Comment on Auto Sealing on Name and Gender Change Petitions
SUMMARY
The LGBTQ+ Rights Committee submitted comments in support of the Office of Court Administration’s proposal to amend 22 NYCRR §§ 202.5(e) & 207.4(b), which would require trial court clerks to automatically seal and anonymize any application seeking a change of name or change of sex designation upon filing pursuant to Civil Rights Law Art. 6, and Civil Rights Law Art. 6-a. The committee supports the amendments “as a crucial tool to protecting the privacy, safety, and dignity of people who seek assistance from our courts for justice.” Currently, under Civil Rights Law § 64-a(1), courts are required to seal a name change proceeding on request of an applicant or sua sponte where “open record of an applicant’s change of name would jeopardize such applicant’s personal safety, based on totality of circumstances,” and courts seal records for sex designation changes in a similar fashion. “Nonautomatic sealing processes leave room for discretion in sealing proceedings, and needlessly leave records discoverable. The proposed amendments provide powerful protection for transgender, nonbinary, and gender-nonconforming New Yorkers, who are often vulnerable to discrimination, harassment, stigmatization, and violence based on their gender identity.”
REPORT
Submitted via email
David Nocenti, Esq.
Counsel
NYS Office of Court Administration
25 Beaver Street, 10th Floor
New York, NY 10004
rulecomments@nycourts.gov
RE: Public Comment in Support – Proposal to amend 22 NYCRR §§ 202.5(e) & 207.4(b) in relation to sealing of name and sex designation change proceedings in order to ensure petitioners’ confidentiality.
Dear Mr. Nocenti:
The LGBTQ+ Rights Committee of the New York City Bar Association (“The Committee”) addresses legal and policy issues in legal institutions and in the court system that affect lesbian, gay, bisexual, transgender and queer individuals. We have issued reports in favor of proposals to expand LGBTQ rights and have opposed proposals that would increase opportunities for discrimination. The Committee is composed of a diverse group of law students and attorneys from private practice, the corporate sector, public interest, government, and academia.
The Committee submits these comments in response to the memorandum of David Nocenti, Counsel to the Office of Court Administration, dated July 19, 2024, proposing to amend 22 NYCRR §§ 202.5(e) & 207.4(b) which would require trial court clerks to automatically seal and anonymize any application seeking a change of name or change of sex designation upon filing pursuant to Civil Rights Law Art 6, and Civil Rights Law Art. 6-a.[1]
I. EXECUTIVE SUMMARY OF THE LGBTQ+ RIGHTS COMMITTEE’S SUPPORT
The LGBTQ+ Rights Committee enthusiastically supports the aforesaid amendments as a crucial tool to protecting the privacy, safety, and dignity of people who seek assistance from our courts for justice. Currently, pursuant to Civil Rights Law § 64-a(1), courts are required to seal a name change proceeding on request of an applicant or sua sponte where “open record of an applicant’s change of name would jeopardize such applicant’s personal safety, based on totality of circumstances.” Similarly, courts seal records for sex designation changes either by request of an applicant or sua sponte.[2] Nonautomatic sealing processes leave room for discretion in sealing proceedings, and needlessly leave records discoverable.[3] The proposed amendments provide powerful protection for transgender, nonbinary, and gender-nonconforming New Yorkers, who are often vulnerable to discrimination, harassment, stigmatization, and violence based on their gender identity.
