The Ability to Change Your Name After Marriage Depends on Your Sex

Photo by Drew Coffman on Unsplash

Natalie Hurst, Associate Member, University of Cincinnati Law Review

I. Introduction

After the magic and fireworks of a wedding, one of the many decisions a newlywed may make is whether to change their* last name. Traditionally, this decision was only made by women in heterosexual marriages—and women were expected to take their husband’s last name.[1] Now, modern couples are increasingly choosing non-traditional options for changing their names after marriage, such as either spouse taking the other spouse’s last name, hyphenating both last names, or creating a new last name altogether.[2] Though couples are modernizing the names they choose for themselves, the name change process has not kept up.[3] For example, the name change process fosters the archaic idea that only women change their last name after marriage, and that a marriage is comprised of only one man and one woman. The name change process is made particularly difficult for same sex couples.[4] This article discusses the simple name change process for women after marriage, the complex name change process for men after marriage, and the added complexity for same-sex couples. Additionally, this article discusses the sexist, heteronormative, and unconstitutional consequences resulting from this practice. Finally, Ohio’s particularly complex name change process will be examined as an example.

II. Background

A. Simple Name Change Process for Women After Marriage

For a woman to change her last name after marriage, the procedure requires simply presenting a marriage certificate as a legal name change document to their local Social Security Administration and receiving an amended social security card that reflects the new name.[5] The marriage certificate must feature some combination of whatever last name the woman intends to take.[6] For example, suppose the woman would like to hyphenate her last name with her spouses’ last name. In that case, the marriage certificate must have both last names on it (e.g., if the certificate features the names Jane Roe and John Doe, the woman’s new last name can be combined as either Roe-Doe or Doe-Roe).[7] After the woman is issued a new social security card that features her new last name, she must update her other forms of identification, such as a driver’s license and passport. Once these steps are complete, a woman has legally changed her name.[8] The woman is legally required to go by her new legal name, so she must also update all other documents and records with her company’s HR department, her health insurance provider, her bank, vehicle and registration title, etc.[9] To update these documents, it costs around $200 plus other miscellaneous fees.[10] This easy name change process for women is recognized in most states, including Ohio.

B. Complex Name Change Process After Marriage for Men & 14th Amendment Implications

It is not so easy for a man to change his name after marriage. Only ten states allow men to use a marriage certificate as a legal name change document—Colorado, North Dakota, New York, Massachusetts, Louisiana, Iowa, Hawaii, Georgia, Oregon, and California.^[11] Except for in those ten states, a man will have to go through a statutory name change proceeding.[12] A typical statutory name change proceeding, which most states practice, involves a court hearing and a judge’s order allowing the name change.[13]

These differing name change processes for men and women may be an unconstitutional infringement on 14th Amendment equal protection guarantees (which provides that all citizens deserve equal protection under the law).[14] In this instance, the statutory name change process discriminates on the basis of sex—with men being subjected to a complex and more expensive name change process to change their name after marriage. In the past, statutes compelling women to take their husband’s last name have been struck down on the basis of 14th Amendment equal protection and as a violation of Title VII of the Civil Rights Act (which prohibits employment discrimination based on race, color, religion, sex, and national origin).[15] Though Congress and case law have not dealt with men changing their name after marriage, a man’s ability to change his name after marriage falls within the same policies.[16]

C. Implications for Same-Sex Couples & 14th Amendment Implications

Additionally, if both spouses are women who wish to change their last names, only one female partner will be able to utilize the simple name change process, while the other partner faces the petition process. In Ohio and many other states (not including the ten states that allow a man to use a marriage certificate as a legal name change document),[17] male partners who wish to change their last names after marriage must go through the statutory legal name change process, so, if both spouses are men, then they must go through the statutory name change process if they wish to change their names.

