Clerical Snags Stymie Name Changes For Trans New Yorkers

By Marco Poggio | September 8, 2023, 8:28 PM EDT ·

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Supporters of transgender rights rally in front of New York City Hall in October 2018. Nonprofit attorneys say the city's courts have thrown up unnecessary and legally questionable roadblocks for transgender people petitioning to officially change their names. (Drew Angerer/Getty Images)

When it took Legal Services NYC staff attorney Julian Castronovo more than three and a half hours to file name-change petitions on behalf of a handful of transgender clients in the civil court in Manhattan one morning in April, it felt like something in the system wasn't working right.

That feeling was aggravated by a clerk outing Castronovo, who is nonbinary and uses they/them pronouns, when they didn't offer that information themself, and it was of no consequence in the moment — "I didn't know you were transgender," they recalled the clerk saying.

And as the clerk asked Castronovo to step to the side and wait while she dealt with other matters, they said they were made to feel different from their cisgender colleagues who were able to file their cases without problems.

"It was one of those moments, which do not happen often, where someone made my professional identity as an attorney second to my personal identity as a transgender person," they told Law360. "I was frustrated for the day, and I felt really angry."

The legal process for name changes is clearly defined by New York law and is supposed to be straightforward. But after being left mostly in the hands of administrative staff due to procedural changes put in place during the COVID-19 pandemic, attorneys familiar with the process say court clerks have added requirements that have resulted in delays for many transgender applicants.

Uptil the last several years, New Yorkers looking to change their names and gender were governed by a law crafted with the stated intent of preventing fraud. The process required applicants to present medical documentation and publish notices of their name change in a newspaper.

With the passage of the Gender Recognition Act in 2021, however, the state eased certain requirements for name and sex designation changes, eliminating the need for medication documentation from those seeking to change their gender markers and ending the public notice requirement.

From a practical standpoint, the Gender Recognition Act also streamlined the application process: petitions and supporting documentation are reviewed by court clerks for compliance with the statute, and then it's sent up to a judge in advance of a hearing where a final decision is made.

But as the courts emerged from the pandemic, the process was changed to eliminate hearings and, instead, to allow decisions to be made solely on the submitted documents. It has remained that way since.

While the law only requires New York natives to show a birth certificate as proof of ID to change their names, attorneys say that since last March, clerks have required them to attach additional documents such as proof of address and photo IDs. The result, Castronovo said, has been clerks effectively acting as gatekeepers and preventing petitions from ever reaching a judge.

Instead of appearing before judges, applicants now have their cases handled mostly by clerks, who make their own determinations as to whether to approve or reject their petition, often in ways that advocates say the text of the law did not intend.

"The clerks are kind of taking the role of what the judge was doing at the hearings," they said. "What we've been seeing recently is that clerks are denying [petitions] for really, really obscure reasons."

And attorneys who spoke to Law360 say the result has been a disparate impact on transgender applicants.

"I can't speak to whether the court has created these increased systems — why they've done it," said Liam Lowery, another transgender attorney at Legal Services NYC. "But I will say it has coincided with an influx of more name-change petitions on behalf of transgender people."

A Bureaucratic Purgatory

Attorneys with experience filing name-change petitions say they can often get passed additional documentary requirements from clerks by pointing to the law's plain text, but pro se petitioners are more likely to see themselves rejected and forced to navigate a bureaucratic quagmire.

The name-change statute requires petitioners to answer yes or no to questions touching on their criminal background, debt and any child support or alimony obligations to help the court make its determination. Absent a finding of fraud, evasion of debts or obligations, or interference of the rights of others, judges are required to approve the name changes.

The current form New Yorkers use to ask courts to officially change their name and sex designation contains a series of pleadings and spells out the requirements for proving one's identity. Petitioners can ask judges, who make final determinations, to seal the name change record "for personal safety."

But as the process is now handled mostly by clerks, who can put petitions on hold before they ever get to a judge's desk, it has added a level of uncertainty, Castronovo said.

Where some clerks have asked to see formal certificates detailing how any past criminal convictions were disposed of, not all states issue such documents. And asylum-seekers who are asked to obtain birth certificates from their home countries' embassies also face tough choices — they can obtain their birth certificates, but risk hurting their asylum claims by showing their willingness to interact with the governments they seek to flee.

Castronovo recalled one petition that was denied because the petitioner, an undocumented citizen of the Dominican Republic who was applying for asylum in the U.S., lacked an embassy-certified translation of their birth certificate.

