“That Name Is Dead to Me”: Reforming Name Change Laws to Protect Transgender and Nonbinary Youth

Sarah Steadman* September, 2021

Abstract

Content warning: this Article discusses suicidality.

For transgender and some nonbinary youth, living under a chosen name is a first step toward becoming their authentic selves. For these youth, a name change is powerful; it allows them to choose a name that matches their gender identity. They consider their birth name to be a distressing “dead” name—one that they cannot relate to and need to bury.

Using one’s chosen name decreases suicidality among transgender youth who face many challenges, including family rejection and other severe mental health stressors. Transgender and nonbinary youth can only require others to use their chosen names after obtaining a legal name change. But only two states in the nation currently allow minors to change their name legally without their parents’ consent and active assistance. Parental consent requirements are problematic because youth whose parents do not support their gender identity must wait, exposed to harm and distress. Thus, we deny them this first step towards correcting their gender and the accompanying mental health relief—delaying youth who have otherwise transitioned years before adulthood.

In the meantime, with identification cards that do not match their gender identity, transgender and nonbinary youth are at risk of discrimination and other harm. They may drop out of school and avoid seeking employment for fear of bias and rejection. Our laws must change to protect our transgender and nonbinary youth by allowing them to change their legal name independently. Their mental health and well-being depend on these crucial reforms.

Introduction

“I was living under a name that didn’t match who I was,” said Jude. “I wasn’t living as my true self, which caused a lot of self-hate. By changing this, it pretty much cuts off all association with that.”¹

“I know for sure that when my name was changed and people started calling me Tye that was a huge deal. . . . [I]t just meant more than a name. It was . . . more like respect. . . . The name was the first thing.”²

“[A] name change sends an important message to the world, a message solidified and made official with a court’s approval. . . . Recognizing the importance of a name change is one of the ways to help protect the well-being of a transgender minor child.”³

A person’s first name given at birth is typically associated with that individual’s “assigned sex.”⁴ For transgender individuals⁵—those whose assigned sex at birth does not match their gender identity⁶ or expression⁷—their given name may not match either. Many transgender and nonbinary individuals⁸ experience their birth name as a “dead name”⁹ associated with severe distress.¹⁰ It reminds them of a past with which they do not identify.¹¹ Imagine an adolescent’s distress if they identify as female and have chosen the name Veronica, but people address them by their male associated birth name as it appears in their school records and on their driver’s license.

For many transgender and nonbinary youth, choosing a different name for themselves is an initial step towards affirming their gender identity.¹² Choosing one’s name can be empowering and signal self-respect.¹³ More crucially, when others use a youth’s chosen name, they safeguard transgender and nonbinary youths’ mental health, and suicidal behavior appears to decrease.¹⁴ In fact, for each additional social context in which others use a transgender youth’s chosen name, the youth’s risk of suicidal behavior lowers by more than half.¹⁵ In contrast, when others call a transgender youth by their birth name and use incorrect pronouns after they transition,¹⁶ that act can “out” them. Outing exposes them to potential harm, including victimization and increased mental health risks.¹⁷

Many transgender youth feel significant distress because their gender identity conflicts with their sex assigned at birth.¹⁸ Advocates for transgender and nonbinary youth emphasize the need to affirm the youth’s gender identity,¹⁹ which includes using their chosen name and pronouns.²⁰ Noted mental health stressors for transgender and nonbinary youth include being called by the wrong name and having identification documents that are incongruent with their gender identity.²¹ Given the mental health vulnerability of many transgender and nonbinary youth, gender identity affirmation is vital.

Transgender youth often identify as such in early adolescence, and increasingly transition when they begin high school.²² For adolescents with gender dysphoria, pubertal changes can be “unbearable,” and affirming physical outcomes are compromised by delaying medical intervention beyond puberty.²³ This delay can “create[] difficult barriers with enormous life-long disadvantages.”²⁴ “[T]hose who transition later in life after already having developed secondary sex characteristics, may be at increased risk of stigma given their visible gender nonconformity. In fact, the degree to which others can tell whether an individual is transgender has been linked to discrimination and poor mental and physical health outcomes.”²⁵

Naming oneself is commonly the first step in an individual’s transition, and being able to require others to use one’s chosen name is one of the simplest and most effective ways to prevent harm.²⁶ The law does not reflect this reality, however—in every state but New Mexico and Wisconsin,²⁷ transgender and nonbinary youth must wait until they are a legal adult to change their legal name without having to rely on one or both parents’ agreement and active support.

In most states, at least one parent (or legal guardian) must file the request for a legal name change with a court.²⁸ The parent may also have to testify in support of the change.²⁹ Transgender and nonbinary minors are, therefore, dependent upon their parents’ approval for this early key step to actualize their identity. This dependence is especially troubling since some parents reject their transgender or nonbinary children.³⁰ These unsupportive parents are unlikely to initiate or consent to the legal procedure enabling the youth to effectuate that identity. Moreover, a disproportionate number of LGBT youth are experiencing homelessness or are in foster care because of rejection by their families.³¹ Youth who are experiencing homelessness or are in foster care rarely have an engaged parent or guardian to petition a court for their name change.

For too many transgender and nonbinary youth, therefore, a legal name change is impossible. That creates an untenable scenario where a transgender or nonbinary adolescent might choose a name that is true to their identity, but still be forced to use their given name—their dead name. To avoid this injustice, legislatures should follow the lead of New Mexico and Wisconsin and allow minors, fourteen and older, to petition for a name change independently.³² I propose specific name change law reform for states to adopt to accommodate transgender and nonbinary youth by allowing them to change their legal name independently, thus supporting their mental health and welfare.

In Part I, I present an overview of gender identity development and the mental health harms endured by youth who are not affirmed in their gender identity. Additionally, I explain common steps involved in transitioning, including the importance of a legal name change. Part II begins with a summary of U.S. state laws on name changes for minors. I then examine the case law regarding name changes for transgender youth. In Part III, I explain the barriers presented by widely used statutory name change provisions and common law restrictions that impede transgender and nonbinary youth’s ability to legally change their name. I provide solutions to address those procedural barriers. In Part IV, I argue that lowering the age requirement to fourteen for a minor to independently change their legal name is consistent with many other legal decisions that people of that age may already make. Finally, I propose legal reforms to name change statutes and court proceedings to enable access to justice for transgender and nonbinary youth and to protect their best interests.

