Should a transgender minor be allowed to change his or her name without the consent of one of his or her parents? New Jersey broke new legal ground in a custody case that asked just this question. A child named Veronica wanted to be known as Trevor. The mother supported the decision and the father did not. New Jersey decided the issue by examining all of the available social science data, ultimately allowing the name change.
Changing the name of a child falls under custody law. Unless emancipated, a child’s parents are required to consent to changes to a child’s school, medical care, and name. If the parent’s do not agree, they have to go to court to obtain an order allowing a change. When that happens, the court will apply the “best interests of the child” analysis.
An analysis of the best interests of a child can take into account many different factors. In a case such as this, where the child desires to have a name that matches the gender that they identify with, the court has little to go on. The standard analysis does not touch on issues such as identity, at least not at the deep level that is involved in transgender issues. The New Jersey Superior Court listed these elements as part of its analysis:
(1) The age of the child;
(2) The length of time the child has used the preferred name;
(3) Any potential anxiety, embarrassment or discomfort that may result from the child having a name he or she believes does not match his or her outward appearance and gender identity;
(4) The history of any medical or mental health counseling the child has received;
(5) The name the child is known by in his or her family, school and community;
(6) The child’s preference and motivations for seeking the name change;
(7) Whether both parents consent to the name change, and if consent is not given, the reason for withholding consent.
These were compared to the best interest analysis of names changes that already existed in the case law of New Jersey. These included the following: How long the child has had the name, identification with a family, potential anxiety or embarrassment caused by having a different surname from the custodial parent, child’s preference, parental misconduct, community respect or disrespect attached to a name, motivations for the change, sibling relationships, whether mother intends to change her name upon marriage, and effect on the relationship between parent and child. (Gubernat v. Deremer, 140 N.J. 120 (1995)).
The difference between the regular analysis and the analysis in the case of a transgendered individual is very similar. The main difference is the addition of the effect of having a name that does not match the gender with which the individual identifies. For example, numbers three and four both show respect for the new understanding that the field of mental health has given our society. There is also a shift towards having the court make a legal reality what the individual, family and friends actually practice every day. If the individual is known with a name that belongs to the opposite gender in our society, then the court seems to be suggesting that it will make it official.
The court stated that the most compelling reason for granting the name change was the effect of having a name at odds with the individual’s identity. The court cited several studies of bullying and of the effect of validating the gender identity of a transgender individual as grounds for its decision.
Other differences have been simplified in this case. Gubernat looked at the motivations of the parents, misconduct and the view of the community towards the name. All of these elements in the Gubernat analysis come in under different elements in this case. Misconduct and motivations would fall under the final element, which says, “…if consent is not given, the reason for withholding consent.” In other words, if you have a good reason to object to the name change, you may present it to the court. If there was misconduct by the party objecting, then that misconduct would weigh against the court accepting the party’s argument.
Clearly the emphasis is on the effect of the name change on the minor who is requesting it, and if the mental health records and need for a new identity are in the best interests of the minor, the parent’s motivations and misconduct are of secondary importance. Since the analysis is the best interests of the child, it is hard to argue with the court’s decision.
Read more here: http://www.judiciary.state.nj.us/attorneys/assets/opinions/trial/Sacklow-v-Betts.pdf