Barriers To Changing Legal Names And Gender Markers In Prison

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Above Photo: California’s SB 310 could ease some of the challenges facing trans people in prison, such as a legal name change. (Photo: steinphoto / iStock / Getty Images Plus)

During her 30 years in California’s prison system, Cookie Bivens has seen numerous trans women attempt to change their name and gender marker while incarcerated. Not a single woman ever succeeded.

In California, people seeking to legally change their name or gender marker must file an application with the county court and pay a filing fee of nearly $500. (A person earning less than $2,127 per month can file for a fee waiver.) Once the paperwork is filed, the court sets a hearing date within six to 12 weeks. If the court receives no objections to the proposed name and gender marker change, the petition is granted.

Incarcerated trans people face an extra hurdle: obtaining approval from the prison’s superintendent and other administrators. Without that approval, they cannot begin the court process. Watching other trans women have their requests denied again and again, Bivens decided to not even try, and to focus instead on getting parole.

Bivens has been out of prison for six months and is only now beginning the process of legally changing her name and gender marker. At the same time, she wants to be sure that other trans people have the opportunity denied to her and the women with whom she served time. To do that, she’s pushing for the Name and Dignity Act, or SB 310, to remove the additional hurdles that incarcerated people face when attempting to change their names and gender markers. She’s not the only one. In California, organizations that support incarcerated trans people have formed a coalition to push legislation that benefits trans and gender nonconforming people behind bars. This year, the coalition, which includes Bivens, is throwing its support to pass SB 310, authored by Sen. Toni Atkins (D-San Diego).

Fighting for Dignity — Inside and Out

“In prison, we should have the right to change our names,” Bivens told Truthout. “It gives us dignity.”

While incarcerated, Bivens encountered prison staff who referred to her by her legal (male) name. “It was a way to humiliate and degrade you,” she recalled. “It just makes you feel less than human.”

Janetta Louise Johnson is the executive director of the TGI Justice Project, an organization supporting trans, gender variant and intersex people both in and out of California prisons. She also understands firsthand how names have power — and how being called a male name can be degrading and dehumanizing for trans women, and can also cause fear and anxiety.

Recalling her own time awaiting trial in the San Jose County jail, she explained that jail staff routinely called people by their last names. But if the person was a trans woman, staff would instead call them by their legal first name. “If your legal name was Frederick Douglass, they would call you Frederick,” she said.

Not only was calling a trans woman by a male name “a way of agitating and taunting people,” explained Johnson, but it could often be a precursor to physical violence. “When you use male names for trans women, outside of prison but also in prison, it usually is followed by an attack or an attempt to harm.” Even when no physical violence followed, being called a male name was often triggering.

Determined to stop the practice, Johnson wrote a letter to Judge Charles Breyer of the US District Court, who was presiding over her case. She told him about the practice and explained how it traumatized trans women. “I told him how I always felt under attack, how it put me on the defensive and caused me anxiety and panic attacks.” The judge responded by warning the jail that if staff continued to misgender and misname the trans women in custody, he’d make sure that their contract to house (and be paid for) federal prisoners was pulled. The practice stopped.

This isn’t a practice limited to California. Rev. Jason Lydon is the director of Black and Pink, a national organization that works with incarcerated LGBTQ people across the country. “Trans women are intentionally called by their legal first name,” he told Truthout. “Or they’ll call her Mr. + the last name just to be an asshole.” In contrast, when speaking to a cisgender person in custody, Lydon notes, prison and jail staff do not refer to that person as “Mr.” or “Ms.”

The Name and Dignity Act won’t stop staff members from using the wrong name, gender pronoun or salutation for trans people incarcerated in California. What it will do is remove the additional barriers that incarcerated trans people face when attempting to change their names and gender markers, giving them the same access to the court process as people who are not incarcerated. It also smooths the rocky road of reentry.

Bivens was fortunate to get a job with TGI Justice Project, enabling her to avoid questions about why the name and gender on her identification don’t match her gender presentation. But, say Johnson and Bivens, many trans women aren’t as lucky. “One of our members told us she did not apply for jobs because she was afraid an employer would expect someone looking different at an interview due to her ID documents,” Johnson told legislators.

