New Rule Governs Judicial Declarations Of Gender Identity

David V. Diggs

The Maryland Rules of Procedure govern the practice of law and procedure followed by the state courts in Maryland. Title 2 and 3 of the Maryland Rules of Procedure govern civil procedure, Title 4 governs criminal procedure, Title 5 governs evidence, and so on. Title 15 governs “other special proceedings,” including topics as diverse as arbitration, contempt and mandamus (a judicial writ issued as a command to an inferior court or ordering a person to perform a public or statutory duty), not to be confused with Mundungus Fletcher (the shifty “Harry Potter” character).

And if you were born with the name Mundungus, wouldn’t you want to change your name? Middle-schoolers would have a ball with that name, which means “foul-smelling tobacco.” Fortunately for any Mundunguses among us, Rule 15-901 provides the rules and procedure for changing one’s name.

However, for a person who has changed his or her gender identity, there are no rules or standard procedure for changing one’s gender marker. This year, the proposed Rule 15-902 creates a new “action for judicial declaration of gender identity.” The need for this rule arose out of cases where transgender and gender nonconforming individuals have petitioned the courts for a judicial determination allowing such a change. Maryland courts have equitable power to issue a declaration of gender identity for an individual, and they do rule on these petitions. See In re Heilig, 372 Md. 692 (2003) and In re K.L., 252 Md. App. 148, 258 A.3d 932 (2021). “Under certain circumstances, a judicial determination of gender identity may be necessary to change an individual’s gender identity in legal, administrative, and other contexts.” See committee note to proposed Rule 15-902(a).

For example, a transgender individual who still has their birth name and biological sex on their driver’s license or government ID faces embarrassment and humiliation anytime they present their identification card. Such an individual is involuntarily revealing their transgender status anytime they apply for a job, go to a health care provider, get carded at a bar, apply for a passport, etc. For those individuals, their mental health and physical safety is at risk.

Modeled after Rule 15-901, Proposed Rule 15-902 addresses the applicability of the rule, the appropriate venue (where to file), the contents of the petition, the supporting documents, provisions related to minors, and the conditions for holding a hearing. Proposed Rule 15-902 was approved by the Standing Committee on Rules of Practice and Procedure on March 11, 2022, with some amendments. When it is finalized, it will be submitted to the Court of Appeals for approval. It remains unclear when Proposed Rule 15-902 will go into effect, but it should be in the not-too-distant future.

Should you or a loved one need assistance with a name change or a declaration of gender identity, you will have questions. You should consult an attorney familiar with this area of the law who can assist you in making informed decisions. David V. Diggs is experienced in all aspects of family law. If you need further information, contact The Law Office of David V. Diggs LLC, located at 8684 Veterans Highway, Suite 302, in Millersville. Call 410-244-1189 or email david@diggslaw.com.