Name Changes: Do We Need Judicial Discretion?

Photo by Jon Tyson on Unsplash

Silver Flight, Associate Member, University of Cincinnati Law Review

I. Introduction

The legal name change process is one of many barriers to accurate identification faced by transgender people in the United States. A formal name change is necessary to use one’s chosen name on all sorts of documents, ranging from driver’s licenses to school class rosters. Having a legal name that matches one’s chosen name and/or gender identity can also have a substantial impact on mental health,[1] so it is vital that legal name changes are accessible for anyone who wants one.

The details of name change procedures vary from state to state (and from county to county within those states), but there are generally common elements across the U.S. Those who have committed certain crimes face additional barriers to name changes,[2] and obtaining gender markers can be even more difficult than name changes.[3] This article will focus only on name changes for individuals who are not facing crime-related name change barriers.

In the U.S., a legal name change typically involves the discretion of a judge. Transgender people have historically faced difficulties obtaining legal name changes due to transphobia and judges who perceived their name change requests as “fraudulent, inappropriate, confusing, and deceptive.”[4] Today, it is less common for adult name changes to be denied due to transgender status, but it can be a very stressful process, and transgender youth may still face name change denials.

This article questions whether requiring judicial discretion for name changes is necessary or desirable, and advocates for administrative name changes as a way to reduce the burden on both individuals pursuing name changes and judicial resources.

II. The Name Change Process

A legal name change in the U.S. for any reason other than marriage or divorce typically requires several steps. First, the applicant must file paperwork that includes the reason for the name change and pay filing fees that can be hundreds of dollars. Then the applicant attends a court hearing where they may need to defend the reasons for their name change. If they are granted a court order for a name change, they will need to go through name change processes for other documents such as driver’s licenses and birth certificates, which require additional fees. Many states also require that the applicant pay to publish their name change in the newspaper, with some states requiring multiple publications.[5]

These daunting requirements of figuring out paperwork, getting transportation to the courthouse to file the paperwork, paying fees that can amount to hundreds of dollars, publicly publishing a name change alongside identifying information such as an address, and defending a name change to a judge at a hearing can make name changes overwhelming and inaccessible.

In contrast, the process to change one’s name due to marriage or divorce is often much simpler. For example, in Hamilton County, Ohio, rather than obtaining a court order, one can simply present a marriage license or divorce decree to an organization such as the Social Security Administration or the Bureau of Motor Vehicles for a name change.[6]

The reasoning behind the requirements of a court hearing and public notice for non-marriage or divorce related name changes is to prevent fraud, such as someone changing their name to avoid debts or legal obligations. But are court hearings really necessary to prevent fraud, or do judges have too much discretion?

III. The Discretion of the Judge

In most jurisdictions, the judge has discretion to approve or deny name changes, with statutory language ranging from “the judge shall grant the name change if there are no good reasons not to do so”[7] to “the judge ‘may’ grant the change upon a showing by the applicant of good cause.”[8] Name changes represent the private individual’s interest in their right to self-expression versus the public’s interest in preventing someone from changing their name to subvert the law or to adopt a deeply offensive name.[9] Considering the significance of the private interest in self-expression, we should critically question whether we need or want individualized discretion in name changes.

To avoid discrimination, some transgender advocacy organizations encourage transgender applicants to list a reason for their name change such as, “this is my preferred name,” rather than writing that they are transgender.[10] However, judges will likely still interpret a name change from one gender to another as a transgender name change. In a recent Ohio case, a judge denied a name change request from a transgender minor, even though he had support from his parents and counselors.[11] Why should a judge get to make that call when it goes against the wishes of the teenager, his parents, and medical personnel?

IV. Administrative Name Changes

Name changes can and should be handled administratively rather than requiring a court hearing and individualized discretion by a judge for every name change. Not only would this reduce the financial and time burden on individuals going through the name change process, it would also reduce the burden on judicial resources. Name change applications already require applicants to state that they are not changing their names for fraudulent purposes, and many states even require background checks as part of the application process. An administrative name change process could handle name change applications and only require a hearing if there is a particular concern. Valid concerns should be statutorily limited to exclude concerns about the gender or uniqueness of the chosen name.

Oregon is example of a U.S. state that may be moving in this direction. The Oregon court’s name change guide states: “Do I have to go to court after I file? Not unless the court tells you to or sends you a hearing notice. In some situations, a judge may want to talk to you.”[12] Additionally, with the 2018 implementation of Oregon House Bill 2673, Oregon residents can change their name and/or sex on birth certificates without obtaining a court order.[13] Similarly, in Hawaii, residents can submit name change petitions online rather than go through the court system.[14]

Ohio also has new statutory language that may open up the possibility of more administrative-based name changes. On August 17th, 2021, Ohio implemented House Bill 7, which includes several revisions to Ohio name change law.[15] One revision is that the new statute contains the language that “[t]he probate court may hold a hearing on an application.”[16] This change is reflected in the Hamilton County Probate Court’s guide to name changes, which states that “Ohio Law no longer requires that applicants to Change Name be set for formal hearing. However, a hearing may still be required in the Court’s discretion.”[17] If a hearing is not required, “the application will be considered by the Magistrate who reviews the documents.”[18]

To give another example of how name changes can be handled administratively, in England and Wales, one can apply for a name change by deed poll.[19] It costs £42.44 (about $60) to enroll a new name so that it’s on public record (which may be required for some institutions to recognize the name).[20] Although there is a notice requirement, you “can change your name by Deed Poll as often as you want, at any time and for any reason provided it is not for deceptive or fraudulent purposes,”[21] and there is no hearing requirement. Once this is done, it is free to change your name on your driver’s license.[22] However, a deed poll does not allow for name changes on birth certificates.[23]

V. Conclusion

The current name change process that transgender people have to go through in the U.S. is burdensome to both the judicial system and the individuals seeking the name change, but it does not have to be. The U.S. should move toward administrative name changes, as it already does in cases of marriage and divorce, and as is done by several other countries. The private interest in freedom of expression outweighs the public interest in preventing fraud through requiring judicial hearings for name changes, and that public interest can be served through other methods of preventing fraud. Name changes are essential for allowing us to live as our true selves, and they need to be more accessible.