I. Gender Identity Development and Affirmation

“Hearing you call me by the wrong name can make me think that you don’t support who I am, or that you are like the other people in my life who have judged me for being transgender and refuse to acknowledge me for the person I am.”³³

When young people transition (affirm their gender), they often choose a different name than their given name to match their gender identity.³⁴ One study found that a majority of transgender youth aged fifteen to twenty-one chose a different name from the one given to them at birth.³⁵ “The name I grew up with caused me such dysphoria, it felt as if it was associated with a person that I just wholly was not any longer.”³⁶

This Part begins with an overview of gender identity development and the mental health harms endured by transgender and nonbinary youth. I then identify steps transgender youth may take if they transition to affirm their gender identity and address the importance of this individualized process. I discuss the particular significance of a legal name change to decrease risks resulting from a mismatch between legal identification and gender presentation.

A. Gender Identity Development and Mental Health Risk Factors

“Whether gender-expansive or transgender, signs that a child’s gender is ‘different’ can emerge at any age.”³⁷ The American Academy of Pediatrics asserts that by age three, most children identify their own gender as male or female and by age four know their gender identity.³⁸ Parents of transgender children report initially noticing gender differences at age four and a half on average.³⁹ By about age six, those children viewed their gender identity as different from what was assigned at birth.⁴⁰ In the U.S. Transgender Survey,⁴¹ a national study of transgender persons ages eighteen and older, sixty percent of respondents reported that they began to “feel different” from the sex on their birth certificate at age ten or younger.⁴² Thirty-two percent began to feel different at age five or younger, and twenty-eight percent between the ages of six and ten. Other research suggests that first identification as transgender occurs most commonly among those aged fifteen to seventeen.⁴³ Often, however, a transgender person will not show their identity before adolescence or even adulthood.⁴⁴

For most children, gender identity conforms to their sex assigned at birth and remains stable as they age.⁴⁵ While many children try out alternative gender expression and roles,⁴⁶ some experience a direct conflict between their sex assigned at birth and their gender identity. If that conflict results in persistent distress and impaired functioning, the child is diagnosed with gender dysphoria.⁴⁷ Those with gender dysphoria are at higher risk of depression, suicidality, and anxiety.⁴⁸ However, research suggests that a majority of children who experience gender dysphoria grow out of it as they approach puberty or during its early stage.⁴⁹ Studies show that dysphoria perseveres past puberty for six to twenty-seven percent of gender dysphoric children.⁵⁰ For these children,⁵¹ the distress will escalate along with animosity towards their body as they go through puberty (typically between ages ten to thirteen) and, for example, begin menstruating and develop secondary sex characteristics, such as enlarged breasts and facial hair.⁵² For youth with escalating distress linked to the onset of the wrong puberty, transitioning provides crucial emotional protection. “[I]n many cases, the remedy for dysphoria is gender transition.”⁵³

Moreover, transgender and nonbinary youth whose family supports their gender identity and transition have better physical health, mental health, and well-being outcomes.⁵⁴ A study of transgender children ages three to twelve who had transitioned socially and whose families supported them found that the children had normal levels of depression and only slightly elevated levels of anxiety compared to the cisgender⁵⁵ participants.⁵⁶ Social support is consistently associated with improved mental health outcomes in transgender adolescents as well.⁵⁷

In contrast, social rejection exacerbates distress through factors such as familial emotional neglect and other adverse childhood experiences.⁵⁸ “Experiences of rejection and victimization may lead youth to believe their family, friends, and/or community do not need or want them, or would be better off if they were dead.”⁵⁹ For transgender minors, chronic adversity includes “minority stress” from enduring and navigating social bias and hostility, as well as interpersonal, identity-based microaggressions, which increase their suicide risk.⁶⁰ Black and Latinx transgender and nonbinary children face compounded bias and resultant harms.⁶¹

“Within the transgender population, suicidality is highest among young people.”⁶² Over one quarter of transgender youth have reportedly attempted suicide (half at age fifteen or sixteen) compared to eight percent of the general adolescent population.⁶³ Another study of suicidality rates between transgender and cisgender adolescents (average age of under sixteen) found that fifty percent of transgender youth had attempted suicide compared to twenty-three percent of cisgender heterosexual youth.⁶⁴ Moreover, eighty-seven percent of the transgender youth had engaged in self-injuring behavior, compared to forty-eight percent of cisgender, heterosexual youth.⁶⁵ The same study reported that forty-four percent of nonbinary youth had attempted suicide, and suicidality was especially high for nonbinary youth assigned female at birth.⁶⁶ A further study found a fifty-six percent suicide attempt rate among transgender youth, and eighty-six percent of the youth had contemplated suicide in the prior six months.⁶⁷

The alarming suicidality and other self-harm rates among transgender and nonbinary youth underscore the urgency of societal support and individual affirmation, including by supporting these youth in transitioning (should they wish to do so and to whatever extent they choose).

B. Gender Affirmation

Transgender youth are increasingly transitioning at earlier ages.⁶⁸ “Adolescence is a crucial time for identity and psychosexual development in young people with gender identity concerns.”⁶⁹ More transgender adolescents are publicly presenting their authentic gender when they start high school.⁷⁰ Therefore, it is critical to allow people at that age—fourteen and older—to change their legal name independently in order to ensure that their school records reflect their chosen name, thus requiring school personnel to use it.

For those who desire and choose to transition, the process is individualized and varied.⁷¹ “Every transition is different;”⁷² some transgender and nonbinary youth do not want to transition beyond a name change, and some may not even take that step.⁷³ For many, transitioning includes three components: medical intervention, legal and administrative procedures, and social changes.⁷⁴ Some transgender youth experience minimal or no discomfort with their body, and do not seek medical intervention.⁷⁵ Moreover, “for children who have not reached puberty, gender transition involves no medical interventions at all: it consists of social changes like name, pronoun, and gender expression.”⁷⁶

Whatever the changes desired and needed, “[f]amilies and doctors of transgender children often report that the gender transition process is transformative—even life-saving.”⁷⁷

1. Gender-Affirming Care

“Puberty blockers and cross-sex hormones can save my life. . . . As I know people are judging me for being different, the quicker that I can feel like I am moving toward the body I am inside, the better and more comfortable I will feel with myself.”⁷⁸

As the American Medical Association emphatically states, “[e]very major medical association in the United States recognizes the medical necessity of transition-related care for improving the physical and mental health of transgender people.”⁷⁹ Gender-affirming care initially consists of therapy and counseling,⁸⁰ and then includes access to pubertal suppression for transgender youth who desire that treatment.⁸¹ “By delaying puberty, the child and family gain time—typically several years—to explore gender-related feelings and options.”⁸² For those who desire it, pubertal suppression decreases suicidal ideation over the lifetime of transgender youth with treatment access, compared to those who do not have access to care.⁸³ Withholding necessary⁸⁴ transition care can prolong dysphoria and increase distress tied to gender-related abuse.⁸⁵ Therefore, depriving gender dysphoric adolescents and those transgender youth who want medical intervention is “not a neutral option”⁸⁶—it is harmful.