In other instances, clerks have rejected petitions for seemingly more petty reasons. In one, Castronovo said a clerk rejected an applicant's petition because the notary stamp on a document showed the notary's commission expired that same day.

While denied petitions can be appealed, the way clerks sometimes handle denials can preclude any recourse. Under the statute, clerks are required to stamp rejected petitions with the date and the reason for the denial, but Castronovo said clerks will sometimes say they are placing them "on hold" instead, effectively blocking the path for an appeal.

"There is this kind of almost purgatory that we are put in sometimes with the clerks," Castronovo said. "They're essentially denying [the petition], and so the recourse is none when they don't stamp it. And that's the problem."

According to attorneys, the clerical problems have been occurring since even before the pandemic-driven changes to the petition process.

In February 2020, representatives from groups including Legal Services NYC, New York Legal Assistance Group and Transgender Legal Defense and Education Fund, met with Judge Anthony Cannataro, a member of the New York Court of Appeals who then served as the chief administrative judge in the civil court in Manhattan, to voice their concerns about clerical practices the groups said disparately impacted transgender petitioners even before the pandemic hit.

According to Jose Abrigo, an attorney who attended the meeting on behalf of Legal Services NYC, the group raised the issue of clerks rejecting filings for supposed "defects" that were really just violations of made-up internal rules.

The conversations ended up going nowhere, Abrigo said.

Abrigo said that Judge Cannataro, who is gay, told the attorneys that modifying administrative practices would have required working with the unions representing clerical and security officers, which presented a barrier. Around the same time, the attorneys also met with the chief clerk of New York City Civil Court, who said that judges are the ones who decide how clerks should process petitions.

Lucian Chalfen, a spokesperson for the New York State Office of Court Administration, confirmed the meetings took place, and said that officials denied placing "any extra or onerous requirements on transgender name-change applications."

According to Chalfen, the attorneys were told that if their goal was to get uniform statewide procedures for processing name-change petitions, they should initiate a conversation with then-New York Chief Administrative Judge Lawrence K. Marks, who retired in November.

Abrigo said the advocates, whose aim was to make the name-change process more accessible in Manhattan, not the entire state, did not meet or seek to meet with Judge Marks afterward.

Representatives for the New York Court of Appeals declined to comment. The head of the New York State Court Clerks Association also declined to comment.

How Name Changes Play Out in New York Courts

The Supreme Court of New York, the state's trial court system, has jurisdiction over name-change petitions filed outside New York City. In the city, they're handled by the civil courts. Most petitions in the state involving a sex designation change are filed in the city.

Shain Filcher, the executive director of the LGBT Bar Association & Foundation of New York, said the two court systems have effectively created two different procedures for handling name changes.

"As practitioners, we want to see consistency, so we know what to expect as advocates and also what to tell people to expect if they're doing it alone," Filcher said.

Among the biggest differences is that, unlike in the city's civil courts, the state Supreme Courts allows petitioners to file paperwork entirely online.

"That means you're not having these interactions with the clerk behind the window," Filcher said.

Another big difference: filing fees. It costs $210 to file for a name change in the state Supreme Court system compared to $65 in the city's civil courts.

According to data collected by the state's Office of Court Administration, more than 7,200 name-change petitions were filed in New York City alone throughout 2022, the first full year the Gender Recognition Act was in effect — almost the same number of petitions filed in 2019 before the pandemic upended the petition process and the new law was adopted. In nearly 500 of the petitions from 2022, petitioners also asked courts to switch their gender marks.

But according to Beth Baltimore, pro bono managing attorney at The Door, a Manhattan-based organization focused on assisting transgender youth with name changes, the 500 figure doesn't accurately reflect the number of transgender people filing name-change petitions in New York. This is because changing one's gender designation alone doesn't always require a court order. For instance, people can switch gender marks on their driver's licenses directly through the state's Department of Motor Vehicles.

"I can't estimate an actual number, but I do expect it to be much higher," Baltimore said.

Overall, the number of people requesting gender-mark changes is expected to increase as more transgender people become aware of their rights and the administrative processes involved, advocates said.

Although New York City residents can file name-change petitions in any of the five boroughs, attorneys said they prefer to file cases involving transgender clients in Manhattan, where they say civil court employees receive more anti-discrimination training and are supposed to be better trained to deal with transgender people in particular.

"New York is a wild card, so to speak, if you live in any of the five boroughs," Filcher said. "That varies wildly, depending on which borough you go to, and even which person is behind the window on that particular day."

Castronovo, who has assisted clients with name changes in civil court for about eight years, said the civil court in Queens has sometimes refused to process name changes for people who are unauthorized immigrants, a practice Castronovo said is illegal.

