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NY Judge Orders Confidentiality for Transgender Professional

Posted on: June 4th, 2013 by Art Leonard No Comments

Ruling on an issue that he characterized as “apparently one of national first impression,” New York Supreme Court Justice Sam D. Walker (Westchester County) ordered the New York State Education Department, which administers the system of professional licensing throughout the state, to “issue a new professional license and license number to Jane Doe and to conceal from the public any cross reference to the prior license held by John Doe,” as well as prohibiting the Department “from making available for public inspection or copying all records relating to the prior identity of Jane Doe, her name change or any references or cross references to her old license including this Court order and all related correspondence between petitioner, his counsel and the New York State Education Department.”  Justice Walker also ordered that the record of the court proceeding be sealed, only to be opened by court order “for good cause shown or at the request of Jane Doe.”  Matter of John Doe, NYLJ 1202601879249 (N.Y. Supreme Ct., Westchester Co., May 16, 2013).

The court’s opinion, published on-line by the New York Law Journal on June 3, addresses a rarely discussed side-effect of gender transition: the difficulties that a transgender person may encounter while trying to continue her professional career with her newly-achieved gender recognition. 

In keeping with the need for confidentiality, Justice Walker’s opinion does not specify what professional license is at issue, only to relate that the petitioner’s profession involves interaction with construction contractors and workers in the construction trades, so one speculates that she may be an architect.  In any event, after already being launched on a professional career, the petitioner underwent gender transition from male to female and obtained a court order changing her name on August 2, 2012.  She then applied to the State Education Department to have her professional license reissued under a new number in her new name, and to have her old license and all references to it eliminated from the Department’s records.  The Department denied her request, asserting that to grant it would undermine the Department’s charge to “protect the public who have a right to determine the credentials and/or disciplinary history of individuals who may provide or have provided professional services to them.”

In an affidavit accompanying her petition to the court, Doe alleges that “she may be placed in danger or subject to harassment, threats, bullying or other forms of discrimination if the record of her new license number is connected to her previous license number and thereby [create] a public record of her transgender status.”  Justice Walker found, contrary to the Department’s allegations, that this was not just a “generalized risk to gay, lesbian, bisexual and transgendered people,” as asserted by the Department, which had insisted that it could not respond affirmatively to Doe’s petition without evidence of “a threat of harm to her personally.”  Instead, he took “judicial notice of the continuing increase in reports of violence against lesbian, gay, bisexual and transgender people.”  Certainly the recent rash of anti-gay attacks in New York City support such judicial notice. 

Walker took note of the inclusion of gender identity in the 2009 enactment of amendments to the federal hate crimes statute, which responded to extensive documentation of anti-transgender violence presented to Congress.  He also noted statistics from the National Anti-Violence Project documenting the high percentage of transgender people who have experienced harassment, attacks, assaults, and exclusion from places of public accommodation and workplaces.  Doe alleged that her transgender status was not known in her current workplace, and she wanted to keep it that way due to the nature of her work and the clients she served.  She pointed out that in the course of her work “she is exposed on a daily basis to crude comments, bigoted jokes and intolerance towards the transgender.”  She also alleged that outside of work she had been targeted in several specific incidents.  She told the court that “she is fearful of the thought that her life would be ‘turned upside down'” were her colleagues at work to “become aware of her status.”

In light of this, the court found the concerns expressed by the Department to be insufficient to reject Doe’s petition.  “NYSED does not suggest or indicate that petitioner has any record of disciplinary actions or professional misconduct associated with the prior license,” he wrote, “or that there is any deficiency with respect to petitioner’s past or present professional credentials.  This court must conclude that any potential harm to the public that NYSED proposes to prevent, is not a real issue with respect to the instant application.”

Clearly, the court would support the Department’s position if the petitioner were seeking to cover up or make inaccessible records of past disciplinary actions or professional misconduct, so the ruling was in response to the particular case, not a sweeping mandate that all such petitions be granted in the future.  Nonetheless, it marks a sensitive response to a difficult issue — much more sensitive than some cases noted in the past where, for example, educational institutions have balked at issuing new diplomas and transcripts reflecting the changed name and gender identity of their graduates.  In this connection, it is interesting to note a recent news story about the Pentagon recognizing the changed gender of a veteran for purposes of official service records.  Justice Walker’s opinion is further evidence of changing public attitudes towards acceptance and understanding of transgender individuals.