In re T.I.C.-C.

• Decision Date: 16 February 2022
• Docket Number: DOCKET NO. A-1706-20
• Parties: In the MATTER OF the Application of T.I.C.-C. to Assume the Name of A.B.C.-C.
• Court: New Jersey Superior Court — Appellate Division

470 N.J.Super. 596

271 A.3d 350

In the MATTER OF the Application of T.I.C.-C. to Assume the Name of A.B.C.-C.

DOCKET NO. A-1706-20

Superior Court of New Jersey, Appellate Division.

Argued February 3, 2022

Decided February 16, 2022

Celeste Fiore argued the cause for appellant A.B.C.-C. (Argentino Fiore Law & Advocacy, LLC, attorneys; Celeste Fiore and Jodi Argentino, of counsel and on the brief; Christina Salvia, on the brief).

Lowenstein Sandler, LLP, and David Brown and Charlie Arrowood (Transgender Legal Defense and Education Fund) of the New York bar, admitted pro hac vice, attorneys for amicus curiae Transgender Legal Defense and Education Fund, National Center for Transgender Equality, Masjid al-Rabia, and Muslim Alliance for Sexual and Gender Diversity (Lynda A. Bennett, of counsel and on the brief; Michael J. Scales, David Brown and Charlie Arrowood, on the brief).

Before Judges Haas, Mawla and Mitterhoff.

The opinion of the court was delivered by

HAAS, J.A.D.

Appellant A.B.C.-C. is a transgender man who sought to change his name to conform his identification documents with his gender identity. As part of his application, appellant submitted evidence showing transgender people are subject to a particularized threat to their safety based upon their identity, and asked that the record of his name change be sealed to protect him from such discrimination and violence. The trial court denied appellant's request. Having considered the issues appellant presents in light of the applicable law, we are satisfied he demonstrated good cause to seal the record. Therefore, we reverse the trial court's denial of appellant's motion, order that the record be sealed, and remand for any necessary further proceedings.

I.

On July 28, 2020, appellant filed a verified complaint and certification seeking to change his name. In his complaint, appellant asserted that: he had never been convicted of a crime and there were no criminal charges pending against him; there were no unsatisfied judgments of record or suits pending against him; he was not making the application with the intent to avoid creditors or to escape or evade criminal or civil prosecution or for any other fraudulent purpose; he had not made any previous applications to assume another name; and he did not have any pending applications for a name change in any other court or jurisdiction. Appellant asserted he sought the name change in order to reflect the name he uses in everyday life and who he is.

On August 5, 2020, the trial court set a September 14, 2020 hearing date. Pursuant to Rule 4:72-4 as it then existed, but since amended, the court also required that notice be published in a newspaper at least two weeks prior to the scheduled hearing.

On September 3, 2020, appellant requested an adjournment for time to file a motion to waive the publication requirement and seal the record.¹ On September 8, 2020, the court granted the adjournment request and set a new hearing date of October 13, 2020, but again required that notice be published in a newspaper at least two weeks prior to the hearing date.

On October 6, 2020, appellant filed a motion in which he requested to be identified in the public record only by initials, to seal the record, and to waive the rules requiring publication of the name change hearing. In support of this motion, appellant certified:

[1.] I desperately need to have my name changed because the name on my identity documents does not match the name I use in my everyday life. My documents do not match who I am, which causes confusion, discomfort, and the possibility of discrimination against me based upon this discrepancy. This discrepancy exists because my gender identity does not match with the name I was given at birth.

[2.] I know that other transgender people like myself experience harassment, intimidation, and bullying and even more serious violence when their identity documents do not reflect the person that they are.

[3.] I have been made aware that name changes are generally a matter of public record. I am concerned that disclosure of my personal, confidential, and private medical information could have a detrimental impact on my life and can result in harassment, intimidation, and bullying. I am concerned that the publication of my name change could interfere with my personal and professional life.

....

[4.]. I ask that the court grant my requests to keep my name change as private and confidential as possible given the extremely personal medical disclosure that will result from publishing the name change and having an open public record of same.