Being both trans and formerly incarcerated have thrown up various roadblocks in that search for a place called home. “If they’re not transgender friendly, you don’t get [the housing],” Bivens said. Added to that, she must also explain her lack of credit history, which means revealing her 30-year incarceration. Bivens has interviewed for several sublets; she’s been turned down for each and every one of them. Bivens is currently staying with friends while continuing her search for more permanent housing.

Trans People Behind Bars Face Challenges to Changing Names or Gender Markers

The process for changing one’s name and gender marker vary from state to state. In some states, incarcerated trans people don’t need to seek permission from prison administrators before filing with the courts. In Massachusetts, for instance, incarcerated people can petition for name changes in family court without waiting for jail or prison approval.

Changing the gender marker on identification is a more involved process requiring a letter from a medical professional or social worker attesting that the applicant’s gender marker should be changed. The letter need not be long or detailed; it can simply state, “This person has GID or gender dysphoria. They have transitioned their gender and the appropriate gender marker should be F.”

For those inside prison or jail, obtaining such a letter can be difficult. But, says Rev. Jason Lydon, while name changes are a top priority, changes to gender markers have not been a pressing issue for people returning home in Massachusetts.

This might be because Massachusetts has anti-discrimination laws that prohibit discrimination based on gender identity. Laws prohibit denying a trans person access to housing or homeless shelters. Both public and private programs that receive funding from the Department of Health are also prohibited from denying entry to trans women. “That doesn’t mean discrimination doesn’t happen, but the law gives you some tools to fight back,” Lydon says.

But, he adds, just because currently and formerly incarcerated people have not identified changes to gender markers as a priority does not mean that it’s unimportant. “We are all coerced to have state IDs,” Lydon said. “Having one that affirms some aspect of your identity is important. Prisoners should not need to demand that for that to happen.”

Other states require more time, effort and money. In New York, there is no court process for a gender change. Instead, a person must go to each individual agency separately and comply with its rules for changing or correcting a gender marker. There is, however, a court process for name changes, which requires an original birth certificate. Applicants with criminal records are required to submit either a certificate of disposition for each conviction from the court or a current rap sheet.

For people incarcerated in New York State prisons, all of these same requirements apply. But prisons do not allow people to keep their birth certificate while incarcerated, so many must try to obtain a copy, which costs $30. For people earning a fraction of minimum wage at a prison-assigned job, that cost alone can be a barrier. Then there’s the filing fee which, in many upstate counties where prisons are located, is $210.

The Sylvia Rivera Law Project (SRLP), which works with incarcerated trans and gender nonconforming people, has found that many counties will not waive the fee for incarcerated people. Mik Kinkead, SRLP’s staff attorney and director of its Prisoner Justice Project, is currently working with 30 people on name changes. The Project not only helps people navigate the court process and obtain necessary documentation, but also covers the costs. It’s an expense that takes up one-third of the Prisoner Justice Project budget, but is the only way that many behind bars would be able to change their names.

Even then, the process is not necessarily quick or easy. Kinkead estimates that he files four to six petitions in a six-month period; most of that time is spent waiting to obtain a certified birth certificate in order to complete the court petition. One client, he told Truthout, filed her petition three years ago; only recently did she receive her birth certificate. She is now waiting to be placed on the court’s special calendar for name changes. Even then, she may not have her name changed immediately; the judge might require additional information, which takes more time to gather.

Another client was never issued a birth certificate. The Office of Vital Records sent a certificate of no certificate, which certifies that no birth certificate was ever issued. The judge initially refused to believe it, delaying the process even more and requiring a back-and-forth conversation. The woman, who filed for a name change in December 2015, is still awaiting a decision. “Had she not been in prison and had she been in New York City, she could have gotten this done within a week,” Kinkead said. But even if an applicant lived in New York City before incarceration, they must file their petition in the county of the prison.

In Louisiana, however, people who are in prison, on parole or probation are not allowed to legally change their names until they complete their sentence. People who have violent felony convictions are ineligible for name changes even after completing their sentences.

