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Non-citizen transgender man sues state to change name

October 5, 2016

He was trying to obtain a rental vehicle when he heard the question he hates most — “Can I see your I.D.?”

John Doe, a 31-year-old Mexican man with asylum in Indiana, handed his legal identification to the sales representative and watched the familiar look of confusion come across the salesman’s face. The name on the I.D. said Jane, an understandably confusing fact considering Doe both looks like and identifies himself as a man.

“Immigration messed my papers up,” Doe said in response to the salesman’s quizzical looks — an answer that, this time, was satisfactory.

But that’s not the truth. He gave that answer only to avoid revealing one of the most intimate details about his life — that he is biologically a woman, but has chosen to live as a transgender man.

Usually, Doe does not have to reveal his transgender status to anyone he does not feel comfortable with, but the name listed on his legal I.D. can force the subject to come up. Because of an Indiana law that prohibits non-citizens from legally changing their names, John Doe must continue to identify as Jane on all documents until he becomes a naturalized citizen.

That law, found in Indiana Code 34-28-2-2.5, is one of the last remaining factors Doe says is prohibiting him from living fully within his gender identity as a man, so he is challenging its constitutionality in John Doe, formerly known as Jane Doe, v. Pence, et al., 1:16-cv-2431.

In the suit, which was filed in U.S. District Court for the Southern District of Indiana, Doe is suing Indiana Gov. Mike Pence, Attorney General Greg Zoeller and Marion County Clerk Myla Eldridge in their official capacities for a law he says violates his rights to free speech, equal protection and due process.

Doe’s trouble with the law first came up in late 2013, when he contacted the government to ask what documentation he would need to provide to legally change his name on his official paperwork and identification. He was told that, among other things, he would have to provide proof of his U.S. citizenship.

Although he has been living in Indiana since 1990, was granted asylum in the U.S. in 2015 and applied for permanent U.S. residency last month, it will still be at least another five years before Doe is a naturalized citizen.

In the meantime, the transgender man said he lives in constant stress and fear of someone finding out that he is a biological woman living as a man. That very fear is why he sought asylum in the U.S. as a way of escaping persecution in Mexico.

His concerns are exacerbated by the fact that his wife’s family does not know he is transgender, which prompted him to file a motion to proceed anonymously throughout the case.

barragan-matthew-mug.jpg Barragan

Both Doe and Matthew Barragan, a staff attorney at the Mexican American Legal Defense and Educational Fund in Los Angeles who is acting as pro hac vice counsel for Doe, said House Enrolled Act 1047 — which eventually became the portion of Indiana Code Doe is now challenging — was passed in 2010 as a way of limiting the ability of immigrants to change their names once they entered the United States.

smith-milo-mug.jpg Smith

But Milo Smith, R-Columbus, a co-author of HEA 1047, said the conversations about the bill in 2010 were about much more than immigration.

HEA 1047 was designed as a way of curbing voter fraud, Smith said. The idea was to help ensure that one person could not register to vote as two different people, so the citizenship requirement, as well as other provisions such as proof of date of birth and a list of all other names previously used, were included as extra precautions.

baird-barbara-mug.jpg Baird

But in the official court filings, Barbara Baird of the Law Office of Barbara Baird in Indianapolis, Doe’s local counsel, wrote of multiple occasions when Doe was forced to reveal his transgender status against his will because of the 2010 law.

When Doe stumbled across MALDEF and the Transgender Law Center, which is also acting as pro hac vice counsel in the suit, in 2014, he was finally given the support he needed to make his case in court, Baird said.

Constitutional questions

There’s little precedent for a case like this, Baird and Barragan said, but Doe’s counsel still say they have a solid case that will point to obvious constitutional violations.

Barragan said the law violates the First Amendment right to freedom of speech by forcing non-citizen transgender people to legally identify as a name that they would not otherwise voluntarily use.

transgender-factbox.gifThe law also violates two due process rights under the 14th Amendment, Barragan said — the right to equal protection under the law and the right to autonomy in fundamental decisions. Requiring transgender people to share their transgender status forces them to divulge medical and other intimate details that other citizens are not forced to share, which violates the 14th Amendment, he said.

But Smith said laws such as HEA 1047 are written to protect natural-born or naturalized citizens, not non-citizens.

Doe bristled at that argument, saying his citizenship status shouldn’t affect his rights as a human being.

“It’s kind of messed up how the U.S. gave me asylum to protect myself from Mexico, but I can’t even change my name to have the same protection here,” Doe said.

Similarly, Baird said the Constitution was written to protect “all persons,” not just citizens.

National conversations

Aside from the question of constitutional rights, Doe’s suit deals with two of the most controversial issues in modern politics — immigration and transgender rights — and the implications of that national conversation have already begun to manifest themselves in Doe’s case.

In response to Doe’s filing, Barragan said he has heard from refugees who have called to thank him for taking on a case that could also affect their lives. Many of those refugees’ names were misspelled on official U.S. documents because of clerical errors, Barragan said, but under Indiana law they cannot have those errors legally fixed until they become naturalized citizens.

Additionally, Barragan said he often fields questions from people wanting to know if Pence is named as a defendant in the suit only because he is the 2016 Republican vice presidential candidate. Pence was not yet in office when the law was enacted in 2010, so he is being sued in his current official capacity as Indiana governor, Barragan said.

Kara Brooks, spokeswoman for Pence, said the governor’s office does not comment on pending litigation.

Eldridge also declined to publicly comment on the suit, saying in a statement that her office was determining how to best respond considering the suit deals with state law, not local policies that would fall under her jurisdiction.

Immediately after the filing, Zoeller also released a statement through his office that said he would respond to Doe’s complaint at the appropriate time. The attorney general also pointed out the burden of proof would be on Doe, not the state.

Baird said the court had partially approved Doe’s motion to proceed anonymously in late September, so he and his counsel are waiting to learn if the state will file a challenge to that motion.•

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