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Empire Justice Memo of Support: Provide Critical Privacy Protections to Vulnerable Individuals Who Change Their Names

March 27, 2015

 

A.02242


New York’s legislature has long understood that publication and release of sensitive information in name change proceedings places certain applicants at increased risk of harm - sometimes from the very people that the applicant is specifically seeking safety from.  This bill not only is in line with existing policy, but enhances and clarifies the law for name change applicants who need the benefit of the law’s critical safety protections.  Empire Justice Center believes that, if passed, this bill will be particularly useful for survivors of domestic violence, sexual violence, stalking, and human trafficking, as well as those in the transgender communities - groups that seek sealed, unpublished name changes at the greatest rates. 

A.2240 amends Section 64-a of the New York Civil Rights Law which currently allows judges to exempt certain applicants from statutory publication requirements, as well as provide temporary or permanent sealing of the court record.  This relief may be granted where the name change applicant can demonstrate that publication of the name change in a newspaper of record would jeopardize the applicant’s personal safety.  This bill supports and enhances this law by providing courts with additional guidance on this ground that directs courts to consider “the totality of the applicant’s circumstances.”  It also makes clear that a court should not deny sealing and non-publication relief simply because the applicant lacks specific instances of or a particularized history of threat to his or her personal safety.  This language fulfills the purpose of the sealing and non-publication provisions by enabling courts to protect an applicant’s safety proactively, instead of requiring that specific instances of violence already have taken place before granting protective relief.

Many transgender people turn to the courts for a judicial name change because they are seeking a chosen name that better reflects their identity.  For many, the mismatch between their gender expression and their birth names also subjects them to actual or potential increased violence, harassment, and discrimination. [1]  Transgender people are targeted with hate violence and discrimination by the general public at alarming rates. [2]  In fact, gender identity/expression and sexual orientation is the second-highest motivator for hate crimes - second only to race. [3]  Transgender women are killed by strangers perpetrating hate violence at the highest rates of all lesbian, gay, bisexual, and transgender (LGBT) victims - 72% of anti-LGBT hate violence homicides in 2013. [4]  The most recent hate crime data also shows a substantial increase in the severity of hate violence incidents, including incidents involving physical and sexual violence. [5]
 
Due to the often dire consequences of having their gender identity exposed, many transgender people are not publically “out” as transgender. [6]  Requiring a transgender applicant to publish notice of their name change would effectively expose their transgender status to the public and increase the risk that they will be targeted with violence or abuse.  This risk is particularly concerning in name change cases because the law requires notice of the applicant’s identifying details - including their prior name, new name, and home address - to be published in the county where the applicant lives.  Many newspapers publish these notices online, which provides an easy, ongoing way for the applicant to be found if publication occurs. 

Recognizing the danger that unsealed, published name changes pose to transgender people, some New York courts have granted privacy protections simply based upon the applicant’s transgender status where the individual did not have particularized instances of threats to their personal safety from a specific offender. [7]  Without expressly stating, these courts looked at the “totality of the circumstances” to determine grounds for this relief.  These courts were unwilling to place the transgender applicant directly in harm’s way simply because they did not plead a particularized incident of violence or abuse in their personal histories.                 

Victims of domestic violence, stalking, sexual assault, or human trafficking would also benefit from these proposed amendments.  While many of these victims are often able to plead a history of direct violence or threats to their safety from a particular person or persons, they may have endured veiled, implied threats or violence or abuse that was more temporally remote.  In some cases, the abuser may be getting released from incarceration or relocating to the community.  Trafficking victims may fear retaliation when they escape or flee their traffickers.  Directing a court to entertain the full scope of the applicant’s circumstances, as this bill does, allows ample court consideration of all of the applicant’s safety concerns that drove them to the identity change process.    

Empire Justice Center strongly supports this legislation.  The Assembly passed this bill on February 9, 2015.  We urge the Senate to do the same and protect those New Yorkers who need to be safe when they take the life-altering step of changing their identities.     


End Notes:
 [1] See Jaime M. Grant, ET AL., National Center for Transgender Equality and National Gay and Lesbian Task Force, Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, 5 (2011), http://www.thetaskforce.org/downloads/reports/reports/ntds_full.pdf (In a national study, “Forty percent (40%) of those who presented ID (when it was required in the ordinary course of life) that did not match their gender identity/expression reported being harassed, 3% reported being attacked or assaulted, and 15% reported being asked to leave”) [hereinafter “Injustice”].
 [2] National Coalition of Anti-violence Programs (NCAVP), Hate Violence Against Lesbian, Gay, Bisexual, Transgender, Queer, and HIV- affected Communities in the United States in 2013, (2014), available at http://www.avp.org/storage/documents/2013_ncavp_hvreport_final.pdf [hereinafter “Hate Violence”].
 [3] U.S. Dep’t of Justice, Federal Bureau of Investigations, Uniform Crime Report: Incidents and Offenses, 2011, 1 (2012), http://www.fbi.gov/about-us/cjis/ucr/hate-crime/2011/narratives/incidentsandoffenses_final.pdf. 
 [4] Hate Violence, supra note 2, at 2, 55.
 [5] Hate Violence, supra note 2, at 2, 55.
 [6] Injustice, supra note 1, at 56.
 [7] See Matter of E.P.L., 891 N.Y.S.2d 619, 621 (Sup. Ct. Westchester Co.  2009) (granting sealed, unpublished name change to transgender applicant pursuant to Civil Rights Law § 64-a due to pervasive gender identity-based hate violence in New York and the United States); Matter of John Doe, [Index Number Redacted by Court], NYLJ 1202601879249, at *1 (Sup. Ct., Westchester Co., Decided May 16, 2013) (granting transgender applicant new professional license and sealing court record under Public Officer's Law §87 (2)(f) to protect against risk to personal safety and harm to professional reputation).

For more information, please contact:


Amy Schwartz-Wallace

Empire Justice Center
Telesca Center for Justice
One West Main Street, Suite 200
Rochester, NY  14614 


(585) 454-4060
(585) 454-2518
aschwartz@empirejustice.org