Skip navigation
PYHS - Header

Naming and Shaming - Violations of the Human Rights of Transgender Persons With Felonies in TX 2020

Download original document:
Brief thumbnail
This text is machine-read, and may contain errors. Check the original document to verify accuracy.
Naming and Shaming
Violations of the Human Rights of
Transgender Persons with Felonies in Texas

NOVEMBER 2020

HUMAN RIGHTS CLINIC
THE UNIVERSITY of TEXAS SCHOOL of LAW

Cover: Khara Woods/Unsplash, Jude Beck/Unsplash

This report does not represent the official position of the School of Law or of The University of Texas, and the views presented
here reflect only the opinions of the individual authors and of the Human Rights Clinic.

TABLE OF CONTENTS
I.

EXECUTIVE SUMMARY .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2

II.

INTRODUCTION .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4

III.

METHODOLOGY .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6

IV.

FRAMEWORK

A. Texas Family Code 45.103 contradicts established human rights law by
depriving transgender persons of the right to change their name without
a legitimate public interest to justify the deprivation. . . . . . . . . . . . . . . . . . . . . . . .
V.

DISTRIBUTION OF SURVEYS. .

VI.

EXPLANATION OF HUMAN RIGHTS VIOLATIONS .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9
20

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

21

A. Rights of Persons Deprived of Liberty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

21

B. Right to a Name. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

23

C. Right to Freedom of Expression. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

32

D. Right to Equality and Non-discrimination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

36

E.

Right to Humane Treatment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

43

F.

Right to a Remedy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

49

VII.

CONCLUSION..

VIII.

RECOMMENDATIONS..

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

53
54

2

N A M I N G A N D S H A M I N G Violations of the Human Rights of Transgender Persons with Felonies in Texas

I. Executive Summary
“I don’t give a damn what you want to be called.”

T

his is a

direct quote from a TDCJ prison guard to an incarcerated transgender

woman after she requested to be called by her preferred name. Similar statements
are not uncommon within the TDCJ system and are a direct reflection of the
implementation of the Texas Family Code 45.103 (“TFC 45.103”). This code
prohibits persons with a felony conviction from applying for a legal change

of name unless they have been pardoned, or until two years from the date of the receipt
of discharge or completion of community supervision or juvenile probation. TFC 45.103’s
application to transgender persons violates several international human rights laws contained
within documents such as the United
Nations Universal Declaration on Human
Rights,

the

International

Covenant

on Civil and Political Rights, and the
American Declaration on the Rights and
Duties of the Man.
The

Human

Rights

Clinic

(the

“Clinic”), in partnership with the Austin
Community Law Center (“ACLC”) and
Trans Pride Initiative (“TPI”), researched
TFC 45.103’s human rights violations
The pictured speaker is Nell Gaither, President of the Trans Pride Initiative.

and supported this research with a survey.
The Clinic distributed over 370 surveys

to transgender incarcerated persons and received over 150 responses, 132 of which were valid.
Survey responses confirmed that TFC 45.103 violates protected human rights, including the
right to liberty, right to equality and non-discrimination, right to freedom of expression, right
to a name, right to humane treatment and right to a remedy while incarcerated. The refusal
to recognize these protected human rights contributes to the psychological and emotional
distress that transgender persons experience on a daily basis. Texas is responsible for the

3

protection of human rights of all people, including those of transgender incarcerated persons.
By contributing to and facilitating an environment where the human rights of transgender
persons are repeatedly and callously disregarded, Texas violates international treaties and the
Eighth Amendment of the Constitution of the United States. Texas must amend or repeal
TFC 45.103 or implement other administrative practices to halt the continuous and systemic
human rights violations against transgender incarcerated people.

4

N A M I N G A N D S H A M I N G Violations of the Human Rights of Transgender Persons with Felonies in Texas

II. Introduction
I am being forced to identify myself as someone I am not simply because of the
name on my ID card. I must sign everything using a male name, so that leads people
to believe that that is who they are dealing with, a male, rather than the female I
identify as. This continues to prevent me from being able to get people to see me as
I see myself. How can that NOT cause extreme emotional distress?1

T

exas

F amily C ode 45.103 (“TFC 45.103”) bars people with a felony conviction

from applying for a legal change of name unless they have been pardoned,
or until two years from the date of the receipt of discharge or completion of
community supervision or juvenile probation.2 3 By barring an individual from
obtaining a legal change of name, TFC 45.103 violates the rights of transgender

persons by depriving them of liberty, the right to equality and non-discrimination, the right to
freedom of expression, the right to a name, the right to humane treatment, and the right to a
remedy.
While the human rights violations of TFC 45.103 apply to all individuals, transgender
persons are particularly impacted by the effects of this statute. The Clinic worked in partnership
with ACLC and TPI to gather information on the effects of TFC 45.103 on transgender persons
in Texas. Transgender persons who responded to the survey provided supplementary accounts
attesting to the harmful effects of the human rights violations of TFC 45.103.
To complement research on the effects of TFC 45.103 for transgender individuals, the
Clinic worked with TPI to reach out to currently incarcerated transgender persons. By June
2020, over 120 responses from transgender persons incarcerated in state and federal prisons
in Texas had been received. These surveys reveal that transgender persons incarcerated in

1
2

3

Response to Human Rights Clinic survey; see discussion of survey methods infra Part III.
A parent, managing conservator, or guardian of a minor in Texas may file a change of name petition to the court in whose
jurisdiction they reside so long as the minor is not barred by TFC 45.103. If a minor has a felony conviction, TFC 45.103 applies.
Tex. Fam. Code § 4; Tex. Fam. Code § 45.103.
This means that a person with a felony conviction who is discharged from incarceration in 2020 but then is on parole until
2022 cannot apply for a legal change of name until the two years after the completion of parole, i.e. in 2024. Tex. Fam. Code
§ 45.103.

