdiction.

¶283 The articulation of substantive state law is ―the very 

essence of . . . sovereignty.‖ Toler v. Oakwood Smokeless Coal Corp., 

4 S.E.2d 364, 366 (Va. 1939). Utah has a ―right of supremacy‖ in 

articulating the legal framework dictating the content of Utah 

birth certificates. Id. And no other state is in a position to ―force‖ 

its laws on this state.118 Id.

__________________________________________________________

118 I see no way to conclude that the majority is not opening 

the door to ―other jurisdictions forcing their substantive law on 

Utah.‖ Supra ¶ 123. The majority‘s analytical framework does just 

that. If the statutory concept of a ―sex‖ designation on a birth 

(continued . . .)
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

120

¶284 The Utah Legislature has exercised the state‘s 

sovereignty in statutes aimed at prescribing the content of the 

vital records issued by the State of Utah. See UTAH CODE § 26-2-1

to 26-2-28 (providing framework for establishing the content of 

Utah vital records). A Utah birth certificate is thus a Utah vital 

record whose content is controlled by Utah law. And no other 

state has authority to alter the content of a Utah record by 

application of its contrary laws.

¶285 The Utah Legislature admittedly has directed our 

courts to defer to the judgments of other courts—to Canadian 

judgments as a matter of comity, and to judgments of the courts of 

other states as a constitutional matter of full faith and credit. See 

U.S. CONST. art. IV, § 1. But that isn‘t a delegation of power to 

courts in other jurisdictions to alter substantive Utah law. It is a 

simple recognition of the effect of those judgments.

¶286 Courts ―differentiate[] the credit owed to laws 

(legislative measures and common law) and to judgments.‖ Baker 

v. Gen. Motors Corp., 522 U.S. 222, 232 (1998). ―A final judgment in 

one State, if rendered by a court with adjudicatory authority over 

the subject matter and persons governed by the judgment, 

qualifies for recognition throughout the land.‖ Id. at 223. But the

principle of full faith and credit ―does not compel  ̳a state to 

substitute the statutes of other states for its own statutes dealing 

with a subject matter concerning which it is competent to 

legislate.‘‖ Id. at 232 (quoting Pac. Emps. Ins. Co. v. Indus. Accident 

Comm’n, 306 U.S. 493, 501 (1939)). It requires only deference to a 

foreign state‘s judgment. And that state may be required to apply 

Utah ―statutes dealing with a subject matter concerning which‖ 

our Utah Legislature is ―competent to legislate.‖ Id.

 

certificate is not a matter of substantive Utah law, then the courts 

of each state and Canadian province retain the power to apply 

their own law in this arena. To sustain that conclusion, we would 

have to assume that the Utah Legislature was delegating 

substantive authority to every other state and Canadian province 

to regulate and alter the framework for our Utah birth certificates.

The majority‘s analytical framework is mistaken. A Utah birth 

certificate is a Utah vital record. Its terms and conditions are 

governed by Utah law. And neither the majority nor the Chief 

Justice has cited any support for their contrary views.
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

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¶287 There is no question that the Utah Legislature is 

―competent‖ to regulate the content of our Utah vital records. 

Utah law controls the content of Utah vital records. And courts in 

other jurisdictions are thus bound to apply Utah law in the 

issuance of any order directing the amendment of such records.119

¶288 Nothing in the statute at issue here suggests 

otherwise, or indicates that the legislature was conferring power 

on the courts of other states to impose their substantive law on the 

content of a birth certificate on the registrar of vital records in 

Utah. The statute provides only that Utah citizens and institutions 

may avail themselves of the courts of other states and may be 

controlled by such decisions. That leaves open the question of 

which state‘s substantive law should govern those decisions. And 

there can be no question that Utah law is the substantive law that 

governs the content of Utah vital records.120

__________________________________________________________

119 Courts in other jurisdictions apply our Utah law with some 

regularity—just as our courts do in reverse. See, e.g., Spann v. Am. 

