A transgender state inmate confined in Chemung County is entitled to a legal name change, ruled the New York Appellate Division, 3rd Department, on May 31. The unanimous five-judge panel reversed an order that Chemung County Supreme Court Justice Judith F. O'Shea issued on August 29, 2011, in which she denied Jhirard Tahiem Powell's petition for a name change to Shaniece Nyasia Powell. In re Powell, 2012 WL 1948170.
According to the opinion for the Appellate Division by Justice Thomas E. Mercure, Powell "was born male but self-identifies as female." Although none of the parties who were required to be notified of the name-change petition had raised any objection, Justice O'Shea denied it nonetheless, "on the grounds that the risk of confusion and deception was high, and there was no evidence demonstrating that 'petitioner … has undergone sex-reassignment surgery.'"
Justice Mercure observed, "A court's authority to review an application for a name change is limited." Indeed, by statute in New York, the court "shall" authorize the name change unless there is some "reasonable objection to the change of named proposed." (Civil Rights Law sec. 63.) Thus, in this case, Powell's petition should have been granted unless there was "a demonstrable reason" that made it necessary to be denied.
The court found the grounds that Justice O'Shea articulated to be "insufficient to warrant denial." First, said the court, "any change of name" will involve some confusion. "Nor is the lack of medical evidence relevant," wrote Justice Mercure, "inasmuch as petitioner seeks only to assume a different name, not a declaration of gender change from male to female." Furthermore, wrote Justice Mercure, "The law does not distinguish between masculine and feminine names, which are a matter of social tradition," quoting from Matter of Guido, 1 Misc. 3d 825 (2003). Since Powell had, as required by statute, notified the prosecutor, the sentencing court, and the Department of Corrections about his petition, none of whom had objected to the name change, the petition should have been granted in the absence of "any indication of fraud, misrepresentation or intent to interfere with others' rights."
Interestingly, Justice Mercure was also the author of the opinion issued on the same date holding that falsely calling somebody gay is no longer "slander per se" under New York Law.
The Sylvia Rivera Law Project, which provides legal representation to transgender individuals, represented Powell in appealing Justice O'Shea's ruling to the Appellate Division. Chase Strangio was counsel of record for Powell.