Nicholas Hite is an attorney with the Hite Law Group, a New Orleans law firm that specializes in working with the LGBTQ community. He works with people who are trans and have criminal convictions that exclude them from changing their names. However, their convictions do not preclude them from changing their gender markers, which is a whole other process requiring that an applicant have had surgery. “On top of the surgery, there’s the added cost of the court process,” he said. In contrast to changing one’s name, which may not even require a hearing, a person seeking to change their gender marker must go to trial, which means paying for an attorney. Depending on the parish, court filing fees cost between $250 to $700. For those who no longer live in that parish (or in Louisiana), they must take time off from work, travel to that parish and stay in a hotel during the trial. “The cost is immense, the time it takes is immense,” noted Hite, pointing out that the people most likely to be stopped and profiled by law enforcement are often the people who cannot afford these costs. But, he notes, having the changed gender marker on a birth certificate and state identification can provide some modicum of safety even for people targeted by law enforcement. Police often rely on the gender in a person’s birth certificate to determine what facility to place a person in; for a trans woman who has gone through the process of legally changing her gender marker, she’s more likely to be placed in a women’s facility, thus decreasing her risk of violence and abuse.

Even for people able to have their names changed, the cost can be prohibitive. In New Orleans, the filing fee is $504. Because the court considers changing one’s name an elective process, the fee is not waivable. In addition, applicants must submit copies of documents, such as their original birth certificate. If they do not have these documents, they must pay to obtain them.

Shortly after the 2016 election, BreakOUT!, a New Orleans organization that works with criminalized LGBTQ youth, held two legal clinics where attorneys answered questions about name changes, gender marker changes, immigration and expungement of criminal records.

BreakOUT! also launched a Trans Defense Fund to help 30 members change their legal names (as well as two gender changes), including covering the costs of filing fees and related expenses. Changing one’s name removes “a big barrier to employment,” said BreakOUT! co-director Wes Ware. “Now they are able to show their identification that matches their name.” Ware points out that given the heightened policing of trans and gender nonconforming people, having the name on identification match the name that they give an officer removes the threat of being charged with “misrepresentation to law enforcement,” a charge that many members have encountered in the past. “It’s one more way for people to be a little bit safer in our current political climate,” said Ware.

How Many People Affected?

According to the California Department of Corrections and Rehabilitation (CDCR), there have been approximately 589 requests for name changes since 2012. However, the department does not collect data about the number of requests that were denied or approved. It also does not track how many requests were for a name change to reflect the applicant’s gender identity. In other words, no one knows how many imprisoned trans people have tried to change their names.

This shouldn’t be surprising, given that no government agency tabulates the number of transgender, intersex or gender-variant people behind bars. The Bureau of Justice estimates that, between 2011 and 2012, there were 3,209 trans people incarcerated in state and federal prisons and another 1,709 trans people in local jails. According to California’s prison medical data, at least 400 people in California’s prison system are receiving hormone treatment.

In January and February, TGI Justice Project sent a survey to 40 of its incarcerated members. All had started the process of changing their names by writing a memo to the prison superintendent. “That’s where the gatekeeping begins,” explained Kelly Lou Densmore, TGI Justice Project’s staff attorney.

Of those 40 members, 10 received denials. The reason given was “safety concerns” with no further explanation. One trans woman received approval and recently completed the process of legally changing her name (though her gender marker remains M). The other 29 have yet to receive a response. “There’s no requirement for the warden to give a response at all,” said Densmore. That means that those 29 applicants may stay in legal limbo until their release date. Then, on top of fulfilling parole requirements and searching for employment and housing, they will also have to navigate the legal process to change their names and gender markers.

SB 310 has already passed the Senate and, on June 27, passed the Assembly Judiciary Committee. It continues on to the Committee for Public Safety on July 11. From there, it will go to the Appropriations Committee, then to the full Assembly for a vote.

Though Bivens won’t benefit from the Act, she is hopeful that it will make a huge difference for other trans people in prison. “The Name and Dignity Act makes us more dignified,” she said. “It gives us more opportunities for work, housing and navigating society. To have that process done more easily while in prison helps both us and society as a whole. It builds everyone up.”