Express Travel Related Servs. Co., 224 S.W.3d 698, 708–13 (Tenn. Ct. 

App. 2006) (applying Utah contract law to determine whether a 

―class arbitration waiver clause in . . . cardmember agreements‖ 

was unconscionable‖); Federated Fin. Corp. of Am. v. Jenkins, 719 

S.E.2d 48, 51–52 (N.C. Ct. App. 2011) (applying Utah law to 

determine enforceability of a contract‘s forum selection clause). 

This is simply a matter of choice of law.

120 The majority argues past my position in its response to the 

above. We can take as a given that the Utah registrar lacks 

―discretion‖ in this field and is bound to give ―respect and 

reciprocity to court orders of sister jurisdictions.‖ Supra ¶ 78 n.33. 

We can also stipulate that the legislature could have stated more 

clearly its intent to have Utah law control the content of Utah 

birth certificates. Supra ¶ 78 n.33. But my threshold points remain 

unrefuted: (a) the statute speaks only to the full faith and credit to 

be given to judgments of courts of other jurisdictions; (b) the Utah 

registrar can give full faith and credit to such judgments without 

delegating to other courts the power to amend or revise our Utah 

substantive law; and (c) the content of a Utah birth certificate is a 

matter governed by Utah law.

Courts in other jurisdictions would not be bound to follow our 

Utah law on justiciability. But see supra ¶ 78 n.33 (suggesting that I 

am arguing that courts in other states could not rule on non-

(continued . . .)
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

122

¶289 The majority‘s contrary view will give rise to an 

unworkable patchwork of standards for Utah birth certificates. It 

will require the Utah registrar to reformulate and revise the 

framework for a Utah birth certificate each time a court 

establishes a new conception of a person‘s sex under the 

substantive law of another state or province of Canada.

¶290 This is no mere hypothetical. Increasingly, courts in 

various states are developing standards for non-binary and other 

gender designations on birth certificates for persons born in those 

states.121 Under the majority‘s view, our Utah birth certificates will 

have to bow to and somehow incorporate these and other 

standards. The result will be the transformation of a Utah birth 

certificate into an evolving, patchwork certificate that will ebb and 

flow in response to orders entered under the law of other states 

and provinces of Canada.122 That is not what the Utah statute was 

 

adversarial petitions). But they would be bound to follow Utah 

law on the terms and conditions of a Utah vital record. That point 

stands unrefuted. And it undermines the inference drawn by the 

majority.

121 See CAL. HEALTH & SAFETY CODE § 103430(a) (West 2021) 

(providing for an individual to petition for a court ―order for a 

new birth certificate‖ recognizing ―a change in the petitioner‘s 

gender as female, male, or nonbinary‖); WASH. REV. CODE

§ 70.58A.500(4) (allowing the state registrar to ―amend a vital 

record to change the sex designation of the subject of the record,‖ 

including ―a nonbinary option for sex designation on the record‖); 

Matter of Hollister, 470 P.3d 436, 441–43 (Or. Ct. App. 2020) 

(determining that Oregon statute that provided for ―[a] circuit 

court [to] order a legal change of sex‖ allowed for changes of 

―legal sex‖ to ―male, female, or nonbinary‖).

122 As the majority notes, Canadian courts have established 

certain rights of relevance to birth certificate designations under 

the Constitution of Canada and the Ontario Human Rights Code. 

Supra ¶ 78 n.32. I have no position on these cases, having no 

knowledge of Canadian law and having had no opportunity to 

review the briefs filed in the cited cases. But I do have a position 

on the impact of these decisions on the content of Utah birth 

certificates. Our Utah courts may be required to respect 

judgments and orders entered in Canadian courts. Canadian 

(continued . . .)
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

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mandating in requiring deference to decisions of the courts of 

other states.

