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New Jersey Court Grants Name Change to Trans Teen in Case of “First Impression”

Posted on: July 1st, 2017 by Art Leonard No Comments

In what the court characterized as a matter of “first impression in this state,” New Jersey Superior Court Judge Marcia Silva granted a transgender teenager a change of name from Veronica to Trevor on March 17. “At the parties’ request,” wrote Judge Silva, “this court has used the parties’ real names.  It was also Trevor’s desire that his name be used in this opinion.”  The opinion was approved for publication on June 28.  The case is Sacklow v. Betts, 2017 N.J. Super. LEXIS 85, 2017 WL 2797437 (Middlesex County).

While this may have been a case of first impression in New Jersey in terms of published court opinions, Trevor is not the first transgender minor to get a court-approved name change. Gavin Grimm, a transgender boy from Virginia whose lawsuit against his school district to gain appropriate restroom access is still pending before the federal appeals court in Richmond even though he recently graduated from Gloucester County High School, received a legal name change, as have some other transgender teens who are involved in litigation against their schools.

The case was originally contested. Trevor’s parents were divorced in 2011 and have joint custody, although Trevor lives with his mother, Janet Sacklow.  His father, Richard Betts, consented to Trevor beginning hormone treatments in 2014, first to suppress menstruation and then, in 2016, testosterone to begin masculinizing his body.  However, Richard was opposed to the name change.  Janet filed the petition seeking the name change on Trevor’s behalf on September 12, 2016, naming Richard as the defendant.  He did not drop his opposition until after he heard Trevor testify during a hearing on March 7.

The biggest issue for Judge Silva was whether the court had any judgment to exercise in this case once the consent of both parents had been obtained. When an adult petitions for a name change, New Jersey law dictates that the court should grant the change unless there is some public interest in denying it, usually based on a finding that it is being done to perpetrate a fraud on creditors or to avoid criminal prosecution.  Unless one of those complicating factors is present, the court is normally not required to make any finding as to whether the name change is in the best interest of the applicant.

A quarter-century ago, in the case of Matter of Eck, 245 N.J. Super. 220 (App. Div. 1991), a New Jersey trial judge refused to grant a transgender adult’s petition for a name change, holding that “it is inherently fraudulent for a person who is physically a male to assume an obviously ‘female’ name for the sole purpose of representing himself to future employers and society as a female.” The Appellate Division reversed this ruling, stating that “a person has a right to a name change whether he or she has undergone or intends to undergo a sex change through surgery, has received hormonal injections to induce physical change, is a transvestite, or simply wants to change from a traditional ‘male’ first name to one traditionally ‘female’ or vice versa.”  In other words, where an adult is concerned, the court has limited discretion to deny a name change, and in New Jersey, at least since 1991, it has been established that a name change to accord with gender identity is not deemed fraudulent as such.

The issue for minors is different, Judge Silva explained. There is a statute governing name changes for minors that has some factual inquiries as prerequisites similar to those governing adults, which did not seem to apply in Trevor’s case.  “It is uncontested,” wrote Silva, “that Trevor is not doing this with the purpose to defraud creditors or avoid criminal prosecution nor has Trevor ever been involved with the criminal justice system.”

But most name change petitions for minors involve situations where the parents are divorcing and the mother, who may have primary residential custody, is planning to assume her maiden name and wants her child to have the same last name as her. In such cases, where the father may be opposed, the court has to referee the situation by figuring out whether it is in the child’s best interest for a change of surname, and in a 1995 case a New Jersey court set out a list of factors to consider in such a case.  Of course, the decision to change a given name to reflect gender identity presents different issues, but Judge Silva concluded that in light of the court’s role as a guardian of the interests of children (referred to in the law as parens patriae) “the best interest of the child standard should apply,” while acknowledging that although the cases involving surnames “provide some guidance to this court, they do not fully address whether the proposed name change is in Trevor’s best interest.”

Judge Silva specified the following factors that she would consider in Trevor’s case: his age, how long he has used the name Trevor, “any potential anxiety, embarrassment or discomfort that may result from the child having a name he or she believes does not match his or her outward appearance and gender identity,” the history of Trevor’s medical or mental health counseling, the name by which he is known in his family, school and community, his preference and motivation for seeking the name change, and whether his parents have given consent.

