Can The Courts Break Transgender Felons Out Of ID Prison?

By Matthew Santoni | March 8, 2020, 8:02 PM EDT

Alonda Talley of Philadelphia has said that when she’s had to give her government ID to police, she’s been harassed and threatened with arrest for “misrepresentation” and “false pretenses” because the name on the card, “Adolphus,” didn’t match the name she gave them.

But for Talley, it’s the information on her ID that’s misleading, and for the time being there’s nothing she can do about it.

As a transgender woman with a government ID that still reflected her old name and gender identity, Talley avoids travel that would require her to show ID, for fear of similar encounters with security, according to an affidavit she submitted to the Commonwealth Court of Pennsylvania. Since she is a Pennsylvanian with a decade-old conviction for aggravated assault, she is barred from legally changing her name to match her identity.

When transgender people are stuck using legal names that don’t conform to their gender identity, every interaction with the government, an employer or others who ask for their official identification can put them at risk of being outed and ostracized. For residents of nine states, certain convictions add another barrier to legally changing their names to match how they present themselves, sometimes for life.

However, Talley is among transgender individuals using the courts to challenge such rules in four states.

“Anytime people are required to present their ID, they’re outed,” said Lark Mulligan of the Transformative Justice Law Project of Illinois, one of the attorneys representing eight transgender women in Illinois. “In this post-9/11, high-security world, people are required to present their ID for all sorts of things: to access buildings, to access benefits, to access employment.”

The lawsuits in Illinois, Pennsylvania, Texas and Wisconsin seek to overturn state laws that impose waiting periods or prohibitions that prevent people with felony convictions from even applying to courts for a legal name change, arguing that such laws force transgender people to use “deadnames” in their daily interactions in violation of their rights to free expression, and deny them the due process of seeking a new name.

During arguments in the Pennsylvania lawsuit last month before the state’s Commonwealth Court, M. Patrick Yingling of Reed Smith LLP, representing Talley and two other transgender women, contended that such laws deprive people with felonies from even having a chance to change their names and tie them to identities that expose them to distress, harassment and violence.

But Alex Korn of the Pennsylvania Attorney General’s Office told the court that the state’s law was intended to prevent fraud, and to keep people with murder, rape and aggravated assault on their records from ducking the consequences of their convictions.

Korn compared the loss of the privilege to change one’s name to other privileges that end with a felony conviction, such as the right to possess a gun or serve on a jury.

“So long as the consequence of a conviction has to do with public safety, it’s still constitutional,” Korn told the three-judge panel.

Those behind the recent cases have suggested those public safety concerns are misplaced.

Karen Krebs, the plaintiff in the Wisconsin suit, doesn’t want to change her name to escape her registration requirements as a sex offender, that complaint said.

Though her legal name is still Kenneth, she currently registers under both names so that people could find her under either one; the harm she wants to avoid is the need to present her old name everywhere else, her attorney said.

“For Karen, she has to show a driver’s license that reflects a name that does not reflect how she presents herself to the world,” said Adele Nicholas, a civil rights attorney in Chicago representing Krebs. “Can she still access the courts? Yes. Can she still access government services? Yes ... but there is that extra step.”

According to a 2017 article published in the DePaul Law Review surveying state name-change laws and advocating for a change in Illinois, all states have a court procedure where adults can apply to legally change their names and have their government documents changed to match. Additionally, all states require some form of notice to be published and allow for the court to review and confirm that the petitioners are who they say they are and have a valid reason for changing their names.

Twenty-nine states include a mandatory criminal background check as part of the process where criminal convictions can be considered during the hearing, and some also bar registered sex offenders from changing their names, the DePaul study said.

But nine states — Illinois, Tennessee, Ohio, Louisiana, Pennsylvania, West Virginia, Utah, Iowa and Florida — have laws that subject people with certain convictions to waiting periods or permanent bars on name changes.

Wisconsin bars registered sex offenders from name changes, and Texas bars changes for people who are currently incarcerated, on community supervision, or less than two years out from their release. Illinois has a 10-year waiting period after completing a sentence for most felony convictions, and a permanent bar for identity theft or sex crimes. Pennsylvania has a two-year waiting period for most felonies and a permanent bar for convictions of murder, sex crimes, robbery, arson, aggravated assault, kidnapping, or car theft, the DePaul study said.

In the Illinois and Pennsylvania cases, the suits said the laws unjustly preclude people from even trying to seek a court review.

“We’re not asking the Commonwealth Court to issue an order changing these petitioners’ names, we’re asking the Commonwealth Court to strike down the part of the name-change law that prevents them from even applying,” Yingling told Law360. “That application ... will enable the court to evaluate whether these individuals are seeking a name change without a proper purpose, just like anyone else who seeks a name change.”

The plaintiffs’ complaints in all four states point to a wide range of barriers thrown up by the mismatch of their outward identities with their “official” ones, including being denied employment, medical care or transportation when they had to show their IDs, and being heckled, harassed or physically assaulted when their ID name outed them as transgender.

Sometimes, the danger of being outed is enough to prevent transgender people from even applying for jobs or seeking education because the ID requirements could force them to reveal their “official” names to coworkers or classmates, Mulligan said.

In Yingling’s view, anchoring someone with a conviction to their “deadname” for the rest of their lives is unnecessarily punitive. Pennsylvania’s name-change law isn’t part of the criminal code, and most of the plaintiffs are still dealing with convictions from decades ago, he said.

“The judge and jury at conviction didn’t know [the defendants] wouldn’t be able to change their names after that,” Yingling said. “In effect, it’s purely punitive and it doesn’t have a beneficial purpose, given the protections that are already in the name-change statute.”

All four cases remain pending though government officials in most of them are fighting for their dismissal. In Illinois, for example, Cook County State’s Attorney Kimberly Foxx argued that the plaintiffs couldn’t sue her because she had immunity under the 11th Amendment of the U.S. Constitution, which bars citizens from suing the state.

Two judges named as defendants in the Illinois case also sought its dismissal because, even though they were sued in their “administrative capacity” as the chief judge and presiding judge, neither were officially responsible for enforcing the state’s name-change statute, their motion said.

In the Wisconsin case, Kenosha County District Attorney Michael Graveley argued that Krebs couldn’t claim that the state’s ID law violated her First Amendment rights by making her use her old name.

“Wisconsin [name-change law] controls conduct, not speech. Thus, because the First Amendment is not implicated, its governmental purpose of preventing sex offenders from disappearing into society where they may offend again, survives rational basis review,” Graveley’s motion for summary judgment said. “Second, to the extent the statute implicates speech incidentally, it is constitutional because it is content-neutral and narrowly tailored to achieve the aforementioned purpose.”

In the Texas case, the state has yet to reply. Moira Meltzer-Cohen, the New York attorney representing plaintiffs in that suit, said it can be difficult to get bureaucratic systems to recognize people with misidentifying documents.

“Individuals take their cues from the way institutions and authorities treat people, so when an institution treats trans people in a way that harms them, this broadcasts to everyone else that conduct harmful to trans people will be tolerated or encouraged,” she said.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.

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