¶291 If anything, the statutory structure cuts against the 

majority‘s approach. In placing Utah court decisions on par with 

the decisions of courts of other states and provinces of Canada, 

the legislature was indicating that the operative legal standard is 

not one to be developed by any of these courts. Instead, the 

standard is established by the settled understanding of a sex 

designation on a birth certificate—as a reference to a designation 

of biological sex based on physical observation.

¶292 The result is not a ―meaningless statute.‖ Supra ¶ 77 

n.31. It is a statute that presupposes the existence of a settled 

understanding of the basis for a sex designation, and sees no need 

to articulate it in the express terms of the statute.

4. Constitutional Avoidance

¶293 The majority‘s inferences from the purported 

statutory ―gap‖ also raise serious constitutional questions. To the 

extent the court is asserting that there is literally ―no statute,‖ 

supra ¶ 45, that says anything of relevance to the operative concept 

of an order for a change in a ―sex‖ designation on a birth 

certificate, its analysis raises serious constitutional questions 

under the non-delegation doctrine. And that is a further basis for 

questioning the majority‘s approach.

¶294 Our constitution gives ―[l]egislative power‖ to the 

Utah Legislature. UTAH CONST. art. VI, § 1. This is the authority to 

make legislative policy by ―bill or joint resolution . . . passed . . . 

with the assent of the majority of all the members elected to each 

house of the Legislature.‖ Id. art. VI, § 22. Subject to further terms 

and conditions set forth in article VI, the legislature has the power 

to ―promulgat[e] . . . laws of general applicability . . . based on the 

weighing of broad, competing policy considerations.‖ Carter v. 

Lehi City, 2012 UT 2, ¶ 34, 269 P.3d 141; see also Rampton v. Barlow, 

464 P.2d 378, 381 (Utah 1970) (speaking of the legislative power as 

―the authority to make laws‖).

¶295 The constitutional doctrine of separation of powers 

precludes the delegation or assignment of these powers. Under 

 

human rights laws, however, do not control substantive Utah law, 

and do not dictate the content of Utah birth certificates.
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124

article V, section 1, our government is ―divided into three distinct 

departments, the Legislative, the Executive, and the Judicial.‖ 

UTAH CONST. art. V, § 1. And ―no person charged with the exercise 

of powers properly belonging to one of these departments, shall 

exercise any functions appertaining to either of the others, except 

in . . . cases . . . expressly directed or permitted‖ by the Utah 

Constitution. Id. This court has long held that this provision 

―restricts the ability of the legislature to delegate legislative 

functions to administrative agencies.‖ State v. Briggs, 2008 UT 83, 

¶ 14, 199 P.3d 935 (alteration in original) (citation omitted). And 

the same prohibition extends to the delegation of legislative 

power to the courts. ―[J]udicial legislation‖ is foreclosed by the 

Utah Constitution. State v. Johnson, 137 P. 632, 634 (Utah 1913). So 

if there were truly an ―absence of legislative enactment‖ on the 

nature of the change in a birth certificate sex designation 

anticipated by the legislature, ―it would savor of 

[unconstitutional] judicial legislation‖ for our court to make new 

policy in this field. Id. at 635.

¶296 ―[T]he legislature is not required to expressly 

authorize every administrative action, procedure, or rule‖ 

adopted by other governmental departments in the 

implementation of a legislative scheme. Briggs, 2008 UT 83, ¶ 14. 

But ―it is prohibited from delegating  ̳core‘ or  ̳essential‘ legislative 

power or functions.‖ Id. (citation omitted) And if and when the 

legislature fails even to identify a core, governing principle to 

control the law applied in other branches of government, there is 

an unconstitutional delegation of ―essential legislative functions, 

which cannot be transferred.‖ Id. (citation omitted).