In this case, the court concluded that all these factors supported a finding that it was in Trevor’s best interest to approve the name change. Trevor had been considered a “quintessential tomboy” by his parents due to his lack of interest in typical girl activities as a youth, and they noticed when he entered the sixth grade “a change in his behavior” that led them to seek counseling for him, first with a child study team at school and then with a clinical social worker.  Ultimately Trevor announced his male gender identity to his parents and his desire to be called Trevor.  His gender dysphoria was diagnosed by a psychologist who continues to work with him through his transition.  Trevor testified that “the only people that still call him Veronica are his father, his stepmother and step-siblings” and that “he feels that the name [Trevor] better represents who he is and the gender with which he identifies.”

While noting the “constant changes that have occurred in the legal landscape as it relates to gender identity, sexual orientation and similar issues,” Silva wrote, “the issue of whether a transgender minor child should be permitted to change his or her name to better match his or her gender identity is a novel one for this court.” She pointed out that if Trevor had waited until his 18th birthday, the issue would be simpler.  Parental approval would not be required.  “However, children are unable to make such decisions on their own unless they have been emancipated.”

Judge Silva observed that the legislature has declared that the state “has a compelling interest in protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual, and transgender youth” and, she wrote, “recognizing the importance of a name change is one of the ways to help protect the well-being of a transgender minor child. The name change allows the transgender minor child to begin to fully transition into their chosen gender and possibly prevent them from facing harassment and embarrassment from being forced to use a legal name that may no longer match his or her gender identity.”

One practical reason why Trevor wanted the change now was because, as he was about to turn 17, he would be applying for a driver’s license and applying to colleges. He was planning this summer to travel to China and would be getting a passport.  It was important, now that he is living as a boy, for him to be able to get these official documents with an appropriate name matching his identity, and a legal name change was needed to use this name on official documents.  Judge Silva counted this motivation in favor of granting the application.

The judge concluded, “Trevor has undergone hormone therapy and presents as a young man with facial hair, a muscular build, a head full of male-textured hair, and a deeper voice. To force him to legally keep the feminine name ‘Veronica’ would not be in his best interest.  Therefore, plaintiff’s motion to legally change Veronica’s name to Trevor is granted.”  Trevor was not seeking to change his surname, and will henceforth be known as Trevor Adam Betts.

Often transgender people seek an exemption from the legal requirement that court-ordered name changes be published in a newspaper of public record, but Trevor was not seeking such an exemption.   “Given the parties’ request that their real names be used in this decision, and the fact that Trevor is the subject of a documentary, this court does not find it necessary to protect his identity and thus will order plaintiff to comply with the publication and filing requirements.”

Trevor and his mother were represented in this proceeding by Jennifer Weisberg Millner of the firm Fox Rothschild LLP.

Formalistic Texas Appeals Court Refuses to Issue a Change of “Sexual Designation” for Transgender Petitioner

Posted on: August 16th, 2016 by Art Leonard No Comments

The Texas 14th District Court of Appeals in Houston upheld a trial judge’s denial of a transgender man’s request for a “gender designation change” embodied in a court order on August 2.  In re Rocher, 2016 WL 4131626, 2016 Tex. App. LEXIS 8266.  The court’s ruling turned on the absence of any Texas statute or regulation specifically authorizing courts to grant such requests.

According to the opinion for the three-judge panel by Justice Martha Hill Jamison, the petitioner, “formerly known as Aidyn Rocher,” filed an Original Petition for Change of Name of Adult in the Harris County District Court on January 28, 2015, almost exactly six months before the U.S. Supreme Court issued its marriage equality ruling of Obergefell v. Hodges.  At the time, same-sex marriage was not available in Texas, so a sexual designation would be important for somebody who sought to get married.  The Petition in this case sought not only a legal change of name to Alex Winston Hunter, but also a change of “sexual designation” from female to male.  The petitioner was represented by a lawyer, who is not named in the court’s opinion.

The lawyer presented two prior Texas court opinions to the trial judge to support the request for the change: In re Estate of Araguz, 443 S.W.3d 233 (Tex. App. 2014 – petition for review denied), and In re N.I.V.S., 2015 WL 1120913 (2015).  Then Hunter testified briefly, with all the testimony relating to the name change request, satisfying the requirement that the court make findings about the date and place of birth, the lack of a felony criminal record (felons may not legally change their names in Texas), and evidence that a name change is not being sought to evade creditors.  At the end of the hearing, petitioner’s lawyer pointed out to the court that under the Texas Family Code “proof of an order relating to a sex change could be used to prove identity for purposes of an application for a marriage license.”  At the end of the hearing, the trial judge granted the name change but denied the request for a “change in gender designation,” finding that there was no specific authority under Texas law authorizing a court to make such a change in designation.