Appellant's counsel submitted a certification, attaching a portion of the executive summary section of The Report of the 2015 U.S. Transgender Survey National Center for Transgender Equality (Dec. 2016), USTS-Full-Report-Dec17.pdf (transequality.org), which documented the mistreatment suffered by transgender people and the importance of their obtaining identity documents that reflect their correct gender and name. Appellant's counsel also provided written notice of the proceeding to the Director of the Division of Criminal Justice (Division) as required by Rule 4:72-3.

On October 30, 2020, the trial court denied appellant's motion to seal the record and to waive the publication requirement. The court rejected appellant's "general concerns for being transgendered" as insufficient to meet the preponderance of the evidence standard for sealing judicial proceedings, stating:

Discrimination can occur for all kinds of reasons and not just the type claimed by the applicant. There is nothing in the law that says that a person claiming to be concerned for being discriminated against for being different is entitled to have a private court proceeding.

This court has had countless name changes by people who were changing their name for sexual identity reasons that did not ask to have a sealed record. That is not a reason to deny the application here, but it means that the court cannot find a reason to support the application on its own. The applicant has to show proof and there is not any.

In addition, the case was already filed and is publicly available on the internet. Civil cases can be found on the court's website, njcourts.gov, under the public/media tab and clicking on the civil and foreclosure search. In addition, the Attorney General was not given notice that this name change application was going to be requested to be done under seal.

On November 17, 2020, the Supreme Court instituted a change to Rules 4:72-3 and 4:72-4, which eliminated the publication requirement for all name change applications. The Court explained:

The Court's November 17, 2020 action will expand equal access to the courts for people who are poor, self-represented, and members of the LGBTQ+ community, including transgender women of color who disproportionately continue [to] be targeted victims of violence throughout our nation. Amending Rule 4:72 advances the Judiciary's goals of equal access, procedural fairness, and ongoing identification and elimination of obstacles to justice.

[Notice to the Bar: Name Change Applications -- Elimination of the Requirement of Newspaper Publication (Nov. 18, 2020).]

Thus, appellant no longer had to publish notice of his proposed name change.

On November 19, 2020, appellant moved for reconsideration of the denial of his motion to seal the record. In the motion papers, appellant's counsel advised the court of the amendments to Rules 4:72-3 and 4:72-4. Counsel also provided the court with a complete copy of The Report of the 2015 U.S. Transgender Survey, a portion of which had been provided on the previous motion. This report detailed the significant amounts of violence, harassment, and discrimination experienced by transgender people in various areas of their lives. It also specifically addressed the importance of transgender people obtaining a change of name that conforms with their gender identity, in order to reduce the negative interactions they faced.

Finally, counsel advised the court that the Division had been notified of the date for his name change hearing, as required under Rule 4:72-3. However, counsel had not received any indication that the Division opposed appellant's name change application or sought to participate in the proceedings.

On January 8, 2021, the court denied appellant's motion for reconsideration. In its written decision, the court reiterated its belief that appellant "failed to provide any changes in data or statistics that would indicate [appellant] is directly and inevitably in danger of irreparable injury or harm." The court observed that "New Jersey has laws specifically designed to protect against discrimination and violence" and had created a Transgender Equality Task Force "to prevent acts of violence and discrimination against the transgender community in the State." Under these circumstances, the court determined it could not "grant a petition [to seal the record] based on fear rather than actual events, especially with added protections from the State."

The court also stated that the record did not need to be sealed because appellant "has not indicated that [he] would keep the name change secret." Therefore, appellant was "asking that the court keep a secret [appellant was] not going to keep." Finally, the court again noted that appellant did not notify the Division of his motion to seal the record.

The court adjourned the hearing on appellant's name change application until January 15, 2021. Although the court acknowledged that the Division had "indicat[ed] that there wasn't any background issue here[,]" it again directed appellant to notify the Division of the new hearing date.

On January 15, 2021, the court granted appellant's name change application. At the hearing, the court modified its prior order denying the motion to seal the record to allow the "redact[ion of] medical references." However, the court did not specify the portions of the record that could be redacted,...