court of appeals reads law narrowly, denying confidential name change for transgender youth

By Gretchen Schuldt

​A transgender young man who sought a confidential name change to reflect his gender is not entitled to it because he could not show that publication of his name change petition would more likely than not put him in physical danger, the state Court of Appeals ruled.

While another judge might rule differently, Brown County Circuit Judge Tammy Jo Hock did not abuse her discretion in refusing to grant the request, Appellate Judge Gregory B. Gill Jr. wrote for the three-judge District III Court of Appeals panel. Gill was joined in the decision by Appellate Judges Thomas M. Hruz and Lisa K. Stark.

Robert, as he is identified in the decision, began questioning his gender identity when he was young and began wearing men’s clothing and going by his male name in elementary school.

“Students ‘verbally abused’ Robert for wearing men’s clothes and for using a ‘male’ name, and they reportedly called Robert ‘a fat ugly lesbian,’ ” Gill wrote. “According to Robert, these same students also ‘kicked and punched’ him.”

A teacher repeatedly said that Robert ‘had bad parents’ because they allowed him to wear male clothing and use a male name, Gill wrote. The same teacher called Robert ‘an ugly little girl’ ” and, when he cried, “the teacher threatened to audiovisually record Robert so that others could see that he was ‘acting like a girl and not like a boy,’ ” Gill said.

In middle school, students called Robert derogatory names, threatened him, and beat him up. A note left in his locker told him to kill himself.

The resulting anxiety led Robert to be hospitalized in a psychiatric unit, Gill said.

Robert transferred schools and things got better, though one student bullied him and one teacher refused to use his preferred pronouns.

Outside of school, though, the bullying continued, Gill said. Kids in the neighborhood called him names, threatened to shoot him with a BB gun, and beat him up.

He had sex change surgery and now physically appears as a 17-year-old boy.

Hock rejected Robert’s name change petition without holding a hearing on the matter. She found that the “test is not whether a person is uncomfortable with public disclosure of a name change but rather if the publication required under Wisconsin statutes would endanger the individual.”

Robert already was using his male name with family members, at school, and in personal dealings, she said. Anyone who has contact with him knows that he is transitioning and uses a male name, she said.

Robert appealed the ruling, arguing, among other things, that the law required him only to show that he could be endangered by the petition’s publication and that the word “endanger” includes physical, mental, or emotional harm.

The state, in opposing Robert, argued that he must show that it is more likely than not that he could be physically endangered if the name change is published. Showing that he faced the mere possibility of endangerment is insufficient, the state argued. It also said “endanger” referred only to physical harm.

“While we agree that we cannot ignore the legislature’s use of the word ‘could,’ Robert’s interpretation would essentially erase the requirement that a petitioner prove endangerment by a preponderance of the evidence because anything is ’possible,’ ” Gill wrote.

Instead, he said, “the burden is on a petitioner to demonstrate the likelihood of a future event, and he or she must demonstrate that it is more likely than not that future endangerment is possible.”

The appeals panel also agreed with the state that “endanger” does not include mental harm. The intent of the confidentiality statute, as shown through legislative correspondence to the bill’s drafters, was to “allow a victim of domestic abuse to petition the court for an exemption” to publishing a name change petition, Gill wrote. 

While not conclusive, the note “confirms that ‘endanger’ deals with physical harm, not emotional or mental harm,” he said.