October 3, 2017

Proceedings To Change Transgender Man’s Name Should Be Sealed; In re the Name Change of A.L.

Category: Indiana Law Review | Author: | Share:

Courts proceedings are generally open to the public. And this applies both to the written record and the live proceedings. But sometimes, it is best that the proceedings be sealed. At issue here is whether the name change for a transgender man falls into one of those exceptions.

A.L. and L.S. are transgender men. They each petitioned to change his name and legal gender marker. The trial court ordered A.L. to publish his change of gender marker over A.L.’s objections. The trial court found that A.L. was acting in good faith and without an intent to defraud. It nevertheless denied A.L.’s petition because of the lack of publication.

L.S. had a similar experience with the same judge. His petition included a request that the proceeding be sealed. The trial court denied the petition and ordered that L.S. publish his intent to change his name and gender marker. In doing so, it also found that L.S. was acting in good faith and without an intent to defraud. Both A.L. and L.S. appealed.

On appeal, the Court addressed the publication of the change in A.L.’s and L.S.’s gender marker first. It noted that “[t]here is no statute or rule requiring that an individual seeking a gender marker change publish notice of that intent,” so while this is similar to a name change, the statutory requirements are different.

It was erroneous to create a requirement where none exists. Unless and until the General Assembly crafts specific requirements regarding gender marker changes, this Court’s common sense standard in Birth Certificate is the bar that must be met. Thus, a gender marker change petitioner needs to establish that the petition is made in good faith and not for a fraudulent or unlawful purpose. If a trial court determines that the petitioner has met that standard, no further requirements need to be met and the petition should be granted.

Both A.L. and L.S. met this test, so the trial court erred when it denied their petitions because they did not publish their intent to change their gender markers.

The same rationale would not apply to L.S.’s name change request, as there is a statutory requirement for publication. Therefore, the Court examined whether Administrative Rule 9 provided a basis to seal L.S.’s name-change record. In support of his request, L.S. presented evidence which would apply to many transgender people:

  • Transgender individuals are disproportionately subject to violence and homicide.

  • LGBT people are more likely than any other minority group to experience hate crimes in the United States.

  • In 2016, twenty-six transgender individuals were murdered in the United States.

  • A survey of transgender people in Indiana revealed that 74% of respondents experienced harassment or mistreatment on the job; 73% reported harassment in their elementary, middle, and high schools; and 27% reported physical assault.

  • S. is “aware of the high rates of violence against transgender people in Indiana and nationwide” and fears that he “will experience threats and actual violence if the record of [his] Change of Name and Gender is public.”

  • S. has personally “witnessed a person, friend of mine, male to female  transgender individual, a person get out of the car and come and grab her by her hair and shoved her face into the sidewalk, and uh, you know, hitting her. I mean blood . . . .”

  • S. has experienced discrimination because of his transgender identity, testifying that he lost an internship opportunity because the interviewer discovered that the way in which L.S. was identified by Social Security did not “match” with how he appeared.

  • S. testified that he believes that if information about his transgender status became public, he would be “at great risk for potential harm. . . . I mean it could be anything. I – I  – I uh, violence, death, you know, it just depends on who – who  gets a hold of me you know.”

The trial court found that while this evidence showed that the transgender community is “disproportionately targeted for violence,” it did not show that L.S. himself faced immediate risk if the proceeding was not sealed. The Court of Appeals disagreed.

L.S. provided evidence that, as an out member of the transgender community, he would face a significantly higher risk of violence, harassment, and homicide. He has personally witnessed a transgender friend being violently assaulted because of her gender identity. He has personally experienced discrimination in the workplace after a discrepancy between the way he looked and the way he was identified by Social Security outed him as a transgender individual. Publication of his birth name and new name would enable members of the general public to seek him out, placing him at a significant risk of harm. And in today’s day and age, information that is published in a newspaper is likely to be published on the Internet, where it will remain in perpetuity, leaving L.S. at risk for the rest of his life.

The Court found that this was sufficient to demonstrate the significant risk of substantial harm necessary to trigger sealing the record under Administrative Rule 9. The trial court’s decision was reversed.

Lessons:

  1. Until there is a statutory change, there is no requirement that a request for a gender marker change be publicized.
  2. Most transgender people should be able to receive a name change in Indiana without publication.