This article was published in partnership with The Marshall Project, a nonprofit news organization covering the US criminal justice system. Sign up for their newsletter, or follow The Marshall Project on Facebook or Twitter.
Alexandra Carson thought the job interview had gone well. Her experience managing a restaurant more than qualified her for the server position at a buffet chain near her rural Texas home, she said, and the friendly conversation made her feel like the job was secure. But the hiring manager’s demeanor changed when it was time to fill out some paperwork, and Carson had to explain why the legal name on her ID is male.
“She became very closed-off and brusque,” Carson recalled of the manager. “Suddenly, it was, ‘We have other people we have to talk to.’” A friend of Carson’s who worked at the restaurant later told her the manager admitted she did not hire Carson because she is transgender. “She would never have known,” said Carson, if not for the name on her identification.
Carson, 32, wants to change her name legally, but Texas bars people with a felony conviction from doing so until two years after they complete their sentence — including probation or parole. Carson, who is on parole, won’t be eligible until 2025. She is one of three trans women with previous convictions who sued Texas officials last year, arguing that forcing them to go by a legal name that doesn’t match their gender is unconstitutional.
Trans people filed four such lawsuits in 2019, challenging laws banning those with certain types of convictions from changing their name. In addition to the suit in Texas, there are federal suits pending in Wisconsin and Illinois and a state suit in Pennsylvania, where the first court hearing is next month.
The lawsuits detail stories that range from frustrating to chilling. Transgender people in prison in these states must use their birth name — often referred to as their deadname — on official mail and in the prison phone system. In federal prison, this means that every five minutes during a call, the phone system plays a recorded message with their former name. Several plaintiffs say they limit contact with family and friends to avoid this humiliation.
After release from prison, encounters with police can become fraught. During a traffic stop, police once accused one of the women of stealing her own car because of the male name on her driver’s license and registration.
“If the name that everyone is calling you consistently misgenders you, that’s tantamount to torture,” said Moira Meltzer-Cohen, one of the attorneys for the Texas plaintiffs. “And it signals an institutional disrespect that exposes trans people to violence and disrespect and harassment, from both staff and other prisoners.”
Trans people say the name-changing bans leave them vulnerable
No one has done a comprehensive count of how many trans people are incarcerated. The periodic federal survey of people in prisons and jails only allows for “male” and “female” categories. But 1,097 people self-report as trans among Texas’s 141,500 prisoners, according to the state corrections department. The federal Bureau of Prisons says 998 of its 175,000 prisoners are classified as transgender.
Though those numbers are relatively small, experts agree trans people are disproportionately caught up in the criminal justice system. Discrimination by potential employers and landlords and rejection by family force many transgender people into the underground economy. Bias among police leads to arrests for prostitution when they are simply walking down the street — “walking while trans” is a rallying cry among activists in the transgender community. In a 2015 survey, 2 percent of trans people interviewed said they had been arrested in the previous year.
Trans people whose names don’t appear to match their appearance say every job interview, traffic stop, and visit to a bank or a doctor puts them in a position “where I had to tell somebody about something that is none of her business: what genitalia I was born with,” said Carson, the Texas plaintiff. “It does leave me having to say things to people that nobody in that position would normally have to talk about.” (Carson declined to discuss her criminal conviction, saying it was more than a decade ago and does not reflect who she is now.)
There are at least 17 states that automatically bar people with some criminal convictions from changing their name, whether permanently or temporarily, according to a Marshall Project analysis of state laws. The laws are in flux: In 2017, lawmakers in California made it easier for trans people to legally change their names while incarcerated. By contrast, Indiana last year began prohibiting name changes for anyone with convictions for certain violent or sex crimes. With pushback from a group of formerly incarcerated advocates, Indiana lawmakers created exemptions for marriage, divorce, adoption, and religion — but not for gender transition.
The bans on name changes do not target transgender people specifically. Rather, lawmakers who back the rules generally say they aim to protect the public by preventing fraud and ensuring people’s criminal records are accurate.
“There’s a danger that someone will change their name and try to misrepresent themselves,” said Ed Clere, the Republican Indiana state representative who sponsored the ban there. “For example, someone who committed a crime against children, finding a way to get a job around children by hiding their past.”
For some advocates, however, these laws follow a history of politicians citing arguments about public safety and protecting children when passing measures that hurt transgender people.
A new name indeed makes it harder for someone’s past to surface on, say, an internet search. But trans advocates say there is little chance a different name would allow someone to hide from law enforcement or employers running background checks. Many states require anyone seeking a name change to first submit their request to state police or other officials. Social Security numbers and dates of birth — which employers often use for background checks — remain the same, as do prison ID numbers, DNA, and fingerprints.
Several plaintiffs in the name-change lawsuits argue that the First Amendment protects against compelled speech: being forced to identify yourself with a name that doesn’t match your identity. The Texas suit also argues that preventing a trans person from changing their name is cruel and unusual punishment, as it can increase the risk of violence and psychological suffering and add barriers to jobs and housing beyond what people with criminal records commonly face.
Texas Gov. Greg Abbott and Attorney General Ken Paxton, the defendants in the suit, have not replied in court and did not respond to requests for comment. In legal filings, officials in Wisconsin said the plaintiff was barred from bringing her suit by the 11th Amendment, which prohibits some lawsuits against states. In court papers in Illinois, Cook County State’s Attorney Kim Foxx, one of the defendants, argues it’s not her job to enforce the name-change law.
The first round of arguments will come next month, in the Pennsylvania case. State authorities there argue that an official ID is government speech, not private speech, and that the law banning name changes is “rationally related to the legitimate state interest of protecting public safety.”
The women at the heart of the lawsuits agree the laws compromise public safety — theirs and that of other trans people. Eisha Love, a plaintiff in the Illinois suit, is barred from legally changing her name because of a 2015 aggravated battery conviction. She said she has stopped going out with friends at night because of all the times bouncers at dance clubs looked at her ID and whispered, “I think that’s a man.”
“You’re always at risk,” Love said. “It makes you feel unsafe.”