Texas, in common with most (but not all) states, has a statutory procedure for changing the gender designation on a birth certificate. The petitioner in this case, however, was born in Pennsylvania, and Texas courts have no authority to order another state to issue a new birth certificate.  Furthermore, Texas law does not authorize issuance of a birth certificate for somebody who was not born in Texas.  The petitioner could try to get a new birth certificate from Pennsylvania, but he argued that this would be unduly burdensome, and that since Texas law does, in a broad sense, recognize the reality of gender transition by allowing such changes on birth certificates, the court should be able to issue such a declaration in the context of a name-change case.

The court discounted the precedential value of the cases that petitioner’s lawyer had presented. In Araguz, the court was dealing with a dispute about inheritance rights of a transgender woman who had married a Texas man, and the court of appeals had concluded, citing a Texas statute authorizing county clerks to accept a copy of a “court order relating to the applicant’s name change or sex change” in processing a marriage license application, that “Texas law recognizes that an individual who has had a ‘sex change’ is eligible to marry a person of the opposite sex.”  But, wrote Justice Jamison, “The Araguz court did not, however, suggest that the section authorized a trial court to order a change in a person’s gender designation.”  In the other case, N.I.V.S., although the court of appeals had noted that “one of the parties had ‘obtained a court order changing his identity from female to male,’” citing the same section of the marriage statute, the court in that case had stated, “because it is not necessary to the disposition of this appeal, we do not comment on the effect, if any, of such an order.”

Thus, although some past Texas court opinions had intimated that court might, or actually had, issued orders recognizing changes of sex designation, this court found that none of those cases directly answered the question whether a Texas court has authority to do such a thing, and this panel of judges was unwilling to take that step without some direct prior precedent or statutory authorization.

The petitioner had also argued on appeal that in light of Obergefell, it would be unconstitutional for the courts of Texas to refuse to issue such an order if presented with appropriate evidence.  Unfortunately, however, the trial hearing took place before Obergefell, so this claim had not been presented to the trial court, and appeals courts generally refuse to consider arguments that were not raised at trial and thus “preserved” for review.  A good argument can be made that the Supreme Court’s commentary in that case, and in the prior cases of Lawrence v. Texas and United States v. Windsor, would support a claim that the liberty protected by the Due Process Clause of the 14th Amendment would include a right of self-determination in matters of gender identity, as a matter of respect for individual dignity.  But this court ruled out any consideration of that argument.

Indeed, in a footnote the court also stated that because it had found lacking any authority to issue such an order, it “need not in this case take any position regarding what type of evidence could suffice to demonstrate a gender change.” This is a much-contested issue in other jurisdictions, especially focusing on whether and the degree to which a transgender person must undergo surgical alteration before they can claim to have transitioned sufficiently to change their sex for legal purposes.

Of course, after Obergefell it is unnecessary for a transgender person to get a legal designation of sex in order to marry the person with whom they are in love, because the gender of the parties has been rendered irrelevant.  But sex still matters for other purposes, and particularly for legal identification documents such as driver’s licenses and voter identification card for non-drivers, so the unavailability of a mechanism in Texas for transgender residents born in other jurisdictions to obtain such a declaration from a Texas court is another unnecessary stumbling block to getting on with one’s life.

Many years ago, a more empathetic court, the Maryland Court of Appeals, ruled in In re Heilig (2003) that a Maryland trial court could draw upon its general equitable powers to declare a change of sex designation for a transgender applicant who was born, coincidentally, in Pennsylvania.  And, interestingly, as of August 8, 2016, new regulations in Pennsylvania allow a transgender person born in that state to obtain a new birth certificate by providing certain documentation to the Health Department, including a declaration under oath by a doctor that the individual has received appropriate clinical treatment to be considered male or female, as the case may be, without getting into specifics.  The necessary information is easily available on several websites.  So the petitioner in this case can download the necessary forms and obtain a new birth certificate from Pennsylvania with minimal expense and fuss.  Unfortunately, not every state is so accommodating, and some still refuse to issue new birth certificates for this purpose.