Supreme Court, Albany County, March 29, 2023

Legal Aid Society Northeast, Albany (Michael Raymond Hernandez of counsel), for petitioner.

Petitioner in this proceeding seeks to change his name and sex designation.^[FN1] The reason for such application is set forth in the petition as follows: "I have undergone clinical evaluation and treatment for a person diagnosed with Gender Dysphoria and I am making a gender transition to a new gender of male from female, I want to change my name to a male name. [JH] is a name that reflects my gender choice."

Petitioner also seeks an order directing that the records of this proceeding be sealed, subject to be opened only by the court for good cause shown or at the request of petitioner.^[FN2] As set forth below, that application is granted, with narrow exceptions. I issue this decision and order, with the petitioner's name redacted except as to initials, to explain a concern that it raises, and the court's approach to it.^[FN3]

The concern is presented by the petition's indication that the applicant was convicted in 2012 of the class A misdemeanor of engaging in sexual acts with a minor in violation of Penal Law{**79 Misc 3d at 1054} § 130.20 (2),^[FN4] and was sentenced to a six-year term of probation. As a result of that conviction, petitioner is registered as a level one sex offender.^[FN5] This revelation raises the obvious concern that a name change might interfere with petitioner's registration or the [*2]enforcement of his sex offender status, or with any future consideration of his prior offense in any civil or criminal context in which it may be relevant. At the same time, recent legislative enactments have placed strictures on the courts that complicate my ability to seek input from outside parties, and which therefore make it difficult to determine if such concerns are genuinely implicated.

The first such enactment is the Gender Recognition Act, signed into law by then-Governor Cuomo as chapter 158 of the Laws of 2021. The law made a number of amendments to the name change statute set forth in article 6 of the Civil Rights Law, and created a new article 6-A to authorize and govern petitions for change of sex designation. As a relevant here, those amendments were as follows:

• Civil Rights Law § 62 was amended to bar the court from requiring any "pre-hearing notice" except as specifically required by the statute, and to preclude the court from conditioning the entry of a name change order on notice to any third party, except by written order detailing the court's reasoning, and to prohibit the court from requiring consent for any name change from any party except the petitioner. (L 2021, ch 158, § 2.)

• Civil Rights Law §§ 63 and 64 were amended to remove the requirement of publication of the name change before it became effective. (Id. §§ 3, 4.)

• Civil Rights Law § 64-a was amended to clarify the "totality of the circumstances" standard for sealing a name change order, providing that such circumstances "shall include, but not be limited to, a consideration of the risk of violence or discrimination against the applicant, including such applicant's status as transgender," and the {**79 Misc 3d at 1055}court "shall not deny such sealing request solely on the basis that the applicant lacks specific instances of or a personal history of threat to personal safety." (Id. § 5.)

• Civil Rights Law §§ 67, 67-a and 67-b (comprising article 6-A) were added to create a process by which a court may grant leave to change sex designation, requiring that the order granting such application be sealed "to be opened only by order of the court for good cause shown or at the request of the applicant." (Id. § 6.)

The rationale behind the limitations on the court's notification of third parties was set forth at length in a joint memorandum submitted in support of the bill by 20 advocacy organizations. The memo expressed the concern that "many judges go beyond the statute to require notification to and consent from parties outside the scope of the contemplated regime" (Joint Memo of Support, Gender Recognition Act, Bill Jacket, L 2021, ch 158 at 16, 22). As examples, the memorandum mentioned the practice of courts requiring "notification to or consent from" parents, sentencing judges, prosecutors, spouses or federal immigration authorities (id. at 22). The memo said that such conditions "are an infringement on a person's right to go by the name they choose," and "have the potential to put petitioners in a dangerous situation" if they result in disclosing an individual's transgender status under unsafe circumstances (id.). Moreover, the memo noted that if the party from whom consent is sought cannot be located or does not agree, the requirement that such party approve the application may serve as an "insurmountable barrier" to the name change (id.).

The memorandum noted that the bill would "not eliminate judicial discretion to order appropriate notifications," but "simply clarifies under what circumstances notice is appropriate," in particular by maintaining the existing mandatory notice provisions (id.). Moreover, the clause under which a judge could write a decision "showing good cause why a person or entity outside the current standard must be notified in a given case" meant that "[i]f the notice can be justified, [*3]a judge remains within their discretion to order it," or if it is not justified, the applicant has a decision from which he or she may appeal (id.).

Notwithstanding this last point, the law was further amended the following year in chapter 58 of the Laws of 2022,{**79 Misc 3d at 1056} as part of the legislation accompanying the New York State budget, and thus enacted without any legislative history.^[FN6] The new amendment removed the following language from section 62: "The court shall not condition the entry of an order on notice to any other party or to any city, state or federal agency except by written order detailing the court's reasoning for requiring such notice and showing cause why such notice should be served." (L 2022, ch 58, § 1, part R, § 2.) As a result, the law now says nothing one way or the other about whether the court may condition entry of the order on notice to any party. The amendment left intact the other provisions cited above, including the bar on any "pre-hearing" notice^[FN7] except as provided in Civil Rights Law § 62 (1) and (2), which concern notice to a parent of a child's name change, and notice in certain circumstances where the individual seeking the change is incarcerated, neither of which apply in this case.

