Silver Flight, Associate Member, University of Cincinnati Law Review
For many transgender people, a legal name change is essential to being able to navigate the world without fear of being outed every time legal identification is required. Legal identification can be required as often as several times per day, occurring anywhere from applying to jobs to picking up packages at the post office. However, many U.S. states place restrictions on name changes for those with criminal records, and some states have mandatory waiting periods or complete bars to name changes for individuals with certain criminal records. These restrictions are in place due to concerns that those who commit crimes will change their names to hide from law enforcement or to hide their criminal backgrounds from those they live by. In reality, because multiple people may have the same name, law enforcement agencies can also track individuals by fingerprint number, driver’s license number, or social security number, all of which will stay the same despite a name change. Additionally, if a transgender person is using a name other than their legal name in their day-to-day life, it may be more useful for law enforcement records and registries to be updated to the name the individual regularly uses. Many states allow name changes for persons listed on registries and simply require them to notify the registry of the name change.
In Ohio, name changes are prohibited if the applicant was “convicted of, pleaded guilty to, or was adjudicated a delinquent child for having committed a sexually oriented offense, child-victim oriented offense,” or identity fraud. In a context where “[t]ransgender people are disproportionately criminalized,” this restriction on name changes may pose a major issue for many transgender people in Ohio. It functions as a collateral consequence that goes beyond the intended punishment of a prison sentence. Several challenges to similar statutes in other states have raised potential arguments that laws like Ohio’s are unconstitutional. This paper will examine challenges in Illinois and Pennsylvania, and argue that Ohio’s name change restriction should also be challenged.
II. Battles Elsewhere: Illinois
Illinois has one of the most restrictive name-change statutes in the country, with a waiting period of ten years after the completion of a sentence for any felony, and a permanent bar on name changes for “certain felonies and misdemeanors relating to sex crimes or identity theft.” On May 1st, 2019, eight transgender women filed a complaint in federal court in Illinois, alleging that the law preventing them from changing their legal names because of felony convictions is unconstitutional under the First and Fourteenth Amendments. The complaint gave examples of difficulties the eight women faced due to having IDs with masculine names that outed them as transgender whenever someone checked their ID. For example, several of them had difficulty applying for public benefits, enrolling in college, or obtaining or keeping employment, due to being outed as transgender.
The petitioners argued that the restriction violated their First Amendment right to free speech, because “[a] person’s right to choose, speak, and identify by a particular name is protectable speech under the First Amendment”  and “falls under both pure and symbolic speech that symbolizes a person’s personal expression and identity.” Additionally, the complaint argued that the restriction was unconstitutional compelled speech because it forced the petitioners “to speak, respond to, and acknowledge legal names that do not comport with their gender or personal identities.” The petitioners also argued that the restriction violated the Fourteenth Amendment’s Due Process Clause by depriving them of liberty, defining the “right to self-identify” as a fundamental right that “is central to personal dignity and autonomy and a necessary component of the right to define one’s own concept of existence.” This case is ongoing.
Activists in Illinois also supported a proposed bill last year that, if it had passed, would have removed “the ten year waiting period for people with felony convictions” and “the lifetime ban for people with identity theft convictions.”  Additionally, it would have added “a judicial discretion exception for people seeking a name change due to gender-related identity.”
III. Battles Elsewhere: Pennsylvania
Activists in Pennsylvania have had mixed success in challenging their bill that bars name changes for those convicted of certain felonies. In 2020, a federal judge dismissed a case on procedural grounds. However, rather than filing another suit, several plaintiffs petitioned for legal name changes in 2021. They submitted a memorandum outlining that the name change restriction was unconstitutional under the Pennsylvania Constitution by violating “[t]he right to independence in making important, intensely private decisions,” as well as “[t]he right to avoid disclosure of highly personal matters.” Other courts have held that “‘the [U.S.] Constitution does indeed protect the right to maintain the confidentiality of one’s transsexualism.’”
Ruling from the bench, the judge announced that the statute was unconstitutional, and granted the name changes for the petitioners. Attorney Gabriel Arkles, senior counsel with the Transgender Legal Defense & Education Fund and part of the legal team for the petitioners, commented that “[i]t’s too early yet to know for sure whether courts in the other counties are going to accept the ruling and grant name changes to people who would otherwise be affected by the bar, but I think that they should. The law really is unconstitutional.”
IV. Conclusion: A Way Forward for Ohio
Like the name change restrictions above, Ohio’s statute permanently barring name changes for individuals with certain criminal records is an unconstitutional violation of the First Amendment right to free speech and the Fourteenth Amendment’s due process right to privacy. On the privacy front, an argument could be made using the 2020 federal decision in the Southern District of Ohio, which held that preventing transgender individuals from changing the gender markers on their birth certificates violated their right to privacy. The court noted that transgender individuals faced a heightened risk of discrimination and violence, especially “when their highly personal transgender status was forcibly disclosed.” Therefore, the court held that the plaintiffs had “a substantive due process right to informational privacy that protects against the forced disclosure of the unchanged sex marker on their birth certificates.”
Because legal names often forcibly out transgender people in the same way that incorrect gender markers on IDs do, Ohio’s bar against name changes for those convicted of certain crimes, like its previous bar on gender marker changes on birth certificates, is unconstitutional under the Fourteenth Amendment. Ohio’s name change restrictions violate the due process right to privacy by forcing transgender individuals with certain criminal records to out themselves as transgender every time they use a legal ID for the rest of their lives, which can both put them in danger and prevent them from obtaining employment, going to school, or otherwise moving on with their lives. It is time for this outdated law to be challenged.
