Metro Weekly

‘Trans people have right to privacy’ rules New Jersey appeals court

Unanimous decision challenges now-defunct statute requiring trans individuals to publicize their requests for name changes.

new jersey
Trans Pride flag – Photo: Ted Eytan – Flickr

Earlier this month, a New Jersey appeals court unanimously ruled in favor of a transgender man who sought to keep his name change private, finding that transgender individuals deserve privacy and protection from the emotional and physical harm that could come from publicizing their name changes.

The case came before the appeals court following a 2020 ruling by Mercer County Judge William Anklowitz, who ruled that the transgender man, identified in court documents as “A.B.C.,” must take out an ad in a newspaper explaining his intent to change his name and publishing his “dead name,” based on an outdated statute that has since been overruled by the New Jersey Supreme Court.

The man had originally asked for his court records to be sealed, which would have prevented his name and identity from being made public. But Anklowitz said that A.B.C. should have to prove he’d experience violence or discrimination because of his gender identity in order to justify sealing the records.

However, during the time that A.B.C. was appealing Anklowitz’s decision, the New Jersey Supreme Court upended the statute in December 2020, eliminating the requirement that name change applications and judgments be published. A.B.C.’s lawyers asked Anklowitz to reconsider the decision based on the Supreme Court decision, but he refused to amend his ruling. 

Writing for the unanimous three-judge appellate panel, Superior Court Judge Michael Haas write that transgender individuals are entitled to privacy in order top protect them from harm that can stem from the publication of their name change applications, and that Anklowitz was wrong to discount A.B.C.’s fears about allowing the court records to be made public. The court also stated that the information that would be disclosed by making the application for a name request public was a “‘purely private matter’ with no meaningful public interest.”

“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,” Haas wrote. “By requiring the appellant’s name change application to be publicly available, and thereby publicly identifying appellant as transgender, the court would violate appellant’s right to privacy and could heighten the risk of physical harm to appellant, or even facilitate such harm by making it easier for people to identify him as transgender.”

Advocates for the transgender community have long argued that the publication requirement — which still exists in many states — involuntarily outs transgender people, making them prime targets for harassment, discrimination, and even violence. Additionally, many transgender people do not necessarily have the money required to take out an ad announcing the name change in a newspaper or multiple newspapers — which may lead to further delays.

Lynda Bennett, the chair of Insurance Recovery Group and a partner at Lowenstein Sandler LLP, the firm that represented A.B.C. in conjunction with the Transgender Legal Defense & Education Fund, told Metro Weekly in an interview that the legal standard at issue was whether A.B.C. had to provide individualized evidence that he had been could be subject to violence, discrimination, or harm, or whether it would be sufficient to show generalized harm to the transgender community.

“Part of what was behind the court’s decision, the argument that we were making in our amicus brief [to the appellate court], was to ensure that landlords couldn’t discriminate against trans people, that employers couldn’t discriminate, that educational institutions can’t discriminate, because if this type of a name change application is not sealed, then anyone who has access to the internet can ‘silently discriminate’ against the trans community,” Bennett said.

She also noted that the appellate court’s decision to publish its ruling indicates that the court wants the ruling to be seen and heard and relied upon when future cases involving similar issues like privacy and transgender rights arise.

I think that the case has broader reach,” Bennett added. “It’s not binding precedent in other states. However, it really is at the forefront of protecting privacy rights in the transgender community. I would also say that the very detailed opinion that was issued and some of the specific language used about why it is important to protect these privacy rights, and the detailed analysis the court engaged in is something that will will help pave the way for courts in other states to to review it and consider it and hopefully come to the same conclusion.”

Asked about how she’d respond to strict constitutionalists who might argue that there is no enumerated right to privacy under the law, Bennett pushed back against that contention.

“I would counter that there is something called equal protection and due process rights in the Constitution that that certainly lay the groundwork for this type of a decision,” she said. “And, just personally thinking about something of this nature, I don’t see the government having the right to regulate and tell you what to do or how to be or how to live.”

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