Denial of gender-affirming care is also associated with increased rates of suicide and other self-harm for already highly vulnerable transgender youth.⁸⁷ Consequently, it is alarming that Arkansas recently passed legislation prohibiting gender-affirming medical care for transitioning youth.⁸⁸ Since that bill’s passage, one Arkansas gender-affirming care provider has reported attempted suicides by youth who had been receiving transition care.⁸⁹ In 2021, similar bills were introduced in nineteen other states,⁹⁰ some criminalizing providers of gender-affirming care and parents who seek it on behalf of their child.⁹¹ Therefore, “[a]n estimated 45,100 transgender youth ages 13 and older in the U.S. are at risk of being denied gender-affirming medical care due to proposed and enacted state bans.”⁹² Poor transgender youth and communities of color face a disproportionate lack of access to care.⁹³

Gender-affirming providers fear increased rates of suicide and other mental health crises among transgender youth as a result of the erasure threat posed by the bills.⁹⁴ For transgender youth who live in a state that threatens or prohibits gender-affirming treatment, a name change may be their only legal transition option and, therefore, even more vital to their well-being.

Although many transgender youth do not have access to gender-affirming treatment,⁹⁵ among those who do, there is no one-size-fits-all medical intervention.⁹⁶ However, the World Professional Association for Transgender Health and the Endocrine Society publish standards of care and guidance to professionals providing gender-affirming treatment.⁹⁷ Such care may include pubertal suppression through hormones used to block and, thus, delay an incongruous puberty.⁹⁸ Pubertal suppression is completely reversible when the hormones are discontinued,⁹⁹ whereas undergoing puberty results in gender-noncongruent physical changes such as a lowered voice, incongruous bone structure, body hair, and breast development.¹⁰⁰ Such changes can result in potentially prohibitive cost to treat later, and may require surgery to undo, such as a mastectomy or facial feminization.

Other gender affirming care may include hormone therapy, which enables youth to physically develop age-appropriately at the same time as their peers and consistent with their gender identity.¹⁰¹ If the youth desires, the Endocrine Society recommends hormone transition therapy begin by age sixteen, or earlier if the medical provider believes that delaying treatment until then could be harmful.¹⁰² Medical experts in support of pre-pubescent treatment caution against waiting to begin hormone treatment, because waiting until “a high minimum age” for medical transition can expose transgender youth to distress resulting in risky behavior, such as seeking hormones from illegal and unregulated sources.¹⁰³ Additionally, the Endocrine Society emphasizes that, “[b]ecause of the psychological vulnerability of many individuals with [gender dysphoria]/gender incongruence, it is important that mental health care is available before, during, and sometimes also after transitioning.”¹⁰⁴

2. Legal Measures

“I remember the first day that I got my new driver’s license with the right gender on it. It was a celebratory time for me. I had a party with my friends. That just kind of completes the person, to see that all the documents match up.”¹⁰⁵

“It feels good now to have my name legally recognized . . . because it’s easier to assert myself and get treated with respect more readily and challenged on my identity less often.”¹⁰⁶

Obtaining identity documents with a correct name and gender marker is necessary to maintain the welfare and safety of transgender and nonbinary individuals.¹⁰⁷ Enabling transgender and nonbinary youth to legally change their name and obtain gender affirming identification helps them to thrive.

Everyone must produce identification to verify their identities in many contexts, sometimes daily. For individuals with gender incongruent identification documents, each of these instances “outs” them as transgender or nonbinary and risks exposing them to discrimination and victimization.¹⁰⁸ In the U.S. Transgender Survey, almost a third of respondents reported negative experiences, including verbal harassment or being denied services, when they showed identification that did not conform to their gender presentation.¹⁰⁹

To illustrate, in an Ohio probate court case, a fifteen-year-old transgender boy sought to change his name from his female-associated birth name to a male-associated chosen name.¹¹⁰ When the probate judge asked him why it was necessary to change it legally, the youth replied that because his school records officially referred to him by his birth name, substitute teachers called him that name during roll call, “causing him distress.”¹¹¹ That misgendering outed him to classmates who did not know he was transgender.¹¹² The court noted that the “timing of the name change is in part motivated by the need to have [the boy]’s driver’s license, passport, college applications, and similar documents reflect a name consistent with his male gender identity.”¹¹³

Transgender and nonbinary individuals, therefore, need the option to transition legally to protect and affirm themselves. A court-ordered name change is almost always required before an individual can apply for gender-congruent identity documents, such as a driver’s license.¹¹⁴ The federal government requires a court order to change one’s name on a Social Security card or U.S. passport,¹¹⁵ and states typically require a court order or other documentation of a legal name change to change the name on a driver’s license.¹¹⁶ It is, therefore, a crucial first step in a person’s legal transition.

For transgender and nonbinary adolescents, having identification that does not match the name they use socially can cause them to delay seeking employment, opening a bank account, and accessing health care.¹¹⁷ For example, employers require job applicants to present their social security card. Transgender and nonbinary youth, however, cannot change their name on their social security identification without a court-ordered name change.¹¹⁸ These youth, therefore, may not seek employment because their name does not match their gender identity—outing them to potential employers and risking bias in hiring decisions.

Further, transgender and nonbinary youth may avoid school if their school records do not reflect their chosen name or they are not allowed to use it.¹¹⁹ A youth’s decision to discontinue their education has a potentially lifelong impact, including limiting job prospects and future income.

Additionally, police officers often require transgender and homeless youth to show identification.¹²⁰ That act is particularly risky for youth whose identification does not correspond to their gender expression.¹²¹ One transgender man “recalled the time when he was pulled over before he had his name and gender marker changed on his driver’s license and the officer didn’t believe he was providing his real identification. It took hours to sort out the situation.”¹²²

Law enforcement may also show implicit or overt bias against transgender people. Fifty-eight percent of U.S. Transgender Survey respondents reported being mistreated, including being misgendered and verbally harassed, by law enforcement officers who suspected or knew they were transgender.¹²³ And in New York, for example, transgender youth can be arrested under a city ordinance for “false personation” if the youth “knowingly misrepresents his or her actual name, date of birth or address to a police officer or a peace officer with the intent to prevent such [person] from ascertaining such information.”¹²⁴

Access to legal name changes is especially beneficial to those who transition at a young age. In some states, youth can get a driver’s permit at age fourteen, and a driver’s license at age sixteen. That permit (and then license) is often a person’s first photograph identification card. A transgender or nonbinary youth’s photograph may not be gender congruent with the name on their identification. Securing a legal name change before those adolescents apply for a driver’s permit or license would help protect them from the potential harm of exposure.

