In name change hearing, judge asked trans teen about sexuality, bathrooms, Caitlyn Jenner: Lawsuit

The lawsuit was filed in federal court on August 3.

When Leigh Whitaker's child decided to transition during the summer after 8th grade, there was so much to think about, she said.

How would the 13-year-old make the change at school? How would his peers react? How could his parents best support him while coming to terms with his new identity themselves?

"I have always been supportive of people being who they think they should be, of people being who they are," Whitaker told ABC News.

"But when it's your own child, there are other things to consider," Whitaker continued, "Is it the right decision? Are we going too fast? Are we going too slow? What's best for their mental health? Just so many decisions. It was a lot, a lot, to deal with."

One of those decisions was whether to petition to legally change their son's name to Elliott, his chosen name. On June 18, when the family appeared before Judge Joseph W. Kirby in the Warren County Court of Common Pleas regarding that petition, the experience was decidedly different from what they had expected, Whitaker said.

Kirby ultimately denied the petition for a legal name change.

"We went in there just expecting it would be a formality, like record-keeping, but it felt like an interrogation as to whether we were making the right decision for our child," Whitaker said.

"It was such a hard decision for us to come to, it just felt disrespectful of all the time that we spent agonizing over this decision, and then it felt like we were just dismissed out of hand after 20 minutes of questioning."

Kirby declined through a spokesperson to comment on the case, but stressed in his ruling that "the court isn’t saying 'no' to the name change. The court is simply saying 'not yet.’ "

When Elliott was diagnosed with gender dysphoria, his family -- who live in Mason, Ohio -- worked with his therapist and doctor to determine what was best for him. Whitaker said she also started seeing a therapist herself to "try to figure out how to be supportive," even as she grieved the loss of Elliott's old identity.

"It was a slow transition on our part as well as his, coming to accept the reality of the situation," Whitaker said. "I have to be honest that my husband and I did push back, at first, because we wanted to be sure. It's not that we didn't believe our child, it's just that we felt, 'let's be 100 percent sure that this is the right thing to do.'"

Finally, the family felt ready to help Elliott transition. Whitaker said that it was decided that he would start high school in the fall of 2016 with his new gender identity and be called by his new name, which he had been using with friends for months.

In April of this year, the family filed a court petition to legally change the teen's name to Elliott, a process Whitaker thought would be a rubber-stamp procedure in the local juvenile court. The hearing took place on June 18.

In Kirby's written decision rejecting the teenager's petition to change his name, issued four days later, the judge wrote, in part: "The court is sympathetic to the parents of the child and their desire to assuage their child. In essence, the court isn’t saying 'no' to the name change. The court is simply saying 'not yet.' Age. Develop. Mature. And take advantage of your common-law right to use the name you are petitioning for in the meantime, so long as it's not for fraudulent purposes."

"Then," the judge concluded, "ask this Court again once you become an adult."

Under Ohio law, a child's best interest must be considered before the court can approve a minor's name change, the complaint states. Now, Kirby is facing a lawsuit that alleges he has "a pattern and practice of treating name change requests from transgender adolescents differently than other name change requests," according to court documents.

Kirby has denied all three name change requests for transgender minors that have personally come before him in 2018, according to the complaint, but has granted six name change requests from transgender adults over the same period. A magistrate in the same courthouse granted one transgender minor's name change request in February.

A Warren County Court official said Kirby is not able to comment on the lawsuit, citing the state's code of judicial conduct.

Yet Whitaker, plaintiff Jennifer Shaul and a third, unnamed plaintiff known as Jane Doe all claim in their suit that Kirby has demonstrated "animosity towards transgender adolescents seeking a name change without any rational basis." They also argue that Kirby has ignored "evidence presented by the parties from medical professionals suggesting that the name change is in the best interest of the child," according to the complaint.

During a July 18 court hearing, the younger Whitaker told the court that "the school can’t change my name in, um, the system like on their computers, and, so without it being like legally changed."

"So all the substitutes get the old list where my name is my birth name and, just all legal documents, and prescriptions and everything has to have my birth name on it."

His mother said that these issues take a psychological toll.

"Elliott's not a very outgoing kid," she said. "I think if it were up to him, he would fade into the wall if he could in most cases.

"And it feels like everybody is staring at him, his stomach drops and he just feels sick," she continued. "It's an anxiety thing, and I could understand that."

A study published in the journal Pediatrics in March 2016 found that transgender children "who are supported in their gender identity" have low levels of depression and anxiety, suggesting that families who help support their children to live as the gender they identify with helps them live normal and healthy lives. Using the name that is consistent with that identity is an important part of that recognition and support, the study said.

In the complaint, the three plaintiffs make a similar argument.

"Transgender people denied the ability to change their names are deprived of significant control over the circumstances surrounding disclosure of their transgender identity, including when, where, how, and to whom their transgender identity is disclosed," the complaint reads.

"The ability to exercise control over the circumstances surrounding disclosure of their transgender identity ... is important because transgender people are often subjected to violence or harassment."

As Elliott prepares to apply for a driver's license and fill out college applications, his mother believes he should be able to use the name he identifies with in these new settings, too.

"It would be like if someone called you a nickname that you hated and refused to quit," Whitaker said. "We're not going to legally be able to put his preferred name on there, who he identifies with, his personal identity. And it just feels like it's been taken away from us."

Lawmakers in Ohio, where the lawsuit was filed, are also considering HB658, a bill that would require government entities, including schools, courts and hospitals, to "immediately" notify parents if a child displays signs of gender dysphoria or "demonstrates a desire to be treated in a manner opposite of the child's biological sex."

