[Pnews] Trans People in Prison Fight Barriers to Changing Their Legal Names and Gender Markers

Prisoner News ppnews at freedomarchives.org
Tue Jul 11 15:44:47 EDT 2017


  Trans People in Prison Fight Barriers to Changing Their Legal Names
  and Gender Markers

Victoria Law - July 11, 2017

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 <http://www.courts.ca.gov/documents/fw001.pdf>.) 
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 <http://www.tgijp.org/mission-and-staff.html>, 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 <http://www.blackandpink.org/>, 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 

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 

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 
<https://srlp.org/resources/namechange/>, 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 <https://srlp.org/> (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 
<http://law.justia.com/codes/louisiana/2014/code-revisedstatutes/title-13/rs-13-4751> until 
they complete their sentence. People who have violent felony convictions 
<https://legis.la.gov/Legis/Law.aspx?d=78337> are ineligible for name 
changes even after completing their sentences.

Nicholas Hite is an attorney with the Hite Law Group 
<http://www.hitelawgroup.com/>, 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 
<http://lgbtccneworleans.org/change-name/>. 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! 
<http://www.youthbreakout.org/>, 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 
<https://www.bjs.gov/content/pub/pdf/svpjri1112_st.pdf> 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."

Freedom Archives 522 Valencia Street San Francisco, CA 94110 415 
863.9977 www.freedomarchives.org
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