¶297 The line is clearly stated, though it may admit of 

occasional fuzziness in application. Core ―legislative policy‖ must 

be established by the legislature. Clayton v. Bennett, 298 P.2d 531, 

535 (Utah 1956) (citation omitted). But once the core policy is 

established, other departments of government may be called up to 

prescribe rules governing the administration or ―execution‖ of the 

policy. Id. (citation omitted)

¶298 To police this line, our court has held that rules 

adopted by other departments must be in furtherance of ―the 

legislative will expressed in statutory form.‖ Id. (citation omitted)

―Any discretion‖ left to other departments must be ―confined to a 

designated field,‖ within which these departments are not making 

an ―unfettered choice‖ but a decision based on the legislatively 

enacted law. Rowell v. State Bd. of Agric., 99 P.2d 1, 3 (Utah 1940)
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

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(citation omitted). Legislative enactments must thus ―lay down 

rules and tests to guide and control‖ other departments of 

government ―in the exercise of the discretion granted‖ to them. Id. 

at 4 (citation omitted). At a minimum, the legislature must ―mark 

the course to be pursued, and the principles, facts, and purposes 

to serve as guideposts to enable‖ another branch of government 

―to carry out‖ not its ―own will or judgment but that of the 

legislature.‖ Id. Other governmental departments may thus ―only 

effect policy mandated by statute and cannot exercise a sweeping 

power to create whatever rules they deem necessary.‖ Robinson, 

2001 UT 21, ¶ 14.

¶299 These standards have been illuminated by their 

application in a range of cases. This court has held, for example, 

that the legislature may not delegate to the courts or to other 

departments the unguided discretion to adopt a ―definition of a 

crime‖ or prescribe ―the precise punishment therefor,‖ Briggs, 

2008 UT 83, ¶ 14 (citation omitted); Johnson, 137 P. at 634 

(describing such act as unconstitutional ―judicial legislation‖); to 

make a wholly discretionary judgment as to ―the amount of [a] 

penalty‖ as a ―sanction‖ for non-payment of a tax, Tite v. State Tax 

Comm’n, 57 P.2d 734, 740 (Utah 1936); or to make a policy 

determination as to ―the standards or purposes which are to 

control‖ the fixing of prices for ―surplus milk,‖ Rowell, 99 P.2d at 

4.

¶300 The analysis and holdings of these cases are 

illustrative. Because there is no common law of crimes in Utah, 

there is no independent power for our courts to make our own 

policy judgments on the basis for filling in perceived gaps in 

criminal enactments. To do so would ―savor of judicial 

legislation‖—in unconstitutionally supplementing the criminal 

code with our own policy preferences. Johnson, 137 P. at 635

(citation omitted). That principle holds even where our judicial 

moral compass may ―regret[]‖ that there is a gap in a statute. Id.

(noting that it is up to the legislature to decide whether to fill in 

such a gap).

¶301 Parallel concerns informed our decision to foreclose 

the legislative power to delegate to other departments the amount 

of a sanction for non-payment of a tax. In repudiating the 

constitutionality of the delegation of that power to the tax 

commission, we highlighted the legislature‘s failure to give the 

commission any ―basis‖ for ―ascertain[ing] the amount of the 

penalty.‖ Tite, 57 P.2d at 740. Absent such basis, we found a 
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

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constitutional defect in any decision to give ―to the tax 

commission the power to determine in its own judgment the 

amount of the penalty.‖ Id. (emphasis added). And we viewed 

that as a ―legislative function which could not be delegated.‖ Id.

¶302 This was also the basis for our decision to strike down 

a purported delegation of the power to set state policy on price 

fixing of surplus milk. In our Rowell opinion, we condemned the 

alleged delegation of ―unfettered choice‖ to the board of 

agriculture to establish legislative policy. See Rowell, 99 P.2d at 3 

(quoting Elite Dairy Prod’s. v. Ten Eyck, 3 N.E.2d 606, 609 (N.Y.

1936)). And we emphasized that the legislature must ―mark the 

course to be pursued‖ with a set of legislative ―guideposts,‖ and 

could not delegate to another department the authority to carry 

out its ―own will or judgment.‖ Id. at 4. Where the ―only 

prerequisite‖ to the adoption of a new policy is the ―arbitrary 

assent‖ of a non-legislative body, there is a ―naked delegation of 

legislative power,‖ and a violation of the Utah Constitution. Id. at 

5 (citation omitted).

