Prior to September 1, 2021, name change applications were required to be made public both upon request for inspection (Rules 1:2-1, 1:38-1) and by way of a publication requirement in a newspaper for two (2) weeks specifically for these types of proceedings (Rule 4:72-4). However, if an applicant desires to have the record sealed they must have proved, by a preponderance of the evidence, good cause to seal by order of the court. The amendments to Rule 1:38-3 now specifically excluded from public access “all records in actions for a name change[.]”

In the Matter of the Application of T.I.C.-C. to Assume the Name of A.B.C.-C. is an Appellate Division decision regarding a name change application, which predated the amendments discussed above. The applicant was seeking a name change to conform his identification documents to reflect his gender identity as a transgender man. Ultimately, his name change application was granted. However, his request to seal the record was denied initially and again following a motion for reconsideration. His appeal of the denials to seal the record followed.

As noted above, the applicant’s filings predated the amendments that excluded from public access name change records. Therefore, it was the applicant’s burden to prove by a preponderance of the evidence good cause to exclude these records from public access. Additionally, the applicant sought to waive his requirement to publish the application in a local newspaper. In support of his application to seal the record, the applicant cited experiences of other transgender people suffering from harassment, intimidation and bullying or even serious violence. Additionally, there was a stated concern that disclosure of personal, confidential and private medical information would have a detrimental impact and result in harassment, intimidation, bullying and violence. Even more, there was a stated concern regarding the negative interference with his personal and professional life.

In denying his initial application, the trial court deemed his concerns to be general and not particular to the applicant. Following the Court’s denial on October 30, 2020, the Supreme Court of New Jersey amended Rules 4:72-3 and 4:72-4 to eliminate the need to publish name change applications in a newspaper. In the applicant’s Motion for Reconsideration, he cited these amendments and the Supreme Court’s advisement as to why these amendments were made. Specifically, the amendments were made to “expand equal access to courts for 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.”

The matter was not heard until January 8, 2021. The Motion for Reconsideration was denied. The trial court deemed the new information as irrelevant, that there was no changes in data or statistics to support that the applicant was directly or inevitably in danger of irreparable injury or harm. In other words, the trial court explicitly held that it would not grant an application to seal the record based upon fear, rather than actual events. In holding this, the trial court cited to the Transgender Equality Task Force as existing to protect against these very concerns. Even more, the trial court found that the applicant was attempting to make secret to the public what he had otherwise disclosed to close confidants.

Following the granting of his name change application, this appeal followed. The Appellate Division was tasked with deciding whether the trial court abused its discretion in failing to seal the requested documents from public access – both the initial denial and the denial of the Motion for Reconsideration. In doing so, the Appellate Division indicated that his filings occurred at a time prior to the Rules amendments discussed above.

It was the applicant’s burden to show that there was good cause, by a preponderance of the evidence, to seal the record. In noting this, the Appellate Division highlighted that confidentiality is more important in certain circumstances than others. Additionally, it noted that the need for secrecy should extend no further than necessary to protect the confidentiality of the applicant seeking it.

In reviewing the case below, the Appellate Division indicated that the very defined and serious injury which the applicant sought to address was the violation of his interest in privacy in being transgender. By noting this, the Appellate Division stated explicitly, “it is difficult to imagine a more intimate, personal and private matter than whether a person’s gender identity confirms with the sex they were assigned at birth.” By comparison, the Appellate Division noted, this substantially outweighed any presumption for public inspection, as discussed further below.

Three critical factors were highlighted on appeal:

  1. The litigation entails revelation of highly private and personal information;
  2. The very relief sought would be defeated by opening the record to the public, and therefore revealing a given birth name that conflicts with his gender identity; and
  3. The case is a purely private matter with no meaningful public interest.

The Appellate Division held that the trial court erred in discounting his expressed fears of harm and discrimination. In discounting these fears, the trial court highlighted that he did not testify to his own personal experience of violence against him based upon his gender identity. In response, the Appellate Division held that his failure to testify as to specifics instances personally does not negate the fact that such violence does exist and that the trial court could be facilitating such violence by refusing to grant the request to seal the record.

Further, it noted that the very Transgender Equality Task Force cited by the trial court specifically recommends that name change proceedings for transgender applicants be kept private to protect them from discrimination and violence. If the trial court’s decision were upheld, it would violate the applicant’s right to privacy and heighten the risk of harm by making it easier for the public to identify him as transgender.

Courts are also tasked with weighing the privacy interest in comparison to the public interest. Here, the Appellate Division noted that the only public interest in name change applications are protect against those seeking to avoid or obstruct criminal prosecution, avoid creditors or perpetrate criminal or civil fraud. None of that was at issue in the instant matter.

Further, the notion that the applicant was informing his close family and friends of his gender identity did not mean he was required “to disclose that to the world.” The trial court also discredited the applicant, as he did not file his initial complaint under seal. However, as the Appellate Division noted, he could not have done so absent a Court Order. Additionally, in any event, the relief he sought would have retroactively caused the entire record to be sealed. Finally, that other transgender name change applications were not sealed was of no moment to this applicant. Each and every person has different comfort levels and desires to share their gender identity with the world.

Based upon the foregoing reasons, the Appellate Division reversed the trial court’s orders, required the matter to be sealed and remanded for any further proceedings because the trial court mistakenly exercised its discretion to deny his applications after he made a compelling showing of good cause.

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