Feb. 8. 2023 – State law required a transgender teen to show that publication of his name change petition could expose him to physical danger in order for the petition to remain confidential, the Wisconsin Court of Appeals has ruled.
In the Matter of the Name Change of R.I.B. v. Brown County Circuit Court, 2022AP323 (Jan. 18, 2023), the Court of Appeals District III also held that the teenager failed to show that publishing the petition could expose him to harm because the people who had physically bullied him because of his gender identity in the past were already aware of his name change.
Bullied Because of His Identity
R.I.B. was born a biological female but now identifies as a transgender male.
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
When he was 16 years old, R.I.B. filed a petition in Brown County Circuit Court, seeking a confidential name change under
Wis. Stat. section 786.37(4).
R.I.B. included with his petition an account of the emotional and physical abuse he’d suffered at the hands of classmates and a teacher after he began wearing men’s clothes and going by a male first name as an elementary school student.
R.I.B. began hormone therapy in 2019, at the age of 14 or 15; the therapy significantly changed his appearance. Shortly before his appeal, R.I.B. underwent surgery to remove his breast tissue and make his chest more masculine.
In his petition, R.I.B. cited stories from national news outlets that detailed transgender people being assaulted and killed because of their gender identity.
In his petition, R.I.B. said that because of the bullying he’d experienced, he was worried about being subjected to the physical violence described in the news stories. He also said that he believed that if his name change petition were published, students at his school and other people would bully and physically attack him.
The circuit court denied R.I.B.’s petition.
In its ruling, the circuit court concluded that publishing the name change petition wouldn’t endanger R.I.B., because R.I.B. was already using the male name he sought the petition for, and as a result anyone who came in contact with him already knew that he was a transgender male.
Meaning of ‘Could Endanger’
Writing for a three-judge panel, Judge Gregory Gill explained that under section 786.37(4), a circuit court may require a person who petitions for a confidential name change to comply with the requirement in section 786.37(1) that the petition be published in newspaper over three consecutive weeks, if he or she is unable to show by a preponderance of the evidence that publication of the petition “could endanger him or her and that he or she is not seeking a name change in order to avoid a debt or conceal a criminal record.”
Gill pointed out that under
section 786.36(2m)(b), a circuit court that grants a petition for a confidential name change may still order the disclosure of confidential information if: 1) good cause is shown; and 2) the court determines that the disclosure does not jeopardize the safety of the petitioner
Judge Gill noted that section 786.37(4) provides no definition for the phrase “could endanger,” and that no Wisconsin case had interpreted the phrase.
R.I.B. argued that the circuit court erred by requiring him to show that he could face physical harm if the petition was published.
R.I.B. also argued that the circuit court erred by analyzing whether publication of the petition “would endanger” him; all that the phrase “could endanger” required him to show, R.I.B. argued, was the possibility that publication of the petition would endanger him.
Dictionary not Dispositive
Judge Gill noted that, according to the dictionary, “could” is the past tense of the verb “can” and is defined as “may possibly.” But adopting R.I.B.’s argument, Gill reasoned, would impermissibly read part of the statute out of existence.
“While we agree that we cannot ignore the legislature’s use of the word ‘could,’ [R.I.B.’s] interpretation would essentially erase the requirement that a petitioner prove endangerment by a preponderance of the evidence because anything is ‘possible,’” Judge Gill wrote.
R.I.B. cited dictionary definitions to argue that the term “endanger” refers to potential physical, mental, or emotional harms.
But Judge Gill reasoned that dictionary definitions didn’t answer the question; he looked instead to closely related statutes as required under the rubric for statutory interpretation established by the Wisconsin Supreme Court in
State ex rel Kalal v. Circuit Ct. for Dane County, 2004 WI 58, 271 Wis. 2d 633, 681 N.W. 2d 110.
Gill pointed out that section 786.36(2m)(b) authorizes a court to order the release of a confidential name change petition if it determines that “the safety of the petitioner is not jeopardized by the disclosure.”
section 19.35(1)(m), a provision of the state’s public records law, specifies that the right to inspect personally identifiable information does not apply where disclosure of a record would: 1) Endanger a person’s “life or safety;” or 2) “endanger the security” of various state facilities, including the security of population or staff in those facilities.
Because the legislature used the word “safety” in both statutes, Judge Gill concluded that the term “endanger” as used in section 786.37(4) refers to physical danger only.
Decision Not Erroneous
Gill concluded that the circuit court had not abused its discretion by denying R.I.B.’s petition for a confidential name change.
“The court could reasonably conclude that all of [R.I.B.’s] cited physical attacks were by individuals who already knew his gender identity,” Judge Gill wrote.
“In other words … it is not more likely than not that publication of [R.I.B.’s] name change petition could endanger him in the future, given that the individuals who have physically harmed [R.I.B.] in the past already know of his gender identity and thus would not be influenced by the publication of the petition.”