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References

[1] National Survey on LGBTQ Youth Mental Health 2021, The Trevor Project (2021), https://www.thetrevorproject.org/survey-2021.

[2] Interest of C. G., 955 N.W.2d 443 (Wis. App. 2021) (holding that prohibiting transgender woman from changing her name due to her registration as a juvenile sex offender did not implicate her First Amendment rights). Many states include similar prohibitions against registered sex offenders or those who have committed felonies being able to legally change their name.

[3] Tey Meadow, “A Rose is a Rose”: On Producing Legal Gender Classifications, 24 Gender & Soc. 814, 821 (2010) (noting that courts were more likely to grant a name change than a gender marker change).

[4] Tre Wentling, Contested Citizenship: Renaming Processes among People of Transgender Experience, 67 J. Homosexuality 1653, 1656 (2020).

[5] ID Documents Center, National Center for Transgender Equality, https://transequality.org/documents (last visited Sept. 19, 2021) (noting multiple publication requirements by state for Delaware, Georgia, Idaho, Illinois, Indiana, Missouri, Montana, Nebraska, and South Dakota, although many states allow waiver of publication if the petitioner’s safety will be threatened).

[6] Name Change, Gender Change in Hamilton County: Home, Hamilton County Law Library, https://libguides.hamilton-co.org/c.php?g=867318&p=6222958 (last visited Sept. 19, 2021).

[7] Michael C. Pollack, Courts Beyond Judging, 46 BYU L. Rev. 719, 733 (2021).

[8] Id. at 736.

[9] Id. at 772.

[10] Name & Gender Change Guide for Residents of Washington, DC, Whitman-Walker Health 3 (Aug. 2018) https://www.whitman-walker.org/Guides%20PDF/DC%20Name_Gender%20Guide_September%202018.pdf (noting that clients who listed “I am transgender” as the reason for their name change had the Court request a statement from a counselor or physician saying that the client was transgender, while those who put “this is my preferred name” did not experience that issue). The author has also heard this advice at an Ohio-based transgender name change clinic.

[11] Matter of H.C.W., 123 N.E.3d 1048 (Ohio App. 12th Dist. 2019) (holding that the probate court abused its discretion by denying a name change for a transgender teenager); Cameron Knight, Appeals Court: Judge’s Denial of Transgender Name Change ‘Unconscionable’, Cincinnati Enquirer (Mar. 10, 2019), https://www.cincinnati.com/story/news/crime/crime-and-courts/2019/03/10/appeals-court-judges-denial-transgender-name-change-unconscionable/3121437002/ (noting that the name change was supported by both of the teen’s parents, a therapist, and a doctor specializing in treating transgender children.).

[12] Change of Name or Sex, Oregon Judicial Department, 1 (Nov. 2018), https://www.courts.oregon.gov/forms/Documents/Name%20and%20Sex%20Change%20Packet%20(Adult).pdf.

[13] Elise Herron, Starting Next Week, Oregon Will Let You Change the Name and Gender on Your Birth Certificate in Just Two Easy Steps, Willamette Week (Dec. 28, 2017), https://www.wweek.com/news/2017/12/28/starting-next-week-oregon-will-let-you-change-the-name-and-gender-on-your-birth-certificate-in-just-two-easy-steps/; House Bill 2673, Oregon Health Authority, https://www.oregon.gov/oha/PH/BIRTHDEATHCERTIFICATES/Pages/rules.aspx (last visited Sept. 19, 2021) (noting under FAQ section that name and sex can be changed separately).

[14] About the Name Change Application, Hawaii.gov, https://namechange.ehawaii.gov/public/about.html (last visited Sept. 20, 2021).

[15] House Bill 7 – 134th General Assembly, The Ohio House of Representatives, https://ohiohouse.gov/legislation/134/hb7 (last visited Sept. 19, 2021).

[16] Ohio Rev. Code Ann. § 2717.08 (West) (emphasis added).

[17] Instructions for Change of Name of an Adult, Hamilton County Probate Court, https://www.probatect.org/docs/default-source/forms-and-services/name-change/packets/name_change_of_adult_packet.pdf?sfvrsn=1867df1_8 1 (last modified Aug. 17, 2021).

[18] Id.

[19] Advice for Transgender People, Deed Poll Office, https://deedpolloffice.com/advice/transgender (last visited Sept. 19, 2021) (noting that transgender people can request a name change via deed poll if they don’t have a Gender Recognition Certificate (“GRC”), and that doing so can also help prove one is living in their chosen gender when they later apply for a GRC).

[20] Change Your Name by Deed Poll, GOV.UK, https://www.gov.uk/change-name-deed-poll (last visited Sept. 19, 2021).

[21] Enrolling a Name Change in the Royal Courts of Justice, HM Courts & Tribunals Service, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/964986/loc019-adult-eng.pdf (last modified Mar. 2021).

[22] Change the Name or Gender on Your Driving License, GOV.UK, https://www.gov.uk/change-name-driving-licence (last visited Sept. 19, 2021).

[23] Changing a Name on a Birth Certificate in England and Wales, ukdp.co.uk, https://www.ukdp.co.uk/name-change-birth-certificate-england-and-wales/ (last visited Sept. 19, 2021).