3. Social Transition

Transitioning socially entails “coming out” to others and living externally as one’s true gender, whether to family, peers, at school, on the job, or in the wider community.¹²⁵ In addition to key factors like using one’s chosen name and gender-affirming pronouns, transitioning socially also commonly includes using a gender-aligned bathroom, and choosing clothing, a hairstyle, and otherwise presenting oneself in public consistent with one’s identity.¹²⁶ Youth who transition socially and are affirmed have improved mental health outcomes.¹²⁷ In contrast, transgender children who do not transition socially report poor mental health.¹²⁸

Youth, however, often face hostility when they transition in school.¹²⁹ A national survey of LGBTQ students found that approximately forty-three percent felt unsafe at school because of their gender expression, a majority were called names or threatened, around twenty-two percent experienced physical harassment because of their gender expression, and almost sixty percent of the students who reported victimization to school staff said that staff were unresponsive.¹³⁰ Moreover, and arguably most troubling, sixty-seven percent of students reported hearing hostile comments about gender expression from teachers and staff.¹³¹ Further, an unconscionable bill introduced in Arkansas would have disallowed requiring teachers to use a student’s gender congruent pronouns “inconsistent with the public school student’s biological sex”—permitting teachers to misgender and disaffirm transgender and nonbinary students.¹³² The bill’s sponsor said: “This bill is just a first step to help protect our teachers but when we have students in school now that don’t identify as a boy or a girl but as a cat, as a furry, we have issues.”¹³³

Schools and school systems that have discriminatory or nonprotective policies, such as prohibiting transgender students from using their chosen name, expose students to harm.¹³⁴ One surveyed student explained:

At my last school I felt miserable and got called “freak” and “weirdo” as if those were my name instead of the name I had asked them to call me. They called me by my birth name as well. . . . They had no respect for me despite how kind I had acted towards them. . . . I felt like there was no place for someone like me.¹³⁵

Transgender and nonbinary youth need validation and support of their gender identity at school to thrive.¹³⁶ National transgender and nonbinary advocacy groups have drafted a model school policy on transgender and nonbinary students that includes the right to be called by the name that aligns with their gender identity.¹³⁷ The nation’s three largest school districts, New York City, Los Angeles, and Chicago, have adopted that model policy, ¹³⁸ and other districts must follow suit to protect and respect transgender students.

II. Current Law on Name Changes for Minors

Federal and state governments require a court-ordered name change for a transgender or nonbinary person to change their name on legal documents.¹³⁹ States impose myriad requirements on individuals before they are permitted to make such a change, including age limitations and parental notification requirements. Additionally, courts often inject anti-trans bias into name-change proceedings, complicating name changes even for individuals with supportive families and medical professionals.

A. Summary of State Name Change Laws for Minors

Across the U.S., transgender and nonbinary youth are prevented from legally adopting their chosen name on their own. Forty-eight states do not allow minors to independently obtain a court-ordered name change. A majority of states require a parent or legal guardian of the minor to petition the court for the name change.¹⁴⁰ Of those states, a few also allow a next friend, guardian ad litem, or adult relative to file the petition,¹⁴¹ but many require that a parent petition the court.¹⁴² South Dakota theoretically allows a minor to petition for a name change, but requires that a guardian or conservator be appointed to conduct the action for the minor.¹⁴³ Finally, in several states, the legal requirements for a minor’s name change vary by county.¹⁴⁴

In three states, legal name changes may be obtained administratively rather than through the courts. In Hawaii, a parent must still initiate the procedure with the other parent’s consent.¹⁴⁵ Pennsylvania allows both a name and gender change to a minor’s birth certificate, but requires a parent to make the request. ¹⁴⁶ Oregon similarly allows birth certificate name and gender changes but allows either a parent or legal guardian to initiate the change. ¹⁴⁷ By requiring that only one parent consent to the name change, both Pennsylvania and Oregon recognize that different requirements should exist for transgender and nonbinary youth because both parents may not approve of their child’s identity and transition.

Importantly, though, in almost every state the petitioning parent must serve the non-petitioning parent with notice of a name change court proceeding—enabling a nonconsenting parent to object and impede an otherwise valid request by the petitioning parent.¹⁴⁸ Exceptions include a non-petitioning parent who has abandoned, failed to support, or abused the child.¹⁴⁹ The requirement of notice to both parents as a potential barrier to name changes for transgender and nonbinary youth is discussed below.

B. Existing Case Law Illustrates Judicial Bias

The judge thought I was going through a phase that teenagers go through and that I was choosing to be this way. . . . Never would I ever choose to have to go through this if it didn’t trouble me. It’s painful in so many ways to be trans.¹⁵⁰

The following three cases demonstrate judicial bias regarding transgender youths’ name changes. The first is a Tennessee trial court case in which both parents sought to change the name of their sixteen-year-old transgender son from his birth name to his chosen name to align with his gender identity.¹⁵¹ The judge initially denied the name change without holding a hearing, stating that the parents had failed to present a valid reason for the name change.¹⁵² The youth’s parents then had to press the court, through a motion with supportive documentation from the youth’s “physician, therapist, and teacher,” for the judge to hold a hearing on their petition.¹⁵³ At the evidentiary hearing, both parents and the youth testified that the name change was in his best interest.¹⁵⁴ Further, in a letter to the court, the youth’s therapist supported the name change, stating:

“I believe it will aid in improving [the youth’s] anxiety and depression. Not only do I expect this to have a direct impact on [the youth’s] emotional wellbeing but I expect it to help improve struggles at school, work, and in relationships across the board.”¹⁵⁵

Nevertheless, the judge again denied the name change, finding that the parents had failed to prove that it was in their son’s best interest.¹⁵⁶ On appeal, the Court of Appeals of Tennessee reversed the trial court’s decision and remanded the case, ordering the trial court to grant the name change.¹⁵⁷ The appellate court held that the trial court had no legal basis to deny the name change and that the evidence presented “unequivocally reveals that it is in the child’s best interest to change the child’s name.”¹⁵⁸ Furthermore, the appellate court recognized that minors have the same right as adults to change their name.¹⁵⁹ It reasoned that the state’s only “legitimate concern” was whether the name change was for a fraudulent or unlawful purpose.¹⁶⁰

Similarly, an Ohio probate court denied a name change to a fifteen-year-old transgender boy.¹⁶¹ His parents testified that the name change was in their child’s best interest, after they consulted extensively with mental health and medical professionals.¹⁶² The youth’s father testified that a legal name change was important before the youth applied for a driver’s permit and license, for a passport, to college, and for insurance.¹⁶³

Media coverage of the probate case cited egregiously biased statements by the probate judge during the hearing and in his written decision, including “referr[ing] to [the youth] as ‘she’ and ‘her’ because using [the youth’s ‘he’ and ‘his’] pronouns made it ‘difficult to read.’”¹⁶⁴ The judge dismissed the diagnosis of gender dysphoria by the mental health professional that the youth had seen for extensive counseling, stating:

