The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
So held the New Jersey Appellate Division last week in In the Matter of Application of T.I.C.-C. to Assume the Name of A.B.C.-C. (by Judge Michael Haas, joined by Judges Hany Mawla and Stephanie Ann Mitterhoff):
Appellant A.B.C.-C. is a transgender man who sought to change his name to conform his identification documents with his gender identity. As part of his application, appellant submitted evidence showing transgender people are subject to a particularized threat to their safety based upon their identity, and asked that the record of his name change be sealed to protect him from such discrimination and violence. The trial court denied appellant's request. Having considered the issues appellant presents in light of the applicable law, we are satisfied he demonstrated good cause to seal the record. Therefore, we reverse the trial court's denial of appellant's motion, order that the record be sealed, and remand for any necessary further proceedings….
[W]e are satisfied appellant established good cause to seal the record of his name change application. First, the record amply supports a conclusion that "disclosure will likely cause a clearly defined and serious injury" to appellant. Second, the record fully supports a finding that appellant's "interest in privacy substantially outweighs the presumption that all court and administrative records are open for public inspection pursuant to R[ule] 1:38."
The two prongs of this court's inquiry are intertwined in this case because the "clearly defined and serious injury" to appellant is the violation of his "interest in privacy" in being transgender. Indeed, it is difficult to imagine a more intimate, personal, and private matter than whether a person's gender identity conforms with the sex they were assigned at birth, typically based upon the existence and appearance of their reproductive organs, and their chromosomal makeup….
In denying appellant's motion, the trial court misunderstood and misapplied the governing law. Prior case law may have involved past physical violence or threats. However, contrary to the court's understanding, the standard set in Rule 1:38-11(b)(1) does not require that the "clearly defined and serious injury" be physical harm or the threat of physical harm. Nor does the rule require that the movant have already suffered physical harm or the threat of physical harm. In fact, the language of Rule 1:38-11(b)(1) evidences an intent to prevent harm from occurring….
Appellant presented the court with evidence that transgender individuals face violence, harassment, and discrimination because of their gender identity. This is commonly recognized in case law as well. Accordingly, there was no reason for the court to discount appellant's fears, or assume they were unfounded….
On the other side of the ledger, the only expressed public interest in name change applications is protecting against those seeking to avoid or obstruct criminal prosecution, avoid creditors, or perpetrate a criminal or civil fraud. In this case, however, there are no concerns that appellant is seeking to avoid or obstruct criminal prosecutions, avoid creditors, or perpetrate a fraud. Moreover, appellant notified the Division [of Criminal Justice, Records and Identification Section,] of his application, as required under Rule 4:72-3, and the Division chose not to participate in the case and made no objection to appellant's application. Thus, a fair consideration of the law and the facts warranted granting appellant's motion.
The trial court also considered a number of irrelevant factors in denying appellant's motion to seal the record and his motion for reconsideration of that decision. The court denied the motions, in part, because appellant had already chosen to reveal he was transgender to individuals he trusted with that information. However, that did not mean appellant should be compelled to disclose this information to the world, including those who may do harm to him as a result, in order to obtain a change of name that affirms his gender identity. The purpose of sealing the record was to protect appellant's right to share his transgender identity only with those he trusts, thus avoiding the psychological and possibly physical harm he would suffer by making the information public….
To get the Volokh Conspiracy Daily e-mail, please sign up here.