Though no direct cases have resulted from the disparate impacts of the name change processes on same-sex couples, cases have dealt with the importance of same-sex couples’ last names.[18] Because same-sex couples, like men, are discriminated against in their ability to change their name after marriage, this violates equal protection guarantees as well.

D. Ohio Example

Ohio takes the already complex name change process to another level and imposes arbitrary requirements. For a man to change his name in Ohio, he must (1) petition for a legal name change hearing in his county’s probate court, (2) attend the hearing to explain to a judge the reason for the name change, (3) receive permission from a judge in the form of an order, and (4) purchase an ad in a locally-run newspaper giving notice to the public at least thirty days before the hearing.[19] First, a man must file an Application for Change of Name of an Adult to be granted a hearing.[20] Next, he must give notice of his name change application to the public by purchasing an ad in “a newspaper of general circulation” in the county at least thirty days before the hearing.[21] Then, he must attend the hearing and present to the judge “proof that proper notice was given” and “reasonable and proper cause” for changing his name.[22] After he has completed these steps, it is entirely up to the judge’s discretion whether to grant the man a name change—it is the judge’s prerogative to determine if wanting to share the name of his spouse is reasonable or proper. Finally, if the judge grants a name change order, the order serves as a legal name change document for the man to take to the Social Security Administration to begin the process to change their identification documents. In all, the name change process for a man in Ohio is comprised of legal and court fees that range from $150-200, plus miscellaneous fees, plus the fees to then change identification documents (such as a driver’s license and passport).[23]  

III. Analysis

The current name change process throughout the United States (with the exception of the ten states that allow a man to use a marriage certificate as a legal name change document) is sexist, heteronormative, and may be an unconstitutional infringement on the 14th Amendment’s equal protection guarantees. Ohio’s name change process is particularly antiquated.

A. Sexism, Heteronormativity, and Unconstitutional Infringement of Equal Protection

Providing women an easy way to change their name after marriage (i.e., by simply taking a marriage certificate to the Social Security Administration), while failing to provide the same easy process for men, is based on the sexist assumption that only women change their names after marriage. The custom originated with medieval English “coverture laws” where married women were assumed to become “one” with their husbands and required to take their husband’s surname.[24] These laws prevented women from entering into contracts, engaging in litigation, participating in business, or exercising ownership over real estate or personal property.[25]

These practices carried over to early America, with women being legally subservient to their husbands. U.S. law slowly caught up with the idea that women are independent beings with individual rights, as evident by the passage of Married Women’s Property Act in the mid-1800s, which gave a woman’s name independent legal significance by allowing women to contract and own property.[26] For another example, it was not until 1982 that an Alabama statute was removed that required a woman to take her husband’s surname to qualify to vote.[27] Though women are no longer compelled to take their husband’s surname, the name change laws are implicitly sexist by making it only easy for women to voluntarily change their name. The law fails to recognize that husbands, or both spouses, may want to change their names after marriage by failing to provide husbands, or both spouses, with the same easy way to change their names after marriage. In 2020, it is outdated to rely on the idea that only women will voluntarily change their name after marriage while men will want to keep their name.

Additionally, the current name change process is heteronormative because it provides an easy name change process only for one female spouse. This process does not recognize that marriages can be comprised of same-sex couples who might want to change their names after marriage. For example, even though the name change process favors a woman’s ability to change her name after marriage, it only favors one female spouse’s ability to do so. For a marriage comprised of two women, only one woman is extended this easy process. This process is rooted in the idea, again, that only a woman will change her name after marriage and that a marriage only features one woman. Moreover, this process completely excludes gay men from utilizing the easy name change process after marriage. Because a marriage between two men is not considered to have any female spouses, both men only have the complex name change process to turn to.

