Judge's Corner

Article Index

Summary Judgment Motions - To File or Not to File? The Honorable Danielle J. Hunsaker, Washington County Circuit Court, Jason Kafoury, Kafoury & McDougal, and Joel Mullin, Stoel Rives, LLP (April 2019)

Judicial Challenges The Honorable Janet Stauffer, 7th Judicial Circuit (August/September 2017)

Use of Fictitious Names for Parties in Civil Litigation in Oregon The Honorable James Hargreaves (Senior Judge, retired), Lane County Circuit Court (June/July 2017)

The Judge's Pledge The Honorable Susan Tripp, Marion County Circuit Court (May/June 2017)

Organizing for the Courtroom The Honorable Daniel R. Murphy, Linn County Circuit Court (March/April 2017)

A Two Year Journey with Odyssey in Juvenile Court The Honorable Lindsay Partridge, Marion County Circuit Court (January/February 2017)

Lane County Streamlined Jury Trial Project The Honorable Curtis Conover, Lane County Circuit Court (November/December 2016)

20 Ways to Further Justice The Honorable Ilisa Rooke-Ley, Lane County Circuit Court (October/November 2016)

Managing Multi-Party/Complex Litigation without Driving Your Judge Crazy (and maybe even making it easier for everyone) The Honorable Henry Kantor, Multnomah County Circuit Court (September 2016)

Managing Multi-Party/Complex Litigation without Driving the Judge's Staff Crazy The Honorable Eve L. Miller, Clackamas County Circuit Court (August 2016)

Do's and Don'ts in the Courtroom The Honorable Lisa Greif, Jackson County Circuit Court (June/July 2016)

Preparation for a Status, Case Management, or Pretrial conference - or how to get more out of a non-evidentiary proceeding in criminal and family court cases The Honorable Kirsten E. Thompson, Washington County Circuit Court (April/May 2016)

Postponements The Honorable Richard Barron, Presiding Judge, Coos/Curry County Circuit Court (March 2016)

Consider Trying More Cases The Honorable Suzanne Chanti, Lane County Circuit Court Judge (February 2016)

Professionalism - It Counts Both In and Out of the Courtroom The Honorable Brian Dretke, Union County Circuit Court Judge (January 2016)

Changes to Sex Changes The Honorable Beth A. Allen, Multnomah County Circuit Court Judge (December 2015)

Top 25 Tips from a Senior Judge The Honorable Michael C. Sullivan, Senior Judge (retired), Deschutes County (November 2015)

How to Succeed at Power Point In the Courtroom The Honorable Michael McShane, US District Court (October 2015)

Effective Use of Evidence At Jury Trial The Honorable Matthew Donohue, Benton County Circuit Court (September 2015)

Making a Record for Appeal, The Honorable Charles M. Zennaché, Lane County Circuit Court (August 2015)

Access to Civil Justice in Oregon's State Courts, The Honorable David Brewer, Associate Justice, Oregon Supreme Court (July 2016)

What Jurors Want: A Look Into the Minds of Jurors, The Honorable John V. Acosta, United States Magistrate Judge (June 2015)

Handling the "Half-se" Hearing, The Honorable Mustafa Kasubhai, Lane County Circuit Court (May 2015)

Effective Voir Dire, Judge Thomas Hart, Marion County Circuit Court (April 2015)

The New Judge on the Block, Judge Lung S. Hung, Malheur County Circuit Court (March 2015)

The Gift of Finality: One PJ's Perspective, Judge Karsten H. Rasmussen, Lane County Circuit Court (February 2015)

ORCP 68 Attorney Fees - when, why and how to seek them, Judge Deanne L. Darling, Clackamas Juvenile Court (January 2015)

Difficult questions must be answered before they are asked, Judge Edward J. Jones, Multnomah County Circuit Court (December 2014)

Judicially Hosted Settlement Conferences, Judge Jamese L. Rhoades and Sr. Judge Don Dickey, Marion County Circuit Court (November 2014)

Working together to make discovery more efficient, The Honorable Youlee Yim You, Multnomah County Circuit Court (October 2014)

Court Trials - A Jury of One, The Honorable Katherine E. Tennyson, Multnomah County Circuit Court (September 2014)

