By Tim Cwiek
Last month, Commonwealth Court rejected a petition from three trans women to strike down a Pennsylvania law prohibiting residents with serious felonies from changing their names. The 10-page ruling was handed down July 29 by Judges Bonnie Brigance Leadbetter, Patricia A. McCullough and Michael H. Wojcik.
The three-judge panel didn’t rule on the merits of the case. Instead, the panel ruled that the women’s attorneys hadn’t sued the proper parties. Thus, the panel dismissed the case. “We express no opinion on the potential merits of a future suit against proper parties,” the panel wrote. The panel didn’t specify the proper party to be sued.
The petitioners are Philadelphia resident Alonda Talley and Allegheny County residents Mo’Nique Porter and Priscylla Renee Von Noaker. They’re represented pro bono by the Pittsburgh-based Reed Smith law firm and the Transgender Legal Defense and Education Fund, based in New York.
The parties sued were the Pennsylvania Department of State, Pennsylvania Secretary of State Kathryn Boockvar and the Commonwealth of Pennsylvania.
In 1998, Pennsylvania enacted a law preventing residents convicted of serious felonies from legally changing their name. The trans petitioners claim the law violates their right to privacy, their right to control their name and their right to avoid compelled speech by the government. All of those rights are guaranteed in Pennsylvania’s constitution. State officials, however, say the law helps prevent fraud and other crimes, according to court papers.
In May 2019, attorneys for the trans petitioners filed a legal challenge of the name-change ban in Commonwealth Court. But in September 2019, state Attorney General Josh Shapiro asserted in court papers that the case should be dismissed as meritless. In February 2020, the three-judge panel heard oral arguments on the dispute in Pittsburgh.
According to court papers, Shapiro’s position is that the state Legislature acted properly in 1998 when it unanimously enacted the name-change ban for persons convicted of serious felonies. Those felonies include murder, voluntary manslaughter, rape, involuntary deviate sexual intercourse, sexual assault, aggravated indecent assault, robbery, aggravated assault, arson, and kidnapping.
Pennsylvania residents convicted of less serious felonies must wait at least two years before seeking a name change in Common Pleas Court, according to the state law. Any past criminal history would also be updated with the new name.
In court papers, Shapiro noted that Porter was convicted of aggravated assault in 2008, Talley was convicted of aggravated assault in 2009 and Von Noaker was convicted of rape in 1987. Shapiro’s brief stated that it’s proper for the women to be held accountable for their actions. Shapiro also emphasized that the name-change ban doesn’t discriminate on the basis of gender identity.
If the ban were declared unconstitutional, the women would still be required to attend a hearing and demonstrate to a Common Pleas Court judge that they’re acting in good faith. The law requires such a hearing, and the women aren’t challenging that provision.
A spokesperson for Shapiro issued this statement regarding the July 29 ruling: “We know that being required to live with a name that doesn’t represent who you really are creates real hardships. In this case, the Commonwealth Court dismissed the petition that challenged the constitutionality of current Pennsylvania law, without reaching any decision on the merits of petitioners’ claims. Our office is required to defend existing law. It is up to the General Assembly to change those laws. Attorney General Shapiro has helped win significant fights for transgender Pennsylvanians. And as he has demonstrated throughout his career, Josh will not hesitate to fight for — and to expand — LGBTQ rights whenever he is able to.”
M. Patrick Yingling, an attorney for the petitioners, expressed disappointment with the court’s ruling. “Obviously, we’re disappointed,” Yingling told PGN. “We disagree [with the ruling] and we’re weighing our options on where to take it next. This isn’t over. We’re considering all of our options, including the possibility of an appeal.”
If the choice were made to appeal to the Pennsylvania Supreme Court, a notice of appeal would have to be filed by Aug. 28, Yingling said.
Justin F. Robinette, a local civil-rights attorney, expressed concern with the July 29 ruling. “To have expended judicial resources like this — and to not get an answer at all on the actual issue presented — is an extremely disappointing result,” Robinette told PGN. “With all due respect, if it were my case, I would not have filed it unless I identified the right party to sue first. If I’m not sure — out of an abundance of caution, I name all possible parties. I would also name an anonymous or unknown defendant. That could have prevented the kind of outcome that resulted here. Moving forward, I would suggest to attorneys that they consider starting over again and filing at the lower-court level — either state or federal — like most constitutional litigation. I admire their efforts on behalf of the transgender community. I hope they continue to litigate the case aggressively, and that we’ll see a successful result.”
Thomas W. Ude Jr., legal and public policy director at Mazzoni Center, expressed support for the trans petitioners.
“For many people who are trans, nonbinary, or queer, a legal name change is affirming and vital,” Ude said in an email. “Without it, providing an ID means showing a name that risks discrimination, harassment, and violence. But the law currently prevents anyone with a felony conviction from changing their name — even after completing their sentence, and even though the name on their criminal history would also be updated. That barrier imposes an extra penalty on anyone convicted of a felony. But for trans, nonbinary, and queer folks, it requires them to continue using an ID that exposes them to real danger.
“Depending on the type of felony, that extra penalty may last two years for some; for others, it is a life sentence. While the court’s decision did not end that danger, this fight is not over. We applaud the courage of Mo’Nique Porter, Alonda Talley, and Priscylla Von Noaker — and their attorneys — in taking on this fight. While this is not the ruling they’d hoped for, the struggle continues — no doubt joined by others — and will prevail. And when that barrier is gone, many people, including many Mazzoni Center clients, look forward to an official court decree bearing their name,” Ude concluded.
Tim Cwiek is a reporter for the Philadelphia Gay News, where this story first appeared.