Whether [the youth] is experiencing Gender Dysphoria or is just not comfortable with her [sic] body is something that only time will reveal. Is [the youth’s] distress brought about by confusion, peer pressure, or other non-transgender issues—or is it truly a mismatch between her [sic] gender identity and her [sic] body?¹⁶⁵

Although the youth should not have been required to present evidence beyond a preference to claim a new name, and that he did not seek a name change for an unlawful purpose, he further showed the court his commitment to transition, including having used his chosen name at home and school for over a year.¹⁶⁶ Despite that evidence, the probate court characterized the youth’s gender identity as a phase, doubting the youth’s knowledge of his own identity. The judge stated, “[a] name change request today by a child could be motivated by short-term desires or beliefs that may change over the passage of time as the child matures. . . . [the youth’s] brain is still growing and changing and is simply not ready to make this life-altering decision.”¹⁶⁷ In denying the youth’s name change, the judge decided against medical advice¹⁶⁸ and the youth’s best interest. The judge denied the youth improved mental health, protection from bias, and identity affirmation. Further, the youth’s “life-altering” decision to live his authentic gender identity through transitioning had already occurred, in line with gender identity development standards.

The Ohio Court of Appeals held that the probate judge had abused his discretion by denying the name change without considering the proper best interest factors.¹⁶⁹ It reversed the probate court’s denial of the name change and remanded the case for reconsideration based on its proposed unique best interest factors.¹⁷⁰ In a separate concurrence, one appellate judge stated that he would have reversed the probate court’s decision as a matter of law.¹⁷¹ He further objected to the majority giving “special weight” to the parents’ preferences in a minor’s name change matter.¹⁷² He stated that although a court should consider parental preferences, the majority gave those preferences greater weight than other factors without proper basis.¹⁷³

In a third case, a Missouri circuit court denied a name change to a fourteen-year-old transgender youth who petitioned the court through his mother.¹⁷⁴ The youth and his mother testified that the name change was in his best interest, not detrimental to anyone else, and that the youth had used his chosen name “for approximately two years,” including at school.¹⁷⁵ Although Missouri law only authorizes a court to order a mental examination if a party’s mental health or cognitive capacity is in controversy, if good cause is shown, and upon motion and notice, the judge sua sponte ordered the youth to undergo a mental examination.¹⁷⁶ Doing so suggests that the judge believed that Nathan was not mentally competent because of his gender identity and commitment to transitioning.

The Missouri Court of Appeals prohibited enforcement of the order, finding that the judge had exceeded his authority and that the law allowed name changes if evidence showed that it would be proper and not detrimental to anyone else.¹⁷⁷ The court reasoned that “[t]he mental state of the party requesting the name does not directly relate to any material element of the cause of action.”¹⁷⁸

These cases where judges ignored substantial and compelling best interest evidence when denying name changes for transgender youth show that statutory reform, including a presumption that it is in the best interests of a transgender youth to change their name, is critical. Even if states modify their laws to allow transgender minors to change their legal names independently, individual judges like those in the aforementioned cases may deny the name change. The Ohio probate judge denied name changes to two other transgender youth the same day he denied the youth in the case discussed above. In fact, that judge denied all other name changes for transgender individuals in cases he presided over in the prior five months.¹⁷⁹

Because state district court decisions are not published, it is impossible to know how many other cases exist where judges have denied name changes for transgender youth based on bias. It is highly unlikely that many transgender youths denied a name change will have the confidence, means, and ability to appeal the denial. Therefore, even after modest legal reform, for some transgender youth, a legal name change will remain merely theoretical until judicial and societal attitudes towards transgender and nonbinary people evolve.

Based on the negative outcomes that arise from failing to support a transgender or nonbinary youth’s gender identity and expression, a name change should be presumed to serve the youth’s best interest. But such a presumption would be insufficient. A judge may simply decide it is against any child’s best interest to change their name, erroneously believing that granting a name change to conform to a transgender or nonbinary youth’s gender identity is sanctioning the youth’s transition. As legal scholar Amanda Kennedy cautions, the best interest standard is subjective and discretionary, and prone to judicial bias.¹⁸⁰ Her concern was illuminated by U.S. Supreme Court Justice John P. Stevens, who wrote that “[the best interest of the minor standard] provides little real guidance to the judge, and his decision must necessarily reflect personal and societal values and mores. . . .”¹⁸¹

III. Problematic Procedural Requirements and Other Barriers

A. Parental Notice

Courts and legislatures have required notice to the parents as a compromise to requiring parental consent when minors make certain health care decisions.¹⁸² But notice and consent raise similar concerns; “[c]ourts and legislatures seem to regard parental notification requirements as less burdensome for adolescents than parental consent requirements, but it is not clear that adolescents in conflict with their parents make this distinction.”¹⁸³ Rationales for parental notice are like those for consent—preserving a role for parents to counsel their children about health care decisions and supporting parents’ control and family cohesiveness.¹⁸⁴ Those rationales fail to consider transgender and nonbinary youth rejected by their parents. Given parental rejection,¹⁸⁵ notifying parents of their child’s legal transition would expose some transgender and nonbinary youth to distress or safety risks. Further, statutes that allow minors to make some medical decisions in emergency situations or when the minor is independent may not require parental notice.¹⁸⁶ Those laws acknowledge that parental involvement through notice is not necessary when the adolescent is self-reliant and the need is critical. Protecting all transgender and nonbinary youth is a critical need—so name change statutes applicable to minors should not require notice.

In the abortion context, although the U.S. Supreme Court has held that states may impose parental notice requirements before a minor can obtain an abortion,¹⁸⁷ it has not decided whether parental notice provisions must include a judicial bypass exception.¹⁸⁸ Generally though, states that require parental involvement do include a judicial bypass that gives the court discretion to allow an abortion without parental notification.¹⁸⁹ Courts will grant the bypass if the youth shows: “(1) [they are] mature and well-informed enough to make [their] own abortion decision, or (2) an abortion would be in [their] best interests.”¹⁹⁰

Courts can and should waive the requirement of parental notice when a transgender or nonbinary youth requests an exception, after finding that the youth was mature and sufficiently informed to decide to change their name or that the name change was in their best interest. As the Ohio Court of Appeals noted, “unlike the permanent physical changes [the youth] will experience from testosterone therapy, if the probate court’s expressed concerns are borne out, the name change is reversible.”¹⁹¹ Because name changes are not permanent, a statutory exception to parental notice is sound law.

B. Publication and Court Hearing Requirements

Many states require that an individual seeking a court-ordered name change publish notice of the proposed name change (often in a newspaper of general circulation in the resident’s county) or seek a waiver from the court available in only narrow circumstances which rarely apply to transgender individuals.¹⁹² Other states provide courts more discretion to waive the publication requirement based primarily on personal safety concerns.¹⁹³ Therefore, waivers of publication for safety reasons are well established in these proceedings.