Making the Most of Short Evidentiary Hearings, The Honorable Daniel R. Murphy, Linn County Circuit Court (August 2014)

Vouching, The Honorable Jay McAlpin, Lane County Circuit Court (July 2014)

Appropriate Jury Instructions Can Help Litigators Win Trials, The Honorable Paula Brownhill, Clatsop County Circuit Court (June 2014)

Evidentiary Hearings and Motion Practice in the era of Oregon e-court, The Honorable Benjamin Bloom, Jackson County Circuit Court (May 2014)

Motions in Limine - Tips for "Newer" Litigators, The Honorable Jodie Mooney, Lane County Circuit Court (April 2014)

The Honorable Beth A. Allen
Multnomah County Circuit Court Judge
(December 2015)

Changes to Sex Changes

In the 2013 legislative session, the requirements for a legal change of sex changed. Prior to that modification, only those persons "whose sex has been changed by a surgical procedure" were able to receive a judgment that changed their sex, and thereby obtain a birth certificate changing their gender marker. The new governing statute is as follows:

A court * * * may order a legal change of sex and enter a judgment indicating the change of sex of a person if the court determines that the individual has undergone surgical, hormonal or other treatment appropriate for that individual for the purpose of gender transition and that sexual reassignment has been completed. (ORS 33.460).

The big change is that surgery is no longer necessary for a petitioner to obtain a legal sex change judgment. This amendment was viewed as a huge success for transgender individuals because many do not want or cannot afford sex reassignment surgery in order to transition. Indeed, surgery is contraindicated for some individuals. Instead, what may be appropriate for an individual petitioner is hormone treatment. It may be that neither surgery nor hormone treatment is appropriate but that some "other treatment" is. It may mean psychiatric therapy, or it may be ordinary "talk" therapy, which can be provided by a non-doctor. Appropriate treatment could be simply living as a person of the sex opposite of that assigned at birth for a period of time. The key, it seems, is that what is appropriate must be determined in consideration of the individual's unique circumstances.

In Multnomah County, a petitioner may use pre-approved forms for all pleadings in an identity change. The packet contains a declaration setting forth that the specific requirements of the statute have been met. If the petitioner has signed the declaration, and no one offers evidence to controvert the declaration, and there are no concerns that the petitioner did not have capacity to execute the declaration, the petition will be granted. Essentially, sex change petitions are handled in the same manner name changes, which also generally are granted on only a declaration. Some judges do the identity docket in open court. Others prefer to review all the petitions in chambers while the petitioners wait in the courtroom. And, speaking of name changes, Multnomah County has forms for that common situation where both gender and a name change is sought. The form may be modified for those jurisdictions that do not have a blended form.

In other jurisdictions, judges have been requesting a doctor's note rather than or in addition to the declaration of the petitioner. Although I do not necessarily agree with that procedure, I would recommend that if further documentation is required and if a doctor has not been the transition care provider, the petitioner offer evidence to demonstrate that the person providing the transition care has the expertise to provide treatment to persons undergoing sex reassignment, in addition to the letter setting out that the petitioner has undergone appropriate gender reassignment treatment. As for the statement of the transition being "complete," how that is handled may differ from one judge to another, so check with the court clerk in advance to see what is expected as the judge may require that a specific category of third party provide that.

Some final notes. These days, young people whose gender identity does not match that assigned at birth are more comfortable with sharing their recognition of this reality at an earlier age, and/or are being taken more seriously when this news is shared. Thus, a gender change may be sought by a minor. In that case, the process for appointing a guardian is the same as for a minor seeking a name change.

And, in light of people's changing perceptions of the meaning of gender identity, already petitioners are looking to the courts to change a gender marker from either male or female to "other" or "neutral" or some other non-binary marker. How that will be resolved by a judge is likely to be determined on a case-by-case basis until there is some guidance from our appellate courts.

And, finally, in some cases, the docket containing the petitioner's current name and gender may be posted on the courtroom door. Because the identity docket tends to be done as a "cattle call," chances are good that others who are waiting for the docket will see the incongruence of the name of the docket and the appearance of the petitioner seeking an identity change. In the courtroom, the judge or the clerk may call out the current name or type of identity change sought. This may cause grave discomfort for the petitioner, so it would be wise to know in advance how the docket is handled. A prepared client is a more satisfied client.


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