Elliott John Whitaker had put off coming out for months. Though confident he was transgender, Elliott still struggled with his identity. His mind refused to recognize the girl in his reflection, and putting that into words — the confusing mismatch between the brain and body — was as overwhelming as it was scary.
One afternoon, slouched over a desk in a study hall classroom, Elliott, 15, was outed by an unwitting ninth-grade teacher who called him Heidi — his birth name or as the transgender community terms it, his “dead name” — while taking attendance. Ohio is one of several states that requires a court order granting a legal name change before a school can adjust its records.
So on June 18, Elliott and his parents, Kylen and Stephanie Leigh, went to court to make his name change official, appearing in front of Judge Joseph Kirby at the Warren County Probate courthouse in Lebanon, Ohio. They expected the hearing to be a formality, but Kirby’s questions and commentary quickly turned to gendered toilets and Caitlyn Jenner, according to court transcripts.
Four days later, Kirby denied Elliott’s name change. In the three-page decision, he referred to Elliott as “she” and “her” because using his preferred pronouns made it “difficult to read,” Kirby wrote in a footnote.
The judge issued denials for two transgender 14-year-olds the same afternoon.
Ohio attorneys Joshua Langdon and Joshua Engel filed a class-action lawsuit against Kirby on Aug. 3, alleging the judge engaged in a pattern of intentional discrimination against transgender youth, preventing the plaintiffs from using names that align with their gender identity. The plaintiffs are the parents of three teenagers: Elliott, 15-year-old Jamie Oliver Shaul and an unnamed 17-year-old. The parents of the 17-year-old have delayed filing for a name change because they fear their child will be subjected to what they see as a pattern of discrimination by the judge.
On Monday, Kirby issued a written response to the lawsuit, stating that he “holds no bias against those that are transgender” and that his two decades on the bench have taught him that “children do not always know what is best for them during childhood.”
Kirby also said that “this Court” had granted multiple name changes for adults and children based on their transgender status. However, the Warren County chief bailiff told The Washington Post that the reference was not to Kirby’s individual caseload but to all judges in the courthouse.
Between January and May 2018, the Warren County Common Pleas Court reviewed 36 name change applications, 10 of them submitted by transgender adolescents and adults. Kirby was assigned all but one of the transgender name change cases — and none of the non-transgender applications — according to the court filing. Kirby denied all of the transgender name change requests except one that had been heard by a magistrate judge, according to court documents.
Normally, magistrate judges, who are appointed to assist district court judges, hold hearings for name change applications and write up a report, which the district court judge accepts or rejects, said Engel, a former Warren County prosecutor.
Instead of a magistrate-conducted hearing, Kirby conducted his own hearings for almost all of the name change cases.
“He chose to substitute his own view for the views of the expert about what’s in the child’s best interest. That’s an abdication of his responsibility as a judge, coupled with his seeming to treat transgender kids differently from nontransgender kids,” said Langdon.
Kirby has postponed Jamie’s case until the federal suit concludes, instead of reassigning it.
“This is what it’s like being a trans individual in a purple state,” said Trent Stechschulte, general counsel at Equitas Health, an organization providing legal services for Ohio name and gender change forms. Since opening the statewide clinics two years ago, its volunteer attorneys have assisted in over 400 name and gender changes.
“For these kids, the name change is huge,” said Leigh Whitaker. “It’s a part of their identity at a time when there’s so much they can’t change.”
Warren County — in the outskirts of the Cincinnati metropolitan area, near the Kentucky and Indiana borders — veers toward the conservative right. The Republican candidate has won at least two-thirds of the county’s vote in every presidential election since 2000.
Name change denials for transgender people rarely happen in larger Ohio cities, such as Cincinnati, Cleveland and Columbus, according to Stechschulte. Counties, however, are an entirely different venue. This is particularly true in states, such as Ohio, that have few laws aimed at protecting transgender individuals.
Ohio is one of three states — along with Tennessee and Kansas — with an anti-conversion bill, forbidding changes to gender markers on birth certificates, although the state does allow modifications to other identification documents, such as driver’s licenses. In May, House Bill 658 was introduced, which would require teachers to notify a student’s parents if they observe signs of gender dysphoria — the condition where an individual experiences discomfort because their gender identity doesn’t match the gender assigned at birth. Failure to do so could be prosecuted as a felony.
Elliott and Jamie said that they were not ready to go tell their classmates that they are transgender but that the current state of law forced them to take their stories public.
“The judge thought I was going through a phase that teenagers go through and that I was choosing to be this way,” Elliott said. “Never would I ever choose to have to go through this if it didn’t trouble me. It’s painful in so many ways to be trans.”
Elliott said he chose to go public because he wanted to change the system for others who are going through similar things.
“Once I was out, I was kind of glad because it put me on the path to actually transitioning,” Elliott said. “I like that I’m paving a path for everyone behind me.”