Virginia Court Rejects Retroactive Attempt to Seal Name Change Records

The decision came despite the applicant's objection, ten months after the name change, that the change was needed to prevent "potential endangerment and/or discrimination through publicly disclosed record of the transgender applicant."

From In re: E.B.M., decided July 26 by Judge David A. Oblon (Va. Cir. Ct. Fairfax County):

The issue before the Court is whether it may seal from public inspection a name change order and related records 21-days after entry of the order. The Court holds it may not do so.

Even if the Court had authority to seal the name change order and related records, the movant in the present case failed to proffer a serious threat to her health or safety to justify sealing the public record.

For both reasons the Court will issue an Order denying the motion to seal….

Over ten months after the Court entered the name change order, on July 12, 2023, E.B.M. filed the present motion, citing no legal authority for the Court to seal the name change Order and related records so long after entry of the Order.

E.B.M. told the Court she wanted to seal the name change Order and related records due to a general fear of harm from transgender community opponents. She cited no current particularized or specific harm towards her arising from the public name change….

Virginia Code § 8.01-217(F) reads:

The [name change] order shall contain no identifying information other than the applicant's former name or names, new name, and current address. The clerk of the court shall spread the order upon the current deed book in his office, index it in both the old and new names, and transmit a certified copy of the order and the application to the State Registrar of Vital Records and the Central Criminal Records Exchange….

There is an exception to § 8.01-217(F), which allows the Court to seal the name change records and prevent the name change order from being indexed and transmitted to state agencies. Virginia Code § 8.01-217(G) reads:

If the applicant shall show cause to believe that in the event his change of name should become a public record, a serious threat to the health or safety of the applicant or his immediate family would exist, the chief judge of the circuit court may waive the requirement that the application be under oath or the court may order the record sealed ….

The General Assembly clearly intended a petitioner to request the sealing of name change records at the time of the petition. [Statutory construction details omitted. -EV] … In the present case E.B.M. is not an "applicant." She won her name change petition almost ten months ago. Her change of name is already a public record and the Court already spread and indexed the name change Order. The Clerk already transmitted a certified copy of the Order to the State Registrar and the Central Criminal Records Exchange. Thus, E.B.M. lacks standing as an "applicant" and is seeking to prevent things that have already happened.

The General Assembly could grant the Court power to expunge name change orders already indexed and transmitted but has not done so. Without this authority, the Court lacks the power to claw back records already transmitted to the State Registrar of Vital Records and the Central Criminal Records Exchange….

Independent from Virginia Code § 8.01-217(G), the Court lacks active jurisdiction to reopen the final order granting E.B.M. her name change petition. [Under Virginia law, t]he Court lost jurisdiction over that final order 21-days after entry…. Even if the Court had authority to seal name change orders more than 21-days after entry, the Court finds Petitioner failed to allege or proffer a "serious threat" to her health or safety to justify sealing the record.

E.B.M., in her Motion to Seal Change of Name, stated that she wanted to prevent "potential endangerment and/or discrimination through publicly disclosed record of the transgender applicant." At the July 21, 2023, hearing on her motion she amplified her reasons to include concerns due to her political activism. However, and fortunately, she did not cite a single specific or particularized fear that would justify sealing the name change records. She only pointed to generalized and imagined future fears or harms. She implicitly asks the Court to amend the statute to replace the phrase "serious threat" with "a generalized concern." The Court must apply the law as is written, however….

Note that the court used E.B.M.'s initials in the caption of the opinion at E.B.M.'s request, but noted that "[t]he record is not sealed." This likely avoids any violation of the public right of access, since the public can indeed determine E.B.M.'s name from the record, given that the opinion cites the case number—just not from the text of the opinion itself.