 Lark Mulligan, Dismantling Collateral Consequences: The Case for Abolishing Illinois’ Criminal Name-Change Restrictions, 66 DePaul L. Rev. 647, 720 (2017); HB 2542 Explainer PDF, HB 2542: Remove Felony Bar for Individuals Seeking a Name Change, ACLU of Illinois (2021), https://www.aclu-il.org/en/legislation/hb-2542-name-change (last visited Feb. 15, 2022); Name Change Guide for People with Previous Records PDF, ID Change Library, Trans Lifeline (last updated Dec. 2020), https://translifeline.org/resource/id-change-library/.
 Id. at 667, 685 (noting that law enforcement in Illinois typically track individuals by these numbers).
 Name Change Guide for People with Previous Records PDF, ID Change Library, Trans Lifeline (last updated Dec. 2020), https://translifeline.org/resource/id-change-library/.
 Ohio Rev. Code Ann. § 2717.16 (West 2021).
 Mulligan, supra note 1, at 671.
 Id. at 667.
 The United States District Court for the Northern District of Illinois, Eastern Division.
 Celeste Bott, Transgender Women Sue Over Illinois Name-Change Law, LAW360 (May 1, 2019), https://www.law360.com/articles/1155395/transgender-women-sue-over-illinois-name-change-law.
 Complaint for Declaratory and Injunctive Relief at 7-10, Ortiz et al v. Foxx et al, No. 1:19-cv-02923 (N.D. Ill. May 1, 2019).
 Id. at 19. Another plaintiff in Wisconsin attempted a free speech argument for a similar law, but the court held that her legal argument was not developed enough, and that the “only support for her position [was] a decade-old, student-written law review article.” Krebs v. Graveley, No. 19-CV-634-JPS, 2020 WL 1479189 at *1 (E.D. Wis. Mar. 26, 2020), aff’d, 861 F. App’x 671 (7th Cir. 2021). However, the Court stressed the limitation of its holding and that it “[did] not comment upon whether any appropriate arguments and legal support could be found to support Plaintiff’s position.” Id. at *2. The Seventh Circuit Court of Appeals upheld the ruling, holding that her argument below had not adequately developed the legal basis for her claim. Krebs v. Graveley, 861 F. App’x 671, 674 (7th Cir. 2021).
 Complaint for Declaratory and Injunctive Relief at 19, Ortiz et al v. Foxx et al, No. 1:19-cv-02923 (N.D. Ill. May 1, 2019).
 Id. at 23.
 Ortiz et al v. Foxx et al, Docket No. 1:19-cv-02923 (N.D. Ill. May 01, 2019), Court Docket (showing multiple delays relating to COVID-19 and that an oral argument was held on Dec. 6, 2021, on defendants’ motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim. Like the Pennsylvania and Texas cases below, defendants argue that they do not enforce the law being challenged and therefore have immunity under the Eleventh Amendment.).
 HB 2542: Remove Felony Bar for Individuals Seeking a Name Change, ACLU of Illinois (2021), https://www.aclu-il.org/en/legislation/hb-2542-name-change (last visited Feb. 15, 2022). In an update on June 1, 2021, the ACLU wrote “HB 2542 did not pass in the General Assembly during the scheduled session. We look forward to continuing to work on this legislation.”
 Porter v. Commonwealth, 238 A.3d 548 at *4 (Pa. Commw. Ct. 2020) (because “neither the Department of State nor its Secretary play[ed] any role in the Act,” the court sustained “Respondents’ misjoinder preliminary objection.”). A similar case in Texas was dismissed in 2021 because the court held that neither the Governor nor the Attorney General who had been named as defendants were responsible for enforcing the challenged state law. Langan v. Abbott, 518 F. Supp. 3d 948 (W.D. Tex. 2021).
 MaryClaire Dale, Transgender Pennsylvania Women With Felony Past Fight Name Change Rules, 90.5 WESA (Sept. 27, 2021), https://www.wesa.fm/identity-community/2021-09-27/transgender-pennsylvania-women-with-felony-past-fight-name-change-rules.
 Memorandum of Law in Support of Name Change Petition and Unconstitutionality of the Felony Bar at 54 Pa. C.S. § 702(c)(1), at 13, Case ID 210901990 (Pa. Ct. Com. Pl. Sept. 27, 2021).
 Id. at 15.
 Memorandum of Law in Support of Name Change Petition and Unconstitutionality of the Felony Bar at 54 Pa. C.S. § 702(c)(1), at 16, Case ID 210901990 (Pa. Ct. Com. Pl. Sept. 27, 2021) (quoting Powell v. Schriver, 175 F.3d 107, 111 (2d Cir. 1999) and also citing to, among others, Ray v. Himes, No. 2:18-CV-272, 2019 WL 11791719 (S.D. Ohio Sept. 12, 2019)).
 Aleeza Furman, After 3rd Successful Challenge to Name-Change Bar, Trans Rights Advocate Gabriel Arkles Talks Obstacles That Still Remain, The Legal Intelligencer (Dec. 16, 2021), https://www.law.com/thelegalintelligencer/2021/12/16/after-3rd-successful-challenge-to-name-change-bar-trans-rights-advocate-gabriel-arkles-talks-obstacles-that-still-remain/.
 Ray v. McCloud, 507 F. Supp. 3d 925, 933 (S.D. Ohio 2020). The policy also violated the Equal Protection Clause by “categorically denying transgender individuals the opportunity to have a birth certificate that reflects how they present to society but allowing others the same right.” Id. at 934-35.
 Id. at 933.
 Id. at 934.