Transgender rights advocates have been fighting the bill, arguing that it would turn educators into "gender cops."

The case is about equal protection under the law, according to Josh Langdon, the attorney for the plaintiffs.

"The heart of this case is preventing irreparable harm to transgender teenagers," he told ABC News. "Basically, a name change is supposed to be a routine, rubber-stamp type of an action if everybody's in agreement. It's clear from the beginning that the court is treating these types of cases differently."

Langdon said Kirby has been hearing the cases of transgender minors himself rather than sending them to magistrates, which is more common.

Kirby was appointed to the Warren County Court of Common Pleas Probate/Juvenile Division by Ohio Gov. John Kasich in 2013.

The families also allege in their complaint that Kirby has "substituted his own archaic views" for the opinions of medical professionals, and claim that Kirby thinks that "the adolescents seeking a name change are motivated because they saw Caitlyn Jenner on television."

Kirby's questions about Jenner were especially confusing, Whitaker said.

"So a year and a half your parents knew -- and the world knew -- how long have you known?" Kirby asked the teenager in the July 18 hearing, according to a court transcript filed as part of the lawsuit.

"Um, there’s always been like a feeling of distress about it, like from as far back as I can remember, really," Elliott replied. "But then around when I learned that you can be transgender I, I kind of clicked, and you know, I was like, that’s what I was like upset about. That I wanted to be a boy but I couldn’t."

"That’s what I was referring to a couple years ago when it hit the papers," Kirby responded, according to the transcript, "and people were starting, they were identifying themselves or associating themselves with it. Uh, because it was not something that people were talking about."

Whitaker responded to the judge, according to the transcript, saying that "I guess that never struck me because I’ve known transgender people since I was a kid."

"But weren’t they just known as cross-dressers back then or did they actually go through the physical?" Kirby replied, according to the transcript.

"I, I, I just look at, Bruce Jenner set the stage nationally for it, maybe even ... all over the world. Um, but he hasn't done the physical part that I know of, physical change, well not all the way."

For her part, Caitlyn Jenner responded to Kirby's comments in a video posted to her Facebook page on July 18. She also addressed Elliott directly.

"It has come to my attention that a judge in Ohio thinks I'm brainwashing young kids into becoming trans," Jenner said in the video. "First of all, for me, being trans has been a great gift, it's been the most profound growing experience of my life."

"But we are in the thick of some very difficult, scary and dangerous times in our community, especially trans people of color," she continued. "Why anyone would choose to embark on a trans journey when they don't truly feel that way is beyond me.

“My coming out publicly wasn't to brainwash cisgender people, it was to let the mainstream world know, hey, we exist. We're here, and this isn't a mental illness,” Jenner said -- using a term that denotes a person whose sense of personal identity and gender corresponds with their birth sex.

"So I send a message to Elliott in Ohio: Your identity is real and we are behind you 100 percent to build a safer world," Jenner added.

Leigh Whitaker said the idea that her son would want to change his gender because of a celebrity is "condescending."

"It's very dismissive to think that it's just a fad that kids are seeing on TV," she said. "It's way more complicated -- no one is going to just decide they're going to be transgender just to be trendy, because it's a very difficult path to walk in life. It's not really a decision, you're born that way."

The other two plaintiffs in the lawsuit -- Jennifer Shaul and Jane Doe -- have not yet had Kirby rule on their teenage children's name-change petitions. A hearing for Shaul's son, James Shaul, has been set for August 14 with Judge Kirby, according to the complaint.

"Being a teenager is hard enough, but being a transgender teenager is a daily struggle," Jennifer Shaul told ABC News in a statement through her attorney. "A legal name change is usually a simple process, and it makes such a huge impact on transgender teens. A name change would be great for big things like a driver’s license, school forms, and medical forms.

"We just want our child to be treated like other non-transgender kids," Shaul continued in the statement. "Is this too much to ask? What parent doesn’t want to give their child the best environment and opportunities to thrive, grow up to be confident, feel valued, have a strong sense of worth, but most of all be mentally healthy?"

Jane Doe is the single parent of a 17-year-old trans teen referred to as John Doe in the complaint. She said is planning to file a petition to change her son's name, but is "fearful that she and her child will be subjected to an unfair and unconstitutional refusal to consider the name change application," according to the complaint.

"I hate that our kids are being put through so much hassle just to live," Jane Doe told ABC News in a statement through her attorney. "I hope this court case allows other kids to just 'be' without all these extra hoops. The name change should’ve been the simplest part."

Langdon, the plaintiff attorney, said he has filed a petition for a speedy trial in the hopes that these three teens can begin fully living their lives and recognized for who they are.

"As more transgender people come out, the legal system is going to see name changes, passport changes, gender marker changes on birth certificates, because more and more people are coming to terms with who they are at a younger age, just because of where we are as a society," he said.

"This is not a political thing for us, this is a very clear example of a judge discriminating against a group of people based on a certain classification," he added.

"When it's clear that transgender children are being treated differently from the beginning of the process all the way through the denial, there is something wrong."

Leigh Whitaker said she hopes the lawsuit allows Elliott to change his name and that it means that "other kids don't have to sit there and be interrogated like that in such an invasive way, that they can get their name changes as well to match their identities."

Whitaker also had advice for other parents grappling with how to best support their children in their transitions.

"My advice would be to listen to your child, love your child," she said.

"You feel like you're losing that child, but you're not. It's still the same child, it's just a little bit of a different package. They're still the same wonderful person they've always been."