Punitive State Laws Are Outing Trans People With Felony Convictions

In Illinois and Wisconsin, laws restricting post-incarceration name changes are leaving trans people with government IDs that don't align with their gender identities.
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People take part in a rally for trans rights outside the Stonewall Inn in February of 2017.

People take part in a rally for trans rights outside the Stonewall Inn in February of 2017.

Eight transgender women have filed federal lawsuits in Wisconsin and Illinois over restrictions in both states that prevent individuals with felony convictions from applying to have their chosen names appear on government documents.

Filed on May 1st, the suits name Cook County, Illinois, and Kenosha County, Wisconsin, as defendants, and claim that the plaintiffs—all of whom have past criminal convictions—have been personally impacted by the punitive laws, which infringe upon the women's "fundamental rights of speech, self-expression, liberty, and due process under the First and Fourteenth Amendments."

The complaints detail a litany of abuses the eight women have had to endure as a result of being habitually "outed" when forced to present forms of government identification that do not align with their chosen names and gender identities. In some instances, the suits allege, the women have been unable to hold steady, long-term employment as a result of their name discrepancies; in others, they have been denied hospital care and services because workers do not believe that they are the person listed on their identification.

One of the plaintiffs, Keisha Allen, describes in the complaint two separate occasions during which she was physically assaulted on a job site as a result of being outed as a transgender woman, both of which culminated in her leaving the job in order to "seek employment where she could feel safe."

By and large, state laws are a patchwork when it comes to name change restrictions: While 13 states do not require any disclosure of criminal history in order to file a criminal name change request, 28 states require that former felons submit to a criminal background check in order to apply for name change status, and nine states, including Illinois, have even more restrictive laws on the books for former felons, probationers, and parolees.

Considered the most restrictive name change law in the country, the Illinois Name Change Statute prevents individuals that have a felony conviction in any state from petitioning to change their legal name in Illinois until 10 years after the date that they finished their sentence. (Certain misdemeanor or felony convictions can result in an individual being barred for life.) The law was proposed in 1993 as a two-year waiting period for name change requests, initially conceived of as a preventative measure to ensure that people with criminal convictions would not try to dodge their various post-incarceration registration requirements, including listing themselves on sex offender registries or reporting to local police departments. In 1996 the law was expanded to the 10-year waiting period that still exists today, and, according to legal experts, had begun to sweep up all felony convictions—including those with no registration requirements—in its dragnet.

A law in Wisconsin, where one of the eight plaintiffs currently resides, prohibits registered sex offenders from submitting legal name change requests, by penalty of up to six years in prison.

Arli Christian, state policy director at the National Center for Transgender Equality, says that the name change restriction guidelines are "misguided" in their scope, since an individual's right to request a legal name change is already fairly well protected under existing law.

"Policies like the ones in Wisconsin and Illinois are essentially barking up the wrong tree to try to solve a problem," Christian says. "They are not logical; they're discriminatory and unnecessary. It's absolutely a civil rights issue."

Lark Mulligan, an attorney at the Illinois-based Transformative Justice Law Project who is representing the plaintiffs along with the law firm Greenberg Traurig, says that rules that leave individuals with government-issued IDs that inaccurately reflect their gender expression are "creating an unsafe situation for potentially thousands of trans people in Illinois."

"Trans people are already facing astronomical rates of discrimination, harassment, and violence in society, already being discriminated against for jobs and housing and public benefits based on their gender expression," Mulligan says. "And then they're being forced to live with a government-issued ID that inaccurately represents their actual gender identity."

Mulligan, who has been working with Transformative Justice Law Project for nearly a decade, says that attorneys with the organization have been hosting what's known as the Name Change Mobilization Project on the last Friday of the month for the past eight years in Illinois. The event is designed to provide an avenue for trans people to apply for legal name changes—but, each month, Mulligan says, the Project is forced to turn some people away due to criminal convictions.

"Our names are often gendered, and so the process of choosing a new name is deeply personal and a big part of gender identity formation for a person," Mulligans says. "They're kind of reclaiming one's own identity, one's body, and asserting a person's humanity in the world.

Statistically, the transgender community is subjected to disproportionate levels of targeting and harassment by police, often because, due to a variety of other factors, its members are often forced out of formalized, above-ground economies. Because trans people—and trans people of color in particular—are more likely to be criminalized, Mulligan says, they are also, in effect, more likely to be confined by name change restrictions.

"It's often not something that someone is advised of when someone is accepting a plea deal for a criminal charge," Mulligan says. "Many people might plead guilty to felony charges and then find out only later on that they're unable to change their legal name."

In 2015, the first and only national transgender survey was conducted in the interest of more faithfully capturing the lived experiences of the 27,715 respondents. Among the people surveyed who had reported showing an ID document with a name or gender that did not reflect their gender presentation, 25 percent reported being verbally harassed, 16 percent reported being denied services or benefits, 9 percent were asked to leave a location or establishment, and 2 percent were assaulted or attacked.

Those staggering numbers "show that the effect is very severe for folks who are trying to go about their daily lives and live and work and exist in this world," Christian says. "Telling an individual that they can't have the name that matches who they are is against all of our public interest, in terms of creating a world where people can thrive."

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