Page 3
Court of Appeal:
Transgender Person Has Privacy Right to Conceal History
Opinion Says Sealing Entire Record of Name, Gender Change Is Appropriate Where There Is Harassment, Absence of Fraudulent Motives, No Way to More Narrowly Tailor Order
By Kimber Cooley, associate editor
The Fifth District Court of Appeal has held that a person has a constitutionally protected privacy right to conceal transgender identity such that a petitioner might be able to successfully petition to have all records sealed relating to her name-change and judicial gender-reclassification.
Declaring that the question of sealing is to be determined on a case-by-case basis, the court found that the petitioner successfully established that a trial judge erred in denying the request to seal the entire record where she presented evidence of online harassment as a result of her transgender identity, there were no concerns that the sealing would lead to fraud, and there was no way to more narrowly tailor the order.
At issue is an application of California Rule of Court 2.550, which provides:
“The court may order that a record be filed under seal only if it expressly finds facts that establish:
“(1) There exists an overriding interest that overcomes the right of public access to the record;
“(2) The overriding interest supports sealing the record;
“(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;
“(4) The proposed sealing is narrowly tailored; and
“(5) No less restrictive means exist to achieve the overriding interest.”
Appealing an order only partially sealing court records was Madeline Thompson (so identified in court records but referred to in the opinion as “M.T.”). Thompson was born a male—named Anthony Thompson—but has presented as a female since childhood.
In October 2017, Thompson, then 19, petitioned the court for legal recognition of her female name and gender identity. Included with the request was a physician’s affidavit attesting that Thompson had undergone clinically appropriate treatment for gender transition.
Stanislaus Superior Court Judge Timothy W. Salter granted the petition.
Request to Seal
Thompson returned to court in 2023 to request that the court seal the entire record of her name and gender change, asserting that she was harassed online after being “outed” on social media as transgender and subjected to slurs and intimidation, including the publication of her home address, phone number, and former name. Stanislaus Superior Court Judge John Mayne partially granted the request.
Mayne expressed doubt that the sealing of records would “solve the problem” and ordered that the 2023 application and supporting documentation be sealed along with the physician’s letter attached to the initial petition. He declined to seal any remaining documents, noting that California’s liberal name change policy carries with it a strong presumption in favor of keeping the records public.
Justice Kathleen Meehan wrote the opinion, filed Tuesday and published on the Court of Appeal website yesterday, reversing the order and remanding with directions to seal all records revealing Thompson’s name change or gender correction. Acting Presiding Justice Donald R. Franson Jr. and Justice Mark W. Snauffer joined in the opinion.
Privacy Right
Meehan explained that “[w]e have not unearthed any California cases specifically addressing whether a transgender person has a privacy interest in concealing their transgender identity that may support sealing records under rule 2.550(d).”
However, she pointed out that “[p]rivacy is an inalienable right enshrined in the California Constitution” and is similarly recognized by federal constitutional law. Both state and federal jurisprudence explain that the right encompasses “informational privacy” including limiting disclosure about a person’s bodily condition.
Noting that “a handful of our sister states” have found that risks to transgender individuals support sealing name change records, she opined:
“Transgender people experience harassment and violence at levels greater than other segments of the American public. A 2022 national survey of transgender people revealed that 39 percent of respondents reported being harassed online, nearly one-third (30 percent) reported being verbally harassed, and 3 percent reported being physically attacked in the last 12 months….These dreadful statistics make self-evident why transgender people have an interest in deciding with whom they disclose their transgender identity.”
Taking these factors into account, Meehan declared:
“We conclude whether a transgender person’s gender identity conforms with their assigned sex at birth is intimate personal information entitled to protection under the right to privacy. A transgender person thus has a privacy interest in concealing their transgender identity.”
Burden Remains
However, she remarked that “[r]ecognition of this interest does not relieve appellant of her burden to show her records must be sealed under rule 2.550(d) because California law does not require confidentiality in transgender adults’ name change or gender marker correction records.”
Agreeing with the trial court that the analysis requires “a case-by-case” inquiry into “whether a transgender adult has met the requirements” under the rule, she turned to the facts surrounding Thompson’s petition and said:
“[Thompson] presented evidence of harassment specifically directed against her. This included an anonymous offensive social media post revealing her transgender identity with appellant’s identifying information as well as the name of the doctor who signed the affidavit supporting her petition….The trial court found appellant reasonably believed someone located her public court records, but then found it could not conclude based on the evidence that her transgender status was discovered by review of the court’s records.”
She continued:
“It is unclear how appellant can conceivably produce evidence the anonymous poster and messengers learned of her transgender identity through the court records when the perpetrators’ identities are unknown. Furthermore, the details in the post and messages, especially the name of appellant’s doctor, evince more than a mere possibility the public availability of appellant’s records revealed her transgender identity to her persecutors. The court’s finding otherwise is unsupported by the evidence.”
Meehan added:
“The trial court sealed appellant’s application to seal and accompanying exhibits because the court found there was unlikely any public interest in the records showing abusive statements and pictures directed at appellant. Insufficient evidence supports the implied and related finding there is a public interest in all the records the court left unsealed. Nothing in the record shows appellant changed her name or corrected her gender marker for fraudulent purposes, or to evade creditors or criminal prosecution….Appellant’s overriding privacy and safety interests in concealing her transgender identity overcome the public’s presumed right of access.”
Narrow Tailoring
The justice acknowledged that “[w]hile appellant has shown her overriding privacy and safety interests support sealing her records, the sealing order must be ‘narrowly tailored to serve [those] overriding interest[s].’ ”
Looking to the information in the record, she commented:
“Given the strong presumption name change records be public, we endeavored to find a way to narrowly seal appellant’s records to protect her privacy interest in her transgender identity, but still retain a public record of her name change. Doing so proved elusive, however, due to the information in and nature of the few records left unsealed….The trial court’s decree and minute order reflecting that petition was granted show both her name and gender marker were changed. The court’s order denying the application to seal impliedly discloses appellant’s transgender identity. Essentially, the unsealed records documenting appellant’s name change also necessarily reveal her gender marker correction.”
Meehan found persuasive Thompson’s argument that however the court attempted to tailor the trial records, a link between those records and the present appeal would always publicly identify her as transgender due to the issues before the court and that her Social Security number remaining the same safeguards against concerns that she may be able to avoid financial obligations due to a sealed name change.
She concluded:
“[W]e ‘do not take lightly the public’s right of access to court proceedings and the interests served by public access’…but we have already concluded the record shows no specific, identifiable public interest in appellant’s name change and her records must be sealed in their entirety.”
The case is In re M.T., 2024 S.O.S. 3446.
Copyright 2024, Metropolitan News Company