¶303 The majority‘s decision runs afoul of these principles 

to the extent it relies on its own purported power to make policy 

as a matter of the common law. In asserting the authority to 

engage in its own act of policymaking, the court contends that 

―neither Utah Code section 26-2-11 nor any other statute contains 

explicit standards or procedures for petitions for sex change.‖ 

Supra ¶ 47 (emphasis added). In light of the legislature‘s 

purported failure to legislate, the court asserts the broad 

prerogative of judicial policymaking as a matter of our ―commonlaw authority,‖ which in its view ―is not dependent on or limited 

by a statutory provision‖ that does not expressly foreclose such 

power. Supra ¶ 50 n.22. These conclusions are mistaken not only 

because any supposed gap can be filled through statutory 

interpretation, but also because there is no such thing as a 

―common law‖ of amendments to a sex designation on a birth 

certificate. This is fatal under the above-cited case law. Even 

assuming for the sake of argument that the legislature has left a 

completely empty space that cannot be filled as a matter of 

statutory interpretation, we could not on that basis assert the right 

to engage in common-law policymaking.

¶304 The law on amendments to a sex designation on a 

birth certificate is like the criminal law. This is not a common law 

field—there is no common law that governs. And the purported 

lack of any statutory standard cannot be taken as a ―naked 
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

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delegation‖ of policymaking power. Rowell, 99 P.2d at 4. The 

court‘s insistence on the existence of such power is the assertion of 

the authority to make ―judicial legislation,‖ Johnson, 137 P. at 634, 

which would run afoul of the Utah Constitution.

¶305 Again it is no answer to suggest that the court is just 

―apply[ing] the common law associated with name-change 

petitions.‖ Supra ¶ 54. The court has borrowed a single element 

from the law of name changes—in the prohibition of petitions 

sought for a ―wrongful or fraudulent purpose.‖ Supra ¶ 18. But 

the core standard established by the court goes well beyond that 

threshold requirement. The new standard for a ―gender identity‖ 

entry on a birth certificate is a matter of the majority‘s own 

making. That standard bears no relation to any element of a 

common-law name-change proceeding. It likewise bears no 

connection to the text of the governing statute. And for these 

reasons it amounts to an act of judicial legislation unbound by the 

terms or conditions of any common-law or any statute.

¶306 The court‘s reformulation of the legislature‘s concept 

of the sex designation on a birth certificate raises serious 

constitutional concerns. To the extent the majority is suggesting 

that there is no legislative standard that governs—and bare 

policymaking power delegated to the courts—its approach should 

be rejected as a matter of constitutional avoidance.

III. CONCLUSION 

¶307 Since 1975 our Utah law has provided for the issuance 

of a court order for amendment of the designation of a person‘s 

―sex‖ on a birth certificate. This is a plain reference to biological 

sex. It is not an invitation for judicial development of an evolved 

standard of ―gender identity.‖

¶308 The majority‘s new standard provides for a birth 

certificate amendment upon a showing of any care or treatment 

for gender transitioning or change. This was not the law enacted 

by our legislature in 1975. And it is not the law this court should 

be adopting—least of all in a case in which we lack adversary 

input from any adversary party.

¶309 The legislature can certainly ―override‖ our decision if 

it disagrees. See supra ¶ 54. But that is no reason for us to step in to 

do the legislature‘s job of amending or updating its laws. And it 

surely is no justification for our court‘s decision to override 

decades and even centuries of precedent on the core limits on our 

judicial power.
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

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¶310 The legislature has no power to undo that decision. In 

a system that gives our court the final say on constitutional 

questions, we ourselves bear the responsibility to interpret and 

abide by the limits on our constitutional power. We should hold 

those limits sacred. We will rue the day that we cast them aside.