By Ellen S. Fischer, Esq. and Erica N. Briant, Esq.
There are 67 counties in Pennsylvania, and each county has its own rules for deciding when and whether it is appropriate to waive the publication requirement when filing a Petition for Name Change.
The law is clear. Anyone can change his or her name provided it is not done for fraudulent reasons.
To show that the name change is not for fraudulent reasons, the law requires that notice of the filing of the petition be published in two general circulation newspapers. This is notice to the world, i.e., to creditors mostly, that any claim against the petitioner could be lost if action is not taken forthwith.
Importantly, when the law was adopted, there was an affirmative acknowledgement that publication could result in harm to the petitioner. Because of this, the law specifically allows for waiver of the publication. Under 54 Pa.C.S. §701(a.1)(3)(iii), the court has the authority to waive publication “If the court finds that the notice required in subparagraph (ii) would jeopardize the safety of the person seeking the name change … ”
Once the court makes the determination that safety is an issue, “ … the notice required shall be waived by order of the court … and the court shall seal the file.”
Safety is a major issue for transgender people. The National Center for Transgender Equality released a report in 2015 showing the results of a national poll of 28,000 transgender people. Nearly one in 10 respondents said they were physically attacked in the last year because of being transgender, and transgender women of color were four times as likely as other transgender people to have been attacked with a gun.
More recently, according to a report from the Human Rights Campaign, in 2017 more transgender people were killed than in any year in at least a decade, and 2018 saw an uncomfortable uptick in violence against trans people. It is likely that the 2018 murder rate of trans people, and trans women of color in particular, will exceed that of 2017. In September 2018, Shantee Tucker, a black transgender woman, was murdered in Philadelphia, becoming the 21st known transgender person killed in the United States in 2018. (Philadelphia Inquirer, article by Anna Orso, 9/26/18) Sadly, Shantee was the third black trans woman murdered in the U.S. that week.
The Transgender Legal Defense & Education Fund Inc., in its Name Change Project Attorney Handbook for Allegheny County, PA, suggests that a waiver petition include information “based on objective evidence that transgender individuals generally are vulnerable to high rates of violence, harassment, and abuse … and that the client may experience discrimination based on his or her transgender identity in housing and employment in the future … [T]o support the fact that transgender individuals are subject to high rates of violence and abuse, we have relied on (and attached to the motion) the following studies: (i) Rebecca L. Stotzer, Violence against transgender people: A review of United States data, Aggression and Violent Behavior 14 (2009) 170- 7939; and (ii) the Executive Summary of the 2015 U.S. Transgender Survey, released on Dec. 8, 2016, which is the largest survey ever devoted to the lives and experiences almost 28,000 respondents.”
Unfortunately, many of our judges fail to give weight to this disproportionate violence against transgender people as compared to the rights of creditors and refuse to waive publication. According to one judge, waiver is an issue because trans people are just as likely to have credit issues as anyone else. This ignores the other side of the balancing test: trans people may be just as likely to have credit issues, but they are dramatically more likely to be the victims of interpersonal violence, as detailed above.
To the extent possible, it is important for petitioners to detail whatever harassment or threats of violence they have been personally subjected to in their petitions. When clients say they have been fortunate and have not experienced harassment or harm, urge them to think very hard about this. Perhaps the client was with a trans friend who experienced harassment and/or violence. Perhaps the client heard a story that causes considerable concern. In other words, any fact that can be personalized to the petitioner may be helpful.
Our Experiences in Southeastern PA
We work in the five county Southeastern Pennsylvania area, which includes Philadelphia, Montgomery, Bucks, Chester and Delaware counties. We want to share what we have learned about each county’s transgender name change practices based on our own experiences.
Montgomery County is likely the least friendly county. For several years, minor name change petitions were denied as a matter of course, even if both parents agreed. For additional coverage of a past name change denial, see the Philadelphia Gay News, “Judge denies name change for trans youth” (Mar 2, 2016). Although more recently, it has been more likely that the waiver and name change will be granted, Ellen continues to experience challenges. Just over a year or so ago, Ellen presented a minor’s name change petition and waiver request. A minor client, his divorced parents, both sets of grandparents, his sibling and therapist all came to court. Before the start of the hearing, Ellen was called into chambers. The judge told Ellen he was not inclined to grant the request and suggested that the hearing be delayed pending the client’s puberty! When she explained that the client was on medication to prevent puberty, he tried to find another reason. She finally told the judge that he was being discriminatory and that she would appeal if the petition was not granted. The petition was granted, but this goes to show the complete lack of understanding in many court systems.
Name changes for trans adults in Montgomery County are very challenging. Once the petition and waiver are filed, a hearing solely on the waiver petition is held. We have heard horror stories about abuse and harassment suffered by clients whose waiver request has been denied. One petitioner with a present protection from abuse order had her waiver petition denied. Some clients may choose to withdraw their name change petition after this denial of waiver.
Philadelphia is a much friendlier county. The petitions and waivers are filed simultaneously and are almost routinely granted. One waiver petition was denied because the client testified that he had absolutely no concerns about publication.
Bucks County will likely agree to waiver but may first require a full hearing in open court where the judge may want a recounting of the reasons for waiver and the reasons for the name change. It can be a bit uncomfortable. The petitions are filed together and are heard simultaneously. Lawyers who have shared their experiences have told me they are not aware of any petitions being denied but always make sure their clients are well prepared to testify to the need for waiver and the reasons for the name change. Petitioners are responsible for providing judgement searches from the recorder of deeds and clerk of courts. Contact the recorder of deeds well before the hearing so the search is ready on the morning of the hearing. The clerk of courts search can be completed before the hearing without advance notice.
In Chester County, name change and waiver petitions are filed together. Occasionally waiver petitions are granted without a hearing, especially if there is a PFA or other documented history of abuse. If a hearing is required on the waiver, that hearing is in addition to and before the hearing on the name change petition itself. Because name change and waiver hearings are frequently scheduled with the miscellaneous civil and PFA lists, the courtroom is often full. Consider including more detail in the initial petitions – doing so may allow the judge to decide on the petitions without subjecting the petitioner to testifying about deeply personal and potentially traumatic events before a large audience. Petitioners are responsible for providing judgement searches from the recorder of deeds, clerk of courts, Orphan’s Court and register of wills. All can be picked up on the morning of the hearing, but the recorder of deeds must be contacted in advance of the hearing to ensure the search is prepared.
In Delaware County, name change and waiver petitions are generally filed and heard together, with the name change granted at the hearing as long as the waiver petition is first granted. If the waiver petition is denied, a second hearing will be scheduled to allow the petitioner to publish if they choose to proceed with the name change. In recent months, name change hearings in Delaware County have been scheduled along with the adoption list, and each case is heard one at a time, allowing for a calmer and less stressful experience.
The name change process can be onerous and stressful, especially for petitioners who fear for their own safety. If you are interested in learning more about how to represent clients throughout the name change process, consider volunteering for your local Legal Services organization. It is a particularly rewarding opportunity; clients are frequently incredibly happy and relieved at the end.
As seen in Open Court Magazine – March 2019