A court spokesperson declined to comment on the allegation.

"Anyone who's a resident of New York City, the court will have jurisdiction to hear their case. It doesn't have to be residency of the United States," Castronovo said. "In general, we've been filing in the Manhattan civil [court] because the clerks and judges are generally better than in other boroughs."

But depending on who is on the bench and the directives coming from chief judges, the name-change process has been made sometimes easier, sometimes harder for transgender people.

"It's that push and pull," said Abrigo, who is now the HIV project director of Lambda Legal Defense and Education Fund, a nationwide organization focusing on LGBTQ rights.

Abrigo, who was part of a cohort of attorneys who helped write the Gender Recognition Act, said the name-change practice in New York City has changed significantly in the last decade, mostly for the better. That's especially true in comparison with other states, such as Montana, Oklahoma and Tennessee, where, for instance, making changes to gender markers on birth certificates isn't allowed, he said.

"The bureaucracy is the enemy to getting your name changed in New York City," a practice that is supposed to be straightforward, Abrigo said.

Judges examining petitions are tasked only with ensuring people are not trying to commit fraud, escape law enforcement, or duck certain financial obligations. But absent those factors, the law says a judge "shall" approve name changes, with no room for discretion.

But even after the Gender Recognition Act passed, attorneys say judges have sometimes denied petitions on "random" grounds not defined in the statute.

Abrigo said that open lines of communication between advocacy groups and court administrators can play a big role in smoothing the name-change process, and that court leaders are often open to suggestions and changes.

The other way forward is to sue. In the past, legal aid providers such as Legal Services NYC have occasionally brought lawsuits challenging the way judges or clerks interpret the law.

But litigation requires a plaintiff who's willing to hold out on changing their official names and gender for a long time and to deal with the potential publicity that might come with a protracted legal battle. Those plaintiffs are hard to find.

"A lot of folks just want to get a name change very quickly," Abrigo said. "An appeal case takes at least two years in order for it to wind its way through the court system. And you might not even get a good decision out of it."

Disparate Impact on Transgender People

People petition to change their names for a host of reasons, including marriages, divorce, or to correct mistakes on official records that may have happened at birth. In those cases, people typically proceed without attorneys. But the overwhelming majority of people who do seek legal representation in connection with name changes, and the largest share of clients that legal aid organizations assist with the process, are transgender people.

Attorneys say the hurdles transgender people face in changing their names are an example of implicit bias in the justice system. Even though there may not be overt bigotry or discrimination, attorneys representing transgender name-change applicants complained that clerical practices are having a disproportionate impact on transgender people.

"The harm is ranging, but in general, I think it's just denying somebody something that is supposed to be simple, simply because we're looking at these petitions differently than other petitions," Castronovo said. "I don't think anyone there has it on the top of their heads and is actively thinking transphobic things. I think it's more of just implicit bias."

Lawyers working with transgender clients say the fact that the name-change law focuses on trying to prevent fraud indicates an overall distrust of transgender people.

"There's this inherent assumption about transgender people, especially transgender women, that if you're trying to change your name, it's somehow fraudulent, or you're trying to do something bad, and not [that] you're trying to live as your authentic self," Lowery of Legal Services said. "So there's transphobia. It's really hard at times to ferret it out."

But LGBTQ rights advocates say name changes are actually crucial to a transgender person's safety.

Having documents reflecting names and genders that don't align with the ones they present can cause transgender people to be involuntarily outed, which in turn can expose them to discrimination, harassment and sometimes even violence. Fixing gender identity in documents provides transgender people with some cover, Castronovo said.

"It's one safety that they can have in their pocket," they said. "One way to feel a little bit protected in the world, or at least not consistently outed."

According to the 2015 U.S. Transgender Survey, the largest survey examining the experiences of transgender people in the United States to date, more than half of the respondents reported experiencing mistreatment, including physical and verbal abuse — and in some cases sexual assault — during interactions with law enforcement officers who either thought or knew the respondent identified as transgender.

Nearly a third of respondents who reported showing an ID with a name or gender that did not match their gender presentation said they were verbally harassed, denied benefits or service, asked to leave, or assaulted. More than two-thirds of respondents indicated that none of their IDs had their preferred name and gender.

Lowery said he knows well the awkwardness many of his clients feel when they show IDs with names not matching the ones they normally go by.

"For a person who identifies as trans, it really puts you at risk of being outed when you're in public spaces," Lowery said. "As a transgender person, that experience was really unpleasant."

--Editing by Lakshna Mehta.

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