II. SECURITY AND DIGNITY
Transgender, gender-nonconforming, and nonbinary people encounter disparate treatment from the state and from individuals for merely living as their authentic selves. While New York has made strides in becoming safer for transgender, gender-nonconforming, and nonbinary people, these communities cannot live authentically if they cannot align their gender identity with their legal name and legal gender designation without publicly airing this change. Court documents are public documents, and the lack of a uniform and automatic process to seal name and gender designation applications can expose petitioners to the risk of being outed. This nonconsensual exposure related to their gender identity can increase the likelihood that these communities will be subjected to harassment, stigmatization, or discrimination in healthcare, employment, or housing. Due to discrimination, these communities already encounter higher rates of poverty, criminalization and unemployment than the general population,[4] and forced outing through unsealed or discoverable court records can only exacerbate these dynamics. Transgender, gender-nonconforming, and nonbinary community members with intersecting identities, including people of color and people living with disabilities, are often at elevated risk for these inequities, and they are disproportionately targets of violence.[5]
Currently, individuals are vulnerable to private entities aggregating and publishing prior names (“deadnames”), prior gender designations, and other personal information.[6] It is important for individuals to control when or whether they disclose their gender identity – not only to prevent discrimination and violence, but also to prevent harassment. “Deadnaming” refers to calling a transgender person by their previous name, particularly when it does not correspond to the person’s gender identity. Intentional and malicious deadnaming is often done to invalidate or undermine a person’s gender identity. It can also be done, or threatened, as a means of exposing a person to danger. These actions can cause psychological distress and harm to the target of deadnaming, as well as expose people to danger.[7]
While automatic sealing will not immediately alleviate the social ills of discrimination towards transgender, nonbinary, and gender-nonconforming people, removing a tool of outing (unsealed or discoverable records) can significantly improve a community member’s ability to live safely – or to live at all.
III. ADMINISTRATIVE CONVENIENCE AND EQUITABLE SEALING
The amendments would simplify the legal process by establishing a clear standard to ensure records are sealed automatically, in every case. This process would eliminate the need for individual petitions for confidentiality, thus requiring fewer administrative resources from the courts. Importantly, automatic sealing would guarantee all community members access to this significant and potentially lifesaving benefit, regardless of wealth or access to significant legal resources.
Accordingly, the LGBTQ+ Rights Committee emphatically urges the adoption of the proposed amendments.
Respectfully,
Hayley Gorenberg, Co-Chair
LGBTQ+ Rights Committee
Jared Trujillo, Co-Chair
LGBTQ+ Rights Committee
Footnotes
[1] A copy of the proposal is available at https://www.nycourts.gov/LegacyPDFS/rules/comments/pdf/requestforpubliccomment-name&sexdesignationchange-071924.pdf (All websites last accessed on Aug. 27, 2024).
[2] New York Civil Rights Law § 67-b(1).
[3] See Memorandum of David Nocenti, Esq., Counsel to the Office of Court Administration, dated July 19, 2024, proposing to amend 22 NYCRR §§ 202.5(e) & 207.4(b), supra n. 1. “Full confidentiality requires an anonymized caption, which is critical to preventing e-filed matters from being “scraped” and/or otherwise aggregated and reproduced on private websites. Presently this is achieved through commencing a name and/or sex change application by Order to Show Cause, requesting anonymization along with sealing as preliminary interim relief. However, as noted by the Third Department in Cody W v. Brandi W, 226 A.D.3d 24 (3d Dep’t 2024), ‘not all counsel or self-represented litigants will be either aware of this alternative procedure or readily able to proceed in that matter.’”
[4] Fredriksen Goldsen, K. I., Romanelli, M., Hoy-Ellis, C. P., & Jung, H. (2022). Health, economic and social disparities among transgender women, transgender men and transgender nonbinary adults: Results from a population-based study. Preventive medicine, 156, 106988. https://doi.org/10.1016/j.ypmed.2022.106988.
[5] Ryan Thoreson (2021). “I Just Try To Make it Home Safe:” Violence and the Human Rights of Transgender People in the United States. Human Rights Watch. Available at: https://www.hrw.org/report/2021/11/18/i-just-try-make-it-home-safe/violence-and-human-rights-transgender-people-united.
[6] See supra note 2.
[7] Amanda Dumsch, Understanding the Impact of Misgendering and Deadnaming (July 21, 2023). National Institutes of Health. Available at: https://oitecareersblog.od.nih.gov/2023/07/31/understanding-the-impact-of-misgendering-and-deadnaming#:~:text=For%20transgender%20and%20non-binary,trans%20violence%20and%20unsafe%20experiences.