LAFAYETTE, Ind. (AP) – Indiana’s birth certificates discriminate against gay married couples and their children because they don’t account for both spouses being the same gender, a federal lawsuit filed Friday says.
The complaint filed in U.S. District Court in Indianapolis challenges how state law defines “born in wedlock” and “born out of wedlock,” saying it violates the equal protection and due process clauses of the 14th Amendment.
Ashlee and Ruby Henderson of Lafayette told the Journal & Courier that when they asked to have both of their names on the birth certificate of their son, the Tippecanoe County Health Department replied they could not under Indiana code. Ruby Henderson was listed as the mother.
“Not without a court order, they told us, even though we were legally married,” Ashlee Henderson said. “If that’s what it takes, I guess.”
The lawsuit says the birth certificate defines their son, listed in the lawsuit by his initials, L.W.C.H., as born out of wedlock Dec. 22 “because by statute, he was not born to a woman married to a man but instead was born to a woman married to another woman, despite the fact that Indiana now recognizes same-sex marriage.” The Hendersons were married in November.
“That birth certificate is the first step in telling your story,” said Karen Celestino-Horseman, the Indianapolis attorney representing the Hendersons and their son. “Parents make hundreds of decisions on behalf of their children every day, from the first day. If you don’t have some sort of legal relationship that’s recognized, you can’t do any of that.”
As things stand now, the only way for Ashlee Henderson to establish that is through an adoption.
“We could just do that,” Ashlee Henderson said. “But we don’t understand why we’d have to. We’re married. Indiana says so. Why do we have to do more than that?”
Tippecanoe County Health Department Administrator Craig Rich said the agency consulted its counterparts in other counties and the Indiana State Department of Health.
“Basically, the same-sex ruling doesn’t really change the way a birth record is done, because birth certificates all have to do with biological parents,” Rich said. “Again, we’re just following Indiana Code. We understand and we sympathize, but current rules are as it is.”
The lawsuit names as defendants Indiana Health Commissioner Dr. Jerome Adams and Tippecanoe County health officials.
“We might have to take a little different look at what the current statutes indicate,” said Randy Vonderheide, an attorney for the Tippecanoe County Health Department.
A spokesman for the Indiana Attorney General’s Office said it is reviewing the lawsuit.
The Iowa Supreme Court ruled in 2013 that parents in same-sex marriages must be allowed to list the names of both parents on a birth certificate. Iowa legalized same-sex marriages in 2009.
The Virginia Department of Health sent letters to hospitals last month saying that forms were being updated to allow two female spouses to be listed on a birth certificate when one is the birth mother. Same-sex marriage became legal in Virginia in October.
Chris Paulsen, a spokeswoman for Indiana Equality Action, which is helping to cover legal expenses for the Hendersons, said she believes their case is the first of its kind in Indiana.