A Cass County judge exceeded his authority by ordering a transgender boy undergo a mental examination before legally changing his name, according to an opinion issued this week by the Western District Court of Appeals.
Judge R. Michael Wagner presided over a change of name hearing in October 2015 involving a Belton transgender boy.
The boy is referred to as Nathan or N.N.H. in court documents.
Nathan, now 15, whose sex at birth was female, identifies as male. He petitioned to change his birth name, Natalie, to Nathan.
Nathan had been known by his preferred name by teachers and peers during his attendance at the Belton Middle School/Freshman Center. However, substitutes would sometimes use his birth name while calling roll, according to Nathan’s mother, Rachel Andersen. She added it was humiliating for her son.
After the judge’s ruling, the family decided to pull Nathan from the school, opting for a home-schooled education.
“After the judge ordered what he did, Nathan just bawled and bawled and bawled,” Andersen said. “We had to talk with him about not committing suicide.”
The boy’s attorney, Blaine Elliott, cited 33 other cases in which Wagner presided over a name change request for a minor. In those 33 instances, Elliott wrote in a brief to the court of appeals, Wagner never ordered a mental evaluation. Elliott also pulled all change of name cases from 2009 through September at the 17th Judicial Circuit and found neither Wagner nor any other judge ever ordered a mental evaluation.
“(Nathan) is the only exception,” Elliott wrote in the brief. “Only when confronted with a minor who fails to conform to traditional gender stereotypes does (Wagner) seek to appoint a guardian ad litem or order a petitioner to undergo a mental evaluation. This is clear evidence of discrimination.”
Before Nathan’s hearing, Wagner asked for a guardian ad litem, or appointed guardian, for Nathan despite the fact that the boy’s mother was serving as his guardian and legal representative in court. The boy’s father is deceased, court documents show.
After the family refused Wagner’s request, the judge ordered the boy undergo a mental evaluation at the hearing, saying he had the child’s best interests in mind, according to court testimony.
“This is the first case that this court has had like this,” Wagner said at the hearing, an oblique reference to the fact that Nathan is transgender. Wagner then addressed Nathan directly: “This is a life-changing situation; it’s not a simple name change. It’s something that may be in your best interest — I don’t know.”
The judge added he was considering factors such as Nathan’s age, potential discomfort or embarrassment and the child’s relationship with his parents.
“I have … a duty to make sure it’s in the child’s best interest,” Wagner said.
Nathan’s mother immediately responded by saying, “And I have a duty as a parent …” before Elliott interrupted and spoke for the family, according to testimony.
Wagner, in a brief to the Court of Appeals, called R.S.A.’s comment an “outburst” and said she was “demanding and agitated” before him.
Nathan and his mother had earlier asserted that the name change was in Nathan’s best interest, according to testimony.
The mental evaluation order essentially blocked Nathan from changing his name.
But eight months after the hearing, in June, Elliott applied for a writ of prohibition against Wagner’s mental evaluation order. The legal maneuver can be granted by higher courts in cases in which a lower court judge is exercising excessive authority.
The Western District Court of Appeals granted the writ of prohibition Tuesday, reversing Wagner’s mental evaluation order.
Citizens can change their name in Missouri upon proof that the change is proper and not detrimental to any other person. Elliott said the type of mental evaluation ordered by Wagner could cost thousands of dollars and was not necessary for Nathan’s request.
The appellate judges, Lisa Hardwick, Karen Mitchell and Gary Witt, agreed. They ruled a person’s mental state does not “directly relate” to such a case. They called Wagner’s concerns for Nathan’s mental condition “conclusory,” or lacking supporting evidence.
The judges also disagreed with Wagner’s assertion that he was authorized to order a mental evaluation because he was acting as a family court judge.
“[T]here is no evidence in the record that the 17th Judicial Circuit has designated such a court,” the opinion, written by Hardwick, stated.
At Nathan’s hearing, Wagner recommended Nathan see Lisa Coleman, a licensed clinical social worker in Kansas City, for his mental evaluation.
Coleman, when reached by phone Wednesday, said judges had never before recommended clients to her for a mental evaluation in a change-of-name case.
She added, however, that any mental evaluation she would perform for a trans person would not be done to diagnose mental illness but to empower and prepare the person for his or her transition.
