Does a judge have the authority to change a person’s gender identity under existing state law?

In 2016, an Ogden judge said no to that question — and that’s why on Monday it landed before the Utah Supreme Court, which has been asked to overturn rulings by 2nd District Judge Noel Hyde that left Angie Rice and Sean Childers-Gray in a mismatched legal limbo.

Both have documents — driver licenses and insurance cards, for example — that bear the new names they chose to reflect their gender identities, but the papers still list the sex designations that were assigned to them at birth.

Hyde allowed for name changes, but he said a lack of clarity in state law precludes him from granting gender identity changes.

He’s wrong, contends Christopher Wharton, the attorney who represents Rice and Childers-Gray.

State laws that reference sex changes, name changes and gender identity, along with the inherent discretion that judges posses, leave more than enough room for granting the petitions, he said.

(Steve Griffin | The Salt Lake Tribune) Angie Rice and Sean Childers-Grey stand after the Utah Supreme Court listens to attorney Chris Wharton as he presented oral arguments about whether an Ogden judge erred when he denied Rice and Childers-Gray gender marker changes, even though he allowed them to change their names. The case is not being challenged by the state. The court heard the arguments in the Matheson Courthouse in Salt Lake City Monday January 8, 2018.

“I would ask that this court recognize the Legislature’s intent in the statutes and dignify the need for congruity between vital records and a person’s actual reality,” Wharton said Monday during a lengthy argument before the court.

Hyde’s 2016 denials are believed to be the first issued in Utah, according to Wharton, who has successfully represented clients in more than 30 other such cases.

Hyde’s rulings were followed in 2017 with a similar decision by 3rd District Judge Bruce Lubeck, who denied a petition filed by the parents of a then-17-year-old transgender girl. An appeal in that case is on hold until after a ruling from Utah’s high court in the Rice/Childers-Gray case.

The questions from justices had three main focuses Monday: how gender marker petitions are handled in other states, how they have been handled in Utah and whether the absence of an opposing party in the appeal presents a problem for deciding the case.

Wharton’s answers: In every state but New York, name and gender identity changes are handled in the courts. And in Utah, judges statewide have granted the petitions under “common law authority.”

(Steve Griffin | The Salt Lake Tribune) The Utah Supreme Court listens to attorney Chris Wharton as he presents oral arguments about whether an Ogden judge erred when he denied two transgender Utahns gender marker changes, even though he allowed them to change their names. The case is not being challenged by the state. The court heard the arguments in the Matheson Courthouse in Salt Lake City Monday January 8, 2018.

Those decisions, he said in court papers and on Monday, are based on the same criteria applied in name change petitions, including that the individuals are not seeking the change for wrongful or fraudulent purposes.

(Steve Griffin | The Salt Lake Tribune) The Utah Supreme Court listens to attorney Chris Wharton as he presents oral arguments about whether an Ogden judge erred when he denied two transgender Utahns gender marker changes, even though he allowed them to change their names. The case is not being challenged by the state. The court heard the arguments in the Matheson Courthouse in Salt Lake City Monday January 8, 2018.

Support for the petitions can also be found in laws that guide the state registrar to grant amended birth certificates after court-approved medical sex changes and fair-housing laws that define gender identity.

Utah’s 2015 nondiscrimination law also provides judges with statutory guidance because it defines gender identity, he said.

Justice Thomas Lee questioned whether the petitions should be first handled by a state agency, such as the health or vital statistics departments, instead of the courts.

No, Wharton countered. State agencies lack the authority to decide questions of common law and fairness that have been assigned to the courts since Utah’s statehood.

Lee seemed most troubled by one thing Monday: No one appeared to argue against Wharton’s position.

(Steve Griffin | The Salt Lake Tribune) Utah Supreme Court Associate Chief Justice Thomas Lee asks a question of attorney Chris Wharton as he presents oral arguments about whether an Ogden judge erred when he denied two transgender Utahns gender marker changes, even though he allowed them to change their names. The case is not being challenged by the state. The court heard the arguments in the Matheson Courthouse in Salt Lake City Monday January 8, 2018.

“These are important problems that you’re calling to our attention,” Lee said, “but wouldn’t a decision of this court in this brand new frontier be better informed by an adversary party?”

The Utah attorney general’s office was specifically asked by justices in September to provide an opinion in the case, but the office declined, Wharton noted.

In court papers, the state explained its refusal, saying the case does not challenge the constitutionality of relevant Utah law or propose a reading of state law that would require sex reassignment surgery and introduce an equal-protection problem. A brief from the office could only address a hypothetical, court papers say, and delay the proceedings.

“I get there is a downside in not having an opposing position,” Wharton told the court, “but I think it’s noteworthy that the majority of these petitions have been unopposed because this is a policy that is working in Utah.”

After the hearing, Rice, who when living as a man flew Air Force rescue helicopters and refueler planes over combat zones for 20 years, said a ruling in their favor would solve myriad practical, legal and psychological issues for transgender Utahns — both those who have suffered for decades and young people just beginning to understand who they are.

“I think it will be a close vote,” said Rice, now a special education teacher in Morgan who has been married to her spouse for nearly 30 years. “I think [the case] brings to light that the standard ought not to be political or theological; it’s a life issue and a civil issue to us, and that standard should not be different based on where you live or what judge you get to see.”

Childers-Gray, an associate dean of graphic arts for an online college who was once known as Jenny Sean Pace, said he believes he and Rice were chosen to fight this fight for other transgender people.

And if justices say no?

“We won’t stop fighting,” he said. “We go until we can’t go anymore.”