Requiring publication or giving discretion to the court risks outing an individual as nonbinary or transgender, and creates an unnecessary permanent public record that prolongs that risk.¹⁹⁴ National transgender and nonbinary advocacy organizations propose that states modify their name change statutes to remove publication requirements for transgender and nonbinary individuals.¹⁹⁵ For example, in 2014, the Transgender Law Center and Equality California sponsored a law that changed California’s name change proceeding by removing the publication and hearing requirement (if the proceeding is uncontested) for those seeking to change their name for gender identity purposes.¹⁹⁶ Similarly, Colorado passed “Jude’s Law,” which removed the publication requirement for transgender and nonbinary individuals.¹⁹⁷ Like California and Colorado, states should not require publication for those seeking to conform their name to their gender identity.

In addition, publicly accessible court hearings present a risk of exposure and inducing distress despite that “[t]here is no public policy reason to require a person to discuss their intimate feelings regarding their birth sex, gender identity, or the medical treatments they have received in open court.”¹⁹⁸ A court hearing may be especially anxiety provoking for a young person who must disclose and discuss their gender identity in front of a stranger, the judge, and potentially other members of the public. States should, therefore, follow California’s lead and grant a name change for gender identity conformance without a hearing if there are no good cause objections.¹⁹⁹

Finally, if a state’s name change statute requires a hearing, the hearing should be sequestered for individuals seeking gender identity conformance. Another option, which some courts have used, is to allow transgender individuals to use a pseudonym or acronym in their court filings. Those courts have acknowledged the risk of harm in outing the individual as transgender.²⁰⁰ Allowing transgender and nonbinary youth to remain anonymous in court filings, if that is their preference, is an additional way to protect them. Moreover, court records in these proceedings should be automatically sealed to prevent record searches by the public. Record sealing is a necessary additional layer of privacy and safety protection.

C. Cost Barriers

The costs of filing a court proceeding are prohibitive for many young people, especially those of color and who are disadvantaged socioeconomically.²⁰¹ A nonbinary individual said of the court costs associated with a name change: “The financial stress was incredible, but it was such a mental health necessity that I knew I had to sacrifice for it.”²⁰² Moreover, court costs are a disproportionate barrier for transgender youth who lack family support, including youth experiencing homelessness and unemployment.²⁰³ A waiver of court costs must be available for youth who qualify so that cost is not a barrier to justice. Similarly, for transgender and nonbinary youth, publication costs are a barrier to obtaining a legal name change. This is yet another argument for not requiring publication in these proceedings.

D. Parental Rejection, Homelessness, and
Foster Care Placement Barriers

“I was kicked out of my parents’ home. I ran out of what little money I had, and I had nowhere to go. My family offered to let me return to their home on the condition that I de-transition and live as a man. I accepted because I had no choice.”²⁰⁴

Researchers, scholars, and the media have documented the daunting challenges faced by transgender youth. According to a national survey on transgender discrimination, at least forty percent of respondents reported rejection by their parents or other family members because of their gender identity or expression.²⁰⁵ “Gay and transgender youth from highly rejecting families were more than [eight] times as likely to try to take their own lives by the time they were young adults.”²⁰⁶ Familial rejection also contributes to high rates of homelessness, foster care placement, and juvenile justice system involvement.²⁰⁷ “As more youth transition at earlier ages, they become both more visible and more susceptible to family rejection and societal discrimination.”²⁰⁸

Transgender and nonbinary youth who are rejected at home often end up unhoused or in foster care, as shown by studies reporting overrepresentation of LGBTQ youth in the child welfare system and among the population of youth experiencing homelessness.²⁰⁹ For example, a study of youth in foster care in Los Angeles found that the proportion identifying as LGBTQ was twice as high as the proportion of LGBTQ youth not in foster care.²¹⁰ While in the system, transgender youth are the least likely to find a stable home or a secure relationship with an adult.²¹¹ And LGBTQ youth continue to face prejudice, rejection, and other harms while in foster care.²¹²

Further, transgender adolescents leave home at younger ages than other unhoused youth—one study reports two years earlier, at an average age of fourteen.²¹³ Youth experiencing homelessness face the combined health and safety risk factors of discrimination and poverty, including engaging in survival sex for income.²¹⁴ Moreover, transgender adolescents remain unhoused for twice as long as other youth experiencing homelessness.²¹⁵

For transgender and nonbinary youth in unsupportive foster placements, youth experiencing homelessness with no access to a consenting adult, and youth involved in the criminal justice system, a parent-initiated name change is a devastatingly inadequate remedy.

IV. Independent Decision Making and Proposed
Reforms to Name Change Laws

This Part begins by presenting legal decisions that youth aged fourteen and older are allowed to make independently under existing law. Next, I propose legal reform to allow youth, age fourteen and older, to change their legal name without their parents’ involvement. I then argue that for transgender and nonbinary youth under age fourteen, when the youth and their parents mutually consent to a name change, the court should grant it. Finally, I propose a modified best interest standard for courts to apply in contested proceedings involving transgender or nonbinary youth under age fourteen.

A. At Age Fourteen Youth Are Capable of Making
Major Decisions Independently

At age fourteen, a minor’s preferences usually carry weight by law or by judicial discretion in family law matters, including custody, guardianship, and adoption.²¹⁶ For example, most states recognize the capacity of a minor who is a parent to make major medical decisions for themself and their child.²¹⁷ Moreover, a minor who has a child can give up their fundamental parental rights and place their child up for adoption.²¹⁸ Additionally, youth ages fourteen and older can consent to substance abuse treatment²¹⁹ and certain mental health care.²²⁰

Further, some states allow youth age fourteen and older to consent independently to emergency medical care²²¹ and prenatal care.²²² And, in some states, youth experiencing homelessness or those otherwise living apart from their parents can consent to routine medical treatment.²²³ Minors can also independently access birth control²²⁴ and consent to the diagnosis and treatment of sexually transmitted diseases, including HIV.²²⁵ In Alabama, for example, minors age fourteen can consent independently to all medical, dental, health, and mental health services.²²⁶

As noted by the American Academy of Pediatrics, there is a lack of scientific evidence proving that by reaching age eighteen, the nearly universal legal age of majority, a youth has somehow transitioned from an incompetent to a competent decision-maker.²²⁷ Conversely, research instead indicates that by age fourteen, most youth understand the consequences of a major decision and “are able to make voluntary, rational, and independent decisions.”²²⁸ California recognizes that capacity by allowing youth to seek emancipation from their parents beginning at age fourteen, and Kansas does not have a minimum age requirement.²²⁹ An emancipated minor is considered an adult by law—the court terminates their parents’ rights. Emancipated minors, with few exceptions, have every right and responsibility of an adult, well before the age of majority, including the right and resulting obligations to purchase real estate and create a will.²³⁰ In contrast to these permitted independent decisions, a name change poses no risk of harm, such as medical complications, and is reversible. Accordingly, youth should be considered competent to make the change independently at least by age fourteen.