Finally, there is an implication that these differing name change processes for men and women may be an unconstitutional infringement on 14th Amendment equal protection guarantees. The process discriminates on the basis of sex —with men being subjected to a complex and more expensive name change process to change their name after marriage. Moreover, men are discriminated against by not being allowed to use a marriage certificate as a name change document to change their name after marriage while a woman can use this document. If the constitutionality of this name change process were ever challenged, the process would likely fail intermediate scrutiny (the standard used to analyze sex-based discrimination). For example, the government would have to present a compelling interest in conducting the name change process in this way, such as administrative convenience. This interest is not compelling because it can be addressed in non-discriminatory ways, such as the administrative ease of simply allowing both people featured on the marriage certificate to use it as a legal name change document. A court would not likely find any interest compelling enough to justify this gender-based discrimination.

Moreover, besides being expensive and time-consuming, the statutory name change process is entirely left to the discretion of judges who may not grant a person their name change. For example, a man could go through the statutory name change process while incurring expenses, declaring private information and details of his life to a judge to provide a reason for his name change, publishing notice in a newspaper, etc., and still have no assurance that he would be granted his name change.[28] It is an unconstitutional deprivation of equal protection to force a man to go through this name change process while allowing only women to simply use their marriage certificate to change their name after marriage. After all, a legal marriage is between two people, and those two people should be treated equally under the law.

B. Ohio Example Revisited

Ohio’s particularly antiquated statutory name change process exemplifies these issues. In Ohio, just like in every state in the U.S., a woman can easily change her name after marriage because a marriage certificate is recognized as a legal name change document for women alone. Since Ohio does not allow men to use a marriage certificate as a legal name change document, men who wish to change their name after marriage must go through the statutory name change process, which includes attending a hearing before a judge and publishing an announcement in a local newspaper. As already discussed, the inability to use a marriage certificate to change a man’s name is rooted in the old-fashioned, sexist idea that only women change their names after marriage.

Ohio’s publication requirement takes it a step further and exemplifies how outdated this name change process is. In the past, newspapers served as the main source of public record-keeping, so this publication requirement was enacted to prevent men from changing their names simply to escape those whom they owed a legal obligation, such as creditors.[29] In 2020, newspapers are not the only source of public records, and this publication requirement becomes particularly obsolete considering the decrease in reliance on newspapers for information and the wide access people have to information via the internet. Moreover, the publication requirement seems redundant because the results of the hearing (i.e., a court order) are available to the public.[30] Ohio’s current practice needs to be updated because it is currently founded on outdated sexist ideas and obsolete publication requirements.

IV. Conclusion

Names are important and valuable to one’s sense of identity. The government should not dictate who can change their name after marriage based on sex, gender, or sexuality. States could resolve this issue if they altered existing procedures to allow two people to utilize a marriage certificate as a legal name change document. Because a marriage certificate features two people’s names, it makes sense to allow those two people (and not just one person in the relationship) to use that document to change their names if they so choose. A married couple’s ability to choose a shared name is special, and the practice of changing one’s name after marriage has been recognized for centuries. All people, regardless of their sex, have a legal right to have equal access to change their name after marriage. If the government is going to allow a woman to easily and cheaply change her name after marriage, then the government must extend that same ability to men and same-sex couples who wish to change their name after marriage.

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* Please note that I use a variety of pronouns—she/he, hers/his, and theirs—for the sake of clarity. Additionally, I use the terms wife, husband, and spouse. Because this article deals with traditional notions concerning gender conformity, I use traditional, though possibly unsuitable, pronouns solely for clarity. I use these unsuitable pronouns and terms as a reflection of the current law. 

[1] Stephanie Reid, The History Behind Maiden vs. Married Names, Seattle Bride (2018), https://seattlebridemag.com/expert-wedding-advice/history-behind-maiden-vs-married-names.

[2] Suzannah Weiss, Creating a Name for Themselves, N.Y. Times (Mar. 13, 2020), https://www.nytimes.com/2020/03/11/fashion/weddings/name-change-after-marriage-not-always-easy.html; See also, Emily Fitzgibbons Shafer & MacKenzie A. Christensen, Flipping the (Surname) Script: Men’s Nontraditional Surname Choice at Marriage, Journal of Family Issues (2018).

