New lawsuits by transgender people challenge bans on name changes for those convicted of crimes.
This article was originally published by The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system. Sign up for their newsletter, or follow The Marshall Project on Facebook or Twitter.
Alexandra Carson thought the interview had gone well. Her experience managing a restaurant more than qualified her for the server position at a buffet chain near her rural Texas home, she said, and the friendly conversation made her feel like the job was secure. But the hiring manager’s demeanor changed when it was time to fill out some paperwork, and Carson, a transgender woman, had to explain why the legal name on her ID is male.
“She became very closed-off and brusque,” Carson recalled. “Suddenly, it was, ‘We have other people we have to talk to.’” A friend of Carson’s who worked at the restaurant later told her the manager admitted she did not hire Carson because she is transgender. “She would never have known,” said Carson, if not for the name on her identification.
Carson, 32, wants to change her name legally, but Texas bars people with a felony conviction from doing so until two years after they complete their sentence—including probation or parole. Carson, who is on parole, won’t be eligible until 2025. She is one of three transgender women with past convictions who sued Texas officials last year, arguing that it is unconstitutional to force them to go by a legal name that doesn’t match their gender.
Transgender people filed four lawsuits in 2019 that challenge bans on those with certain types of convictions from changing their name. In addition to the suit in Texas, there are federal suits pending in Wisconsin and Illinois, and a state suit in Pennsylvania, where the first court hearing is next month.
The lawsuits detail stories that range from frustrating to chilling. Transgender people in prison in these states must use their birth name—sometimes referred to as a deadname within the transgender community—on official mail and on the prison phone system. In federal prison, this means that every five minutes during a call the phone system plays a recorded message with their former name. Several plaintiffs say they limit contact with family and friends to avoid this humiliation. Encounters with police once released can become fraught. During a traffic stop, police once accused one of the Texas women of stealing her own car because of the male name on her driver’s license and registration.
At least 17 states automatically ban people with some criminal convictions from changing their name, whether permanently or temporarily, according to a Marshall Project analysis of state laws. The laws are in flux: Lawmakers in California in 2017 made it easier for transgender people to change their names while incarcerated. By contrast, Indiana last year began prohibiting name changes for anyone with convictions for certain violent or sex crimes. With pushback from a group of formerly-incarcerated advocates, Indiana lawmakers created exemptions for marriage, divorce, adoption, and religion—but not for gender transition.
The bans on name changes do not target transgender people specifically. Rather, lawmakers who back the rules generally say they aim to protect the public by preventing fraud and ensuring people’s criminal records are accurate.
“There’s a danger that someone will change their name and try to misrepresent themselves,” said Ed Clere, the Indiana state representative who sponsored the ban there. “For example, someone who committed a crime against children, finding a way to get a job around children by hiding their past.”
A new name indeed makes it harder for someone’s past to surface on, say, an internet search. But advocates for transgender people say there is little chance it would allow someone to hide from law enforcement or employers running background checks. Many states require anyone seeking a name change to first submit their request to state police or other officials. Social security numbers and dates of birth—which employers often use for background checks—remain the same, as do prison ID numbers, DNA and fingerprints.
“I’m not out to fool anybody. I’m out to be who I am. And they don’t get to decide that,” said Karen Krebs, the sole plaintiff in the Wisconsin suit, who was convicted in 1993 of sexual assault of a child.
No one has ever done a comprehensive count of how many transgender people are incarcerated—the periodic federal survey of people in prisons and jails only allows for “male” and “female” gender categories. But 1,097 people self-report as transgender among Texas’ 141,500 prisoners—the largest prison population of any state—according to the state corrections department. The federal Bureau of Prisons says 998 of its 175,000 prisoners are classified as transgender. Though those numbers are relatively small, experts agree transgender people are disproportionately caught up in the criminal justice system. Discrimination by potential employers and landlords and rejection by family force many transgender people into the underground economy. Bias among police leads to arrests for prostitution when they are simply walking down the street—“walking while trans” is a rallying cry among activists in the community. In a 2015 survey, 2 percent of transgender people interviewed said they had been arrested in the previous year.
Transgender people whose names don’t match their identity say every job interview, traffic stop, and visit to a bank or a doctor puts them in a position “where I had to tell somebody about something that is none of her business: what genitalia I was born with,” said Carson, the Texas plaintiff. “It does leave me having to say things to people that nobody in that position would normally have to talk about.”
Carson declined to discuss her criminal conviction, saying it was more than a decade ago and does not reflect who she is now.
Several of the name change lawsuits argue that the First Amendment protects against compelled speech: being forced to identify yourself with a name that doesn’t match your identity. The Texas suit also argues that preventing a transgender person from changing their name is cruel and unusual punishment, because it can increase the risk of violence and psychological suffering and also adds barriers to jobs and housing beyond those already common for people with criminal records.
“If the name that everyone is calling you consistently mis-genders you, that’s tantamount to torture,” said Moira Meltzer-Cohen, one of the attorneys for the Texas plaintiffs. “And it signals an institutional disrespect that exposes trans people to violence and disrespect and harassment from both staff and other prisoners.”
Texas Governor Greg Abbott and Attorney General Ken Paxton, the defendants in the suit, have not replied in court and did not respond to requests for comment. In legal filings, officials in Wisconsin said Krebs was barred from bringing her suit by the Eleventh Amendment, which prohibits some lawsuits against states. In court papers in Illinois, State’s Attorney Kim Foxx, one of the defendants, argues that it’s not her job to enforce the name change law.
The first round of arguments will come next month, in the Pennsylvania case. State authorities there argue that an official ID is government speech, not private speech, and that the law banning name changes is “rationally related to the legitimate state interest of protecting public safety.” They say legislators passed the law to protect seniors and children.
The suit in Wisconsin specifically challenges the name change ban for anyone on the sex offender registry. In depositions, a state official conceded that not listing the name transgender people use in their daily life actually makes the registry less accurate, said Adele Nicholas, one of the attorneys in that suit.
The women also said the laws compromise public safety—theirs and that of other transgender people. Eisha Love, a plaintiff in the Illinois suit, is barred from changing her name because of a 2015 aggravated battery conviction. She said she has stopped going out with friends at night because of all the times bouncers at dance clubs have looked at her ID and whispered, “‘I think that’s a man.’”
“You’re always at risk,” Love said. “It makes you feel unsafe.”
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