In most states, however, emancipation is not an option before age sixteen.²³¹ For transgender youth who wish to change their name earlier, for example on entrance to high school, emancipation is not a viable option.

Significantly, statutory and common law provide exceptions to parental involvement requirements for medical decision-making by certain minors. Those minors are living independently or have been determined by a court to be mature and capable.²³² “These exceptions seem to reflect legislative judgments that a minor who is not part of a functioning family, or whose parents exercise little or no control over him or her, is in a better position to make health care decisions than the minor’s parents.”²³³ As legal scholar Emily Ikuta notes, exceptions to parental consent requirements for certain medical decisions, such as obtaining contraceptives and treating sexually transmitted diseases, recognize that adolescents could avoid treatment and prevention because they do not want their parents to find out.²³⁴ For adolescents wishing to transition by changing their legal name and potentially taking other steps, they may fear that their parents will obstruct them. Delaying or avoiding transition risks adverse mental health and well-being consequences for vulnerable transgender and nonbinary youth.²³⁵

In sum, state laws and empirical research support a legal presumption that adolescents aged fourteen and older are competent to make significant health care and other decisions on par with adults. Given that the decision stakes regarding a name change are not comparable to, for example, adoption or abortion, the law must presume that adolescents aged fourteen and older are legally competent to decide to seek a name change independently, without parental involvement.

B. Youth Age Fourteen and Older Should Be Allowed to
Change Their Legal Name Independently

Given that most fourteen-year-old youths are capable of making important decisions independently, and given the need to affirm and protect the mental health of transgender and nonbinary adolescents, all states should follow New Mexico’s lead with respect to legal name changes. New Mexico presumes that those fourteen and older have a right to change their name, and requires the court to grant the name change “if no sufficient cause is shown to the contrary.”²³⁶ New Mexico’s court of appeals noted that “sufficient cause is demonstrated when there is evidence of an ‘unworthy motive, the possibility of fraud on the public, or the choice of a name that is bizarre, unduly lengthy, ridiculous or offensive to common decency and good taste.’”²³⁷

This standard, although not invulnerable to biased judicial discretion, places the burden of proof not on the youth but on the court or a third party to show that there is a lawful cause that trumps the right to change one’s name.²³⁸In Wisconsin, individuals do not possess an affirmative right to a name change.²³⁹ However, like New Mexico, sufficient cause must be shown for a court to deny a name change to those age fourteen and older.²⁴⁰ Although the court has discretion to determine the sufficiency of cause, “this discretion is narrow.”²⁴¹ The Wisconsin and New Mexico laws do not require a best interest finding to grant a name change to a youth aged fourteen or older.²⁴² Case law on children’s name changes generally addresses a proposed name change within the child custody context, i.e., in parental disputes regarding custody of their children. Custody disputes, such as during a divorce, are the most common context for seeking a name change. Courts apply a “best interest of the child” standard to weigh and resolve custody disputes between parents.²⁴³ The name change proceedings contemplated in this Article, however, are not custody or other family court matters;²⁴⁴ rather, they are civil proceedings brought by the youth. Courts, therefore, should not apply a best interest standard and determination for youth aged fourteen and older. Instead, as is true when an adult seeks to change their legal name, the law should presume that youth aged fourteen and older have the right to change their name unless their motivation is for an unlawful purpose, such as fraud or to avoid criminal prosecution.²⁴⁵ If state legislatures do not change the age requirement to allow youth age fourteen and over to change their name without their parents’ consent, they should at a minimum include a judicial bypass provision similar to those allowed in the abortion context.²⁴⁶ A judicial bypass provision waives parental consent, usually based on a best interest of the child analysis.²⁴⁷ A judicial bypass serves to give minors the option to obtain court approval instead of parental consent.²⁴⁸ A comparable bypass provision should be included in name change laws that apply to youth. The option to seek court approval as a remedy is critical in cases where one or both parents do not consent or support the name change or the parents and youth are estranged. This may describe a significant number, if not a majority, of cases. Alternatively, if a parent of a youth aged fourteen and older contests the name change, courts applying a best interest standard and determination should use the factors described in Section IV.D below, which have been crafted specifically for transgender and nonbinary youth.

C. Granting a Name Change for Transgender and Nonbinary Youth Under Fourteen When Both Parents and the Youth Consent

This Section describes solutions in cases where both parents and the child all agree to the name change. Generally, states have a variety of legal requirements for changing a minor’s legal name. For example, California and Indiana require the consent of both parents.²⁴⁹ However, even when both parents consent, some state courts do not automatically grant the change. Instead, the court applies a best interest of the child standard to determine whether to allow the request.²⁵⁰ When parents agree to their nonbinary child’s name change, there is no controversy unless the minor does not consent. Absent a dispute, the presumption should be to grant the change.²⁵¹

Virginia courts generally do not require a hearing if both parents consent.²⁵² South Dakota does not require a hearing if the parents and the minor, if at least twelve years old, all consent.²⁵³ Requiring a young adolescent aged twelve and older to consent protects transgender and nonbinary youth from a name change that is not their chosen name. By not requiring a hearing in cases of mutual consent, those states recognize that there is no controversy and courts should grant the change without additional steps.

Because of the potential for judicial bias against gender-based name changes, authorizing judges to apply a best interest standard when all parties agree opens the door to discretionary denial.²⁵⁴ Therefore, for transgender and nonbinary youth under fourteen, the consent of the youth and the parents should be sufficient.

D. A Best Interest Standard for Transgender and Nonbinary Youth Under Age Fourteen in Contested Proceedings

“To force him to legally keep [a] feminine name . . . would not be in his best interest.”²⁵⁵

This Section proposes solutions applicable to cases in which one or both parents do not agree to the name change of a youth under fourteen. Because using a transgender or nonbinary youth’s chosen name is linked to decreased suicidality, granting them a legal name is presumptively in their best interest. Therefore, if a parent contests the name change of a transgender or nonbinary youth, the contesting parent should have the burden of proving that it is adverse to the youth’s best interests. As in California, courts should reject a parent’s objection to the name change to conform to a gender identity if the reason is “based solely on concerns that the proposed change is not the person’s actual gender identity or gender assigned at birth.”²⁵⁶ Under California law those objections do not constitute good cause.