What I am left with is this: any notice of a name change made prior to the date on which the petition will be heard is banned in the present case (since the statutory exceptions do not apply). As to conditioning entry of an order on notice to any third party, the only relevant provision is in Civil Rights Law § 64 (2) (a), which requires that a certified copy of the name change order be provided in two instances: (1) to the Division of Criminal Justice Services (DCJS) where the petitioner has been convicted of certain felonies, and (2) to a court that imposed an order of child support to which the petitioner is subject.

In light of this background, the petition before me presents the following dilemma: As a result of his conviction, petitioner is subject to certain requirements overseen by DCJS, including the need to update his photograph periodically (see Sex Offender Registration Act [SORA] [Correction Law § 168-b (1) (b)]). In addition, DCJS is required to maintain information on{**79 Misc 3d at 1057} petitioner as a registered individual, including his "name, all aliases used, date of birth, sex, race, height, weight, eye color, driver's license number, home address and/or expected place of domicile, any internet accounts with internet access providers belonging to such offender and internet identifiers that such offender uses" (see SORA [Correction Law § 168-b (1) (a)]). A name change would immediately render this information inaccurate. It is possible that DCJS has the means to update and correct this information post-name change, using other data such as a Social Security number. It is also possible, on the other hand, that the name change would have a deleterious impact on DCJS's ability to monitor a registered individual, particularly if it lacked notice of the change. The problem, as I read the statute, is that I am barred altogether from notifying DCJS prior to the return date of the pending petition, and getting its input on how such an order would impact the [*4]agency's monitoring functions (or any other consequence resulting from the conviction)—including an indication from the agency that the change would not pose a problem at all, if that is the case.

One means of addressing this concern would be to deny the application altogether, or to deny petitioner's request for sealing the order. Both outcomes would be contrary to the spirit of the amendments to Civil Rights Law § 64-a and article 6-A.^[FN8] The memorandum in support makes clear that the 2021 legislation was intended to facilitate gender-based name changes (as well as changes in sex designation), and in regard to sealing the record, the Legislature specifically found transgender status to be a ground for such (see Civil Rights Law §§ 64-a, 67-b). Moreover, it is not clear that the name change here would actually pose any obstacles to agency oversight; rather, there is uncertainty as to how the change will impact SORA enforcement or any other collateral consequence of the conviction. In any case, such enforcement does not depend on public disclosure of the change; at most it requires that DCJS be made aware of it.

The language of the statute, moreover, leaves open a means to address this issue. As noted, section 64 (2) (a) requires post-order notice to DCJS of certain felony convictions. That provision, and indeed article 6 generally, neither requires nor prohibits{**79 Misc 3d at 1058} post-order notification to DCJS or any other agency when the applicant has been convicted of a crime not included on the section 64 (2) (a) list.^[FN9] A review of the statute, moreover, indicates that it does not preclude the possibility of post-order notice under circumstances outside those specifically delineated. For one thing, the statute contains a specific provision barring pre-hearing notice except as provided by statute, but no such language concerning post-hearing notice (Civil Rights Law § 62 [3]). In addition, it states that "[u]nder no circumstances shall the court require notice to United States immigration and customs enforcement, United States customs and border protection, United States citizenship and immigration services, or any successor agencies, or any agencies having similar duties" (id.). But if both pre-hearing and post-hearing notice can only be given under the instances listed in the statute, then this language is pure surplusage, since under such a reading there is no situation in which notice to ICE (Immigration and Customs Enforcement) or some comparable agency would be allowed.

Given the nature of the conviction at issue (one subject to statutory registration requirements, but not to mandatory notification under Civil Rights Law article 6), and the statutory prohibition on pre-hearing notice, such post-order notice is the only available path to ensure the name change does not interfere with enforcement of SORA, while at the same time comporting with the intent of the Gender Recognition Act to allow for name changes in these circumstances, and for the [*5]record of such to be sealed. To ensure that notice to DCJS will not interfere with the confidentiality of the record, the agency will be directed that the order may be used only for the limited purpose of allowing the agency to carry out its regulatory{**79 Misc 3d at 1059} oversight and to maintain an accurate criminal history record for the applicant.^[FN10]

By letter dated January 10, 2023, I provided notice to petitioner's counsel that the court would "provide notice of its Order, after it is filed, to the Department of Criminal Justice Services, [and t]he Department [would] be directed that such information may be used only in connection with matters related to the 2012 conviction, such as its oversight of the registration process." Counsel has made no objection.

Accordingly, it is hereby ordered that the petition for a name change and a change in sex designation is granted, as set forth on the accompanying order, which shall also direct the sealing of all papers connected with this petition except as noted herein; and it is further ordered that the Clerk of the Court is directed to provide a certified copy of the name change order, along with this decision and order, to counsel for the Department of Criminal Justice Services, to be used only in connection with matters related to the 2012 conviction, such as its oversight of the registration process, and shall otherwise treat this decision and order and the accompanying order as confidential unless directed otherwise by further order of the court; and it is further ordered that upon good cause shown this decision and order, and any further orders of the court, shall be captioned only with the first two letters of petitioner's name.