She said she would discuss coping skills, supportive resources and positive influences in peer and familial relationships with incipient trans clients.
“Everybody has to make their own choice of who they are,” Coleman said, “but to make that kind of a change alone sets you up for a whole lot of stress that can impact the success of transitioning from one gender to another.”
Nathan had begun his physical transformation with hormone shots before the October 2015 hearing, Andersen said. The family’s healthcare covers the cost of Nathan’s hormones, Andersen added, because gender dysphoria is a recognized medical condition.
“I think it’s insane that the medical field and state can’t deny it. They have to cover it for these kids, and yet he can’t get his name changed,” Andersen said.
A court clerk for Wagner, Tera Brewer, wrote by email that Wagner “wishes he could talk … but he can’t. This is a pending case and the Judge hasn’t ruled yet.”
Tony Rothert, the legal director for the American Civil Liberties Union of Missouri, said a change of name petition is typically the easiest step in the process of changing one’s identity.
But the next step is more difficult. Changing the gender marker on a birth certificate, Rorthert said, requires a trans person to provide proof of a surgical procedure that has resulted in change of sex.
However, some judges are more lenient than others in applying that requirement.
“Different courts have interpreted it more loosely,” Rothert said. He added some courts may consider psychological changes or surgery to the chest area as grounds for approving a change to one’s gender marker.
“That’s up to the judge’s interpretation,” Rothert said.
In Nathan’s case, the appellate judge’s ruling sends his change of name petition back to the 17th Judicial Circuit. The petition must still be approved by a judge in Cass County.
Elliott said he will likely request a new judge in Nathan’s case in the coming days.
In a July 2015 email to a clerk, Elliott first requested scheduling a change-of-name hearing for Nathan. He wrote that such hearings typically take about 10 minutes.
Elliott wrote in a brief to the court of appeals that Wagner’s order for a mental evaluation constituted a form of sex discrimination against Nathan because he is transgender.
“In the instant case, there is no doubt that had (Nathan) sought to change his name from Natalie to another traditionally female name, (Wagner) would not have ordered him to undergo a mental evaluation,” Elliott wrote. “(Wagner) can simply not offer any constitutionally sufficient justification for the discriminatory treatment.”
Wagner and his attorney, Nancy Garris, contended in their brief to the appellate court that sex did not factor in Wagner’s decision. Instead, they wrote that Nathan’s testimony did not match his “demeanor, voice inflection and actions,” causing Wagner to question Nathan’s free will in the matter.
Wagner also stated his concern in the brief that Nathan’s mother was coercing him to seek the name change.
Elliott disputed the judge’s claim.
“I think it’s fair to say that anyone who has ever had children would probably not want to go through this … would want their child to have an easy life,” Elliott said. “But being Nathan, you’re opening yourself up to discrimination, to others who treat you as not the same, as different.”
On Aug. 12, 2015, Elliott wrote an email to a circuit clerk employee, requesting that the judge set aside five minutes to hear Nathan’s case the next day. Elliott wrote that Nathan expressed hope that the process would be complete before the start of the school year.
The same day, the clerk wrote Elliott that Wagner would be able to meet the next day, but less than an hour later she wrote a second email, saying, “It turns out, Judge will not be able to hear this tomorrow. Judge would like to speak with you.”
Elliott said he met with Wagner the next day. During that meeting the judge requested the guardian ad litem in the case, according to Elliott.
Later, in their brief to the appeals court, Garris and Wagner wrote that Nathan was “agitated and vehemently opposed” to the guardian ad litem appointment during the in-chambers conference.
Except, according to Elliott, Nathan was not present at the conference.
“These are utter fabrications,” Elliott wrote to the Court of Appeals.
Throughout Wagner and Garris’ brief, Nathan is referred to by the feminine pronoun “she.”
In Elliott’s briefs and the appellate judges’ opinion document, Nathan is referred to throughout by the masculine pronoun “he.”
The appellate judges did not rule on Elliott’s claim of sex discrimination against Wagner. They wrote that their first finding in the case — that Wagner exceeded his authority by ordering the mental evaluation — was sufficient enough for the judges to issue their opinion. Elliott said Wagner will not face punitive consequences following the ruling.
“A name’s a name,” Elliott said. “It doesn’t make a person who they are.”