Additionally, in contested cases, the court should appoint a guardian ad litem to represent the youth’s position and best interests. There is a risk, however, that a guardian ad litem could be biased or uninformed about the imperative of affirming a transgender and nonbinary youth’s gender identity and transition. Before appointing a guardian ad litem, the judge should inquire about that guardian ad litem’s knowledge or willingness to thoroughly inform themselves of the issues and biases relating to transgender and nonbinary people.

In Sacklow v. Betts, a New Jersey case regarding a name change for a transgender youth, the New Jersey Superior Court crafted unique best interest factors based on gender identity conformance.²⁵⁷ Those factors are:

age of the child,
length of time the child has used their chosen name,
any potential anxiety, embarrassment, or discomfort that may result from having a name that the child does not feel corresponds with their outward appearance and gender identity (the “most compelling factor for the court in this case” ),²⁵⁸
the history of any medical or mental health counseling the child has received,
whether the child’s family and community, including school, identify the child by their chosen name,
the child’s preference and motivations for seeking the name change,
whether both parents consent to the name change, and if consent is not given, the reason for withholding consent.²⁵⁹

Later, the Ohio Court of Appeals applied the “Sacklow factors” when it addressed the name change of a transgender youth.²⁶⁰ With some important changes, described below, courts should adopt the Sacklow best interest factors for transgender and nonbinary youth in contested name change proceedings to ensure their specific interests are protected.

The Sacklow factors should be amended so the first factor, the age of the youth, is invalid if the youth is fourteen or older as codified by New Mexico and Wisconsin. The factors that courts should accord the most weight are the third, regarding the youth’s anxiety from having a gender incongruent name, and the sixth, the youth’s preference. Factor three is the “most compelling” because of the distress and impact on the youth’s mental health when others do not use the youth’s chosen name. Moreover, as the Sacklow court noted,

“The fear that [the youth] will be bullied or harassed if his name is not changed from [his birth name] to [his chosen name] is supported by the myriad studies demonstrating that transgender youth are bullied and harassed at an alarming rate.”²⁶¹

The youth’s preference for the name change, factor six, is also crucial to support the youth’s well-being by ensuring the youth’s name matches their identity.

Factor five, “whether the minor child’s family and community, including school, identify the child by [their chosen] name” is potentially problematic because it depends on the willingness of others, including schools, to acknowledge and address the youth by their chosen name. Schools, moreover, may have a policy, or school staff may be biased, against using a transgender or nonbinary youth’s preferred name.²⁶² Also, the youth may not be out in the community at the time they seek a legal name change and may delay coming out until their identification matches their gender identity. Moreover, it may not be safe for them to be out to their family or community, including at school. Therefore, courts should not require the youth to ask others to use their chosen name. Consequently, factor five should instead ask “whether the minor child identifies and, if not currently, eventually wants others to identify them by their chosen name within the family and community.” That language refocuses the factor on the youth’s commitment to the name change and desire to have others use it, which, unlike the current language, is within the youth’s control.

For the many transgender and nonbinary youth who experience family rejection and bias, the most dangerous factor is the seventh—the parents’ support for the name change. If one or both parents do not consent based on bias against the youth’s gender identity and transition, then the court should consider the parents’ position as adverse to the youth’s best interest.

Furthermore, because the child’s surname, not their first or given name, typically identifies the child in relation to their parents,²⁶³ the parents’ interest in preventing the name change is inconsequential. Courts have viewed the surname as preserving the parent-child bond.²⁶⁴ “The function of surnames as a link to the family is so widely recognized that the term ‘family name’ is a synonym for the term ‘surname.’” ²⁶⁵ For example, in cases in which unmarried parents contest their child’s surname, Ohio courts consider factors that emphasize the relationship of the parents to the child and that the surname identifies the child “as part of a family unit.”²⁶⁶ But first names rarely identify a parental or family relationship. The state does not further any interest in promoting or preserving the family unit by denying a transgender minor a change of first name. Regardless, an interest in preserving or promoting a family unit must not supplant a transgender or nonbinary child’s welfare.

Conclusion

For most of us, a name is much more than just a tag or a label. It is a symbol which stands for the unique combination of attributes that define us as an individual. It is the closest thing that we have to a shorthand for self-concept.²⁶⁷

Our name—what we call ourselves and what others call us—is central to our identity. For many transgender and nonbinary youth, the first name they are given at birth does not match their gender identity. Often though, individuals choose a name for themselves that does align. Being allowed to legally change their name is a crucial step in their transition towards aligning with their gender identity. Affirming a transgender or nonbinary youth’s gender identity and supporting their transition, including by using their chosen name, is key to their mental health. Such support can be lifesaving, given the risk of suicidality and mental health vulnerability among this population.

Beginning at age fourteen, many youth are able to independently make certain consequential medical and other major decisions without their parents’ approval. Nonetheless, all but two states prohibit youth under eighteen from legally changing their name without their parent or guardian’s initiative and support. For numerous transgender youths, this is impossible because of parental rejection. These youth face an insurmountable barrier to actualizing their gender identity through a formal name change. Not having documents that match their gender identity places them in danger and harms their futures by deterring them from seeking employment and medical care.

In addition to statutory age, parental consent, and notice barriers, transgender youth face other legal injustices. Judges in at least three states have demonstrated bias in name change cases involving transgender youth. Those judges denied youth legal name changes, despite their parents’ approval. One judge, for example, questioned the transgender youth’s mental competency because of his gender identity and commitment to transition. To counter such bias, there must be a legal presumption that a name change is in a transgender youth’s best interest when that youth is committed to transitioning. Additionally, best interest standards in these cases must be modified to accommodate and protect transgender youth. Transgender youth are further marginalized by the costs and effort required to pursue a legal proceeding, the need to testify about deeply personal matters in court, and the dangerous risk of exposure by publication and hearing requirements in name change cases.

Addressing these access-to-justice problems through statutory change is critical, and the necessary legislative reform is straightforward. New Mexico, California, and Wisconsin have modeled some of the necessary legal reforms, but even those states need to do more to protect the well-being of transgender and nonbinary youth. States that fail to protect these youth only perpetuate their marginalization. Our transgender and nonbinary youth need those of us whose voices carry weight in the legislative and judicial systems to protect and advocate for them by improving our laws. Protection must begin with granting them the name they choose, the one that affirms and safeguards who they are. Transgender and nonbinary youth cannot wait for society at large to respect and defend their best interests.

* Associate Professor of Law, University of New Mexico School of Law. My deepest appreciation and gratitude to Julie Sakura, Sarah Hyde, Nathalie Martin, and Shari Weinstein for their generosity and invaluable input. Many thanks also to the outstanding Michigan Journal of Law Reform team, especially to Elizabeth Powers and John Juenemann, Articles Editors, for their insightful, vital feedback and valued collaboration.