[3] See e.g., Elizabeth F. Emens, Changing Name Changing: Framing Rules and the Future of Marital Names, 74 U. L. Chi. L. Rev. 761 (2007).

[4] See e.g., Audrey Gibbs & Gavi Klein, Tools of the Patriarchy: The Naming Tool, Ms. Magazine: Herstory, Justice, and Law (June 17, 2020), https://msmagazine.com/2020/06/17/tools-of-the-patriarchy-the-naming-tool/; See also, Vicki Valosik, For Same-Sex Couples, Changing Name Takes on Extra Significance, The Atlantic (Sept. 27, 2013), https://www.theatlantic.com/national/archive/2013/09/for-same-sex-couples-changing-names-takes-on-extra-significance/279841/.

[5] Social Security Administration, How do I change or correct my name on my Social Security number card?, FAQ, SSA (updated Nov. 12, 2020), https://faq.ssa.gov/en-us/Topic/article/KA-01981.

[6] Id.

[7] If a woman would like to change her last name to a name that is not featured on her marriage certificate (e.g., she creates an entirely new name for herself), she will not be able to use the simple process. Instead, she will have to go through the complex process men go through to change their names after marriage.

[8] See e.g., Elena Donovan Mauer, How to Change Your Name in Ohio After You Say “I Do,” The Knot (Dec. 3, 2019), https://www.theknot.com/content/name-change-ohio#:~:text=To%20petition%20for%20a%20legal,paper%20announcing%20the%20intended%20change.

[9] Id.

[10] Venus Wong, The Hidden Costs of Marriage No One Talks About, Refinery29 (Apr. 3, 2017), https://www.refinery29.com/en-us/marriage-name-change-cost.

[11] Tyrone Jones, Men Changing Their Last Names to Their Wives’, Marriage Name Change Blog (2016), https://www.marriagenamechange.com/blog/men-changing-last-names/.

[12] Michael Rosensaft, The Right of Men to Change Their Names Upon Marriage, 5 U. PA. J. Const. L. 186, 188 (2002), https://scholarship.law.upenn.edu/jcl/vol5/iss1/6.

[13] Id. at n.15.

[14] U.S. Const. amend. XIV.

[15] E.g., Allen v. Lovejoy, 553 F.2d. 522 (6th Cir. 1977). See also, 42 U.S.C. §2000 (1964).

[16] Rosencraft, supra note 12.

[17] Jones, supra note 11.

[18] E.g., Pavan v. Smith, 137 S. Ct. 2075 (2017). In this case, the U.S. Supreme Court ruled that same-sex couples who have children via surrogate have a right to have their names listed on the child’s birth certificate.

[19] Ohio Rev. Code Ann. §2717.01(A)(1)-(3) (amended 2013). http://codes.ohio.gov/orc/2717.01.

[20] Ohio Rev. Code Ann. §2717.01(A)(1); See also, Probate Court of Hamilton County, Instructions for Name Change of an Adult, (July 26, 2018), https://www.probatect.org/docs/default-source/forms-and-services/name-change/packets/adult.pdf?sfvrsn=b8d67bf1_18.

[21] Ohio Rev. Code Ann. §2717.01(A)(2).

[22] Ohio Rev. Code Ann. §2717.01(A)(3).

[23] Total Legal, Name Change Filing Fees, Total Legal (2020), https://www.totallegal.com/name-change-filing-fees.

[24] Reid, supra note 1.

[25] Id.

[26] Id.

[27] See State v. Taylor, 415 So.2d 1043 (Ala. 1982).

[28] See e.g., Rosencraft, supra note 12 at 208.

[29] Jones, supra note 11.

[30] Provided that the exception is not met under Ohio Rev. Code Ann. §2717.01(A)(4) where notice is not required if it would jeopardize the applicant’s personal safety.