5

Status of Survey Responder

Please select all of the
following which apply to you:
10

20

30

40

50

60

70

80

90

100

110

120

I have been incarcerated for a
felony conviction from...
(mm/yyyy to mm/yyyy / life)

I have been required to register
as a sex offender from...
(mm/yyyy to mm/yyyy / life)
I have been sentenced to
community supervisions (parole)
for a felony conviction from...
(mm/yyyy to mm/yyyy / life)
I have been sentenced to
juvenile probation for a
felony conviction from...
(mm/yyyy to mm/yyyy / life)

Texas are often subject to discrimination and harassment involving the use of their legal, nonaffirming name. The surveys further show that of those who experience this mistreatment by
members of prison staff and other incarcerated persons, many experience symptoms of mental
and emotional distress as identified through wellness screening tools.
The information provided from the surveys supports the determination that TFC 45.103
violates numerous human rights. This report also lays out recommendations for legislative
and policy changes that would protect the human rights of transgender individuals.
Recommendations include amending TFC 45.103, adding preferred names on prison
identification, training prison officials, and improving methods for responding to complaints
by incarcerated persons.

6

N A M I N G A N D S H A M I N G Violations of the Human Rights of Transgender Persons with Felonies in Texas

III. Methodology

T

o understand the

legal background, the authors reviewed various documents

on the rights of transgender persons in international human rights law. This
included resources compiled by other organizations such as Trans Lifeline, which
compares name change restrictions imposed by various states on people with
criminal histories.4 The Clinic also utilized tools developed for previous social

scientific studies to document experiences of anxiety and depression, as detailed above.5
In February 2020, the Clinic and its partner organizations also filed a Freedom of Information
Act request (FOIA) with the Federal Bureau of Prisons and a Texas Public Information Act
(PIA) request with the Texas Department of Criminal Justice. The purpose of these requests
was to obtain official counts of transgender persons in federal and state custody and those
released on parole during the past ten years, to approximate the number of transgender
persons unable to obtain a legal name change because they were incarcerated. Notably, any
data collected by these agencies are likely to be inaccurate or incomplete, as transgender
persons may choose not to reveal their gender identity to law enforcement or prison officials
to avoid segregated housing, or for other reasons. The Federal Bureau of Prisons (BOP) has not
yet responded to the FOIA request. The Texas Department of Criminal Justice (TDCJ) provided
responsive documents beginning with Fiscal Year 2017. TDCJ also provided policy documents
and directives in response to a follow-up request.
We consulted a number of secondary sources to inform the factfinding efforts used to
collect data for this report, including previously published reports related to the experiences
of incarcerated transgender individuals. Among these was a report by TPI, a Dallas-based
advocacy organization, who produced a report in 2018 documenting failures of Texas prisons
to meet the standards of the Prison Rape Elimination Act.6
The surveys were created to supplement the human rights research that determines how
4
5
6

Trans Lifeline, Name Change Guide for People with Criminal Records (2017), https://www.translifeline.org/docs/Name%20
Change%20Guide%20for%20People%20with%20Criminal%20Records.pdf
See discussion of these studies supra Part III(A)(4).
Trans Pride Initiative, “I Don’t Believe You, So You Might as Well Get Used to It”— The Myth of PREA Zero Tolerance in
Texas Prisons (July 2018), https://www.prearesourcecenter.org/sites/default/files/library/Myth_Of_PREA_Zero_Tolerance.
pdf.

7

TFC 45.103 impacted the human rights of transgender individuals. The Clinic partnered
with Trans Pride Initiative7 to send out 378 mixed-method surveys on March 16, 2020, to
transgender people incarcerated in Texas (the “Incarceration Survey” can be found on our
website: https://law.utexas.edu/wp-content/uploads/sites/11/2020/11/2020-HRC-PaperSur
veyforIncarceratedPersons.pdf). The authors also created a survey about the impact of 45.103
on transgender people who were affected by TFC 45.103 but not currently incarcerated (the
“Non-Incarceration Survey” can be found on our website: https://law.utexas.edu/wp-content/
uploads/sites/11/2020/11/2020-HRC-PaperSurveyforNON-IncarceratedPersons.pdf). The
surveys were primarily modeled after the 2015 U.S. Transgender Survey which evaluated the
perceptions and experiences of racial and ethnic minorities in the British prison population.8
TPI and a University of Texas College of Liberal Arts graduate student, who had experience
with transgender incarcerated individuals, reviewed each survey for sensitivity and context.
The surveys were also reviewed to minimize the risk of retraumatizing any affected individuals.
All individuals who responded to the survey were informed of the nature of the survey on the
impact of TFC 45.103, the voluntary nature of the survey, and the ways in which data would
be collected and potentially used or published. No incentives were offered or provided to
transgender incarcerated persons who completed a survey.
• The supplementary surveys started with an opening letter describing the purpose of the
survey and asked for consent from individuals to use their stories. The general information
section collected characteristic information about the individual, including demographic
information and conviction status, in order to determine if the individual was or still is
affected by TFC 45.103. The TFC 45.103 effect section asked detailed questions about
transgender individuals’ experience living with the effects of TFC 45.103 both in and out
of incarceration.
• The wellness screening section contained a mental health assessment for depression and
anxiety modeled after a 2015 peer-reviewed evaluation of the psychological well-being
of transgender people.9 In the conclusion of the surveys, transgender persons were given
space to add anything else concerning their experience while in the prison system with
regard to their name, gender identity, and inability to seek a legal name change until two
years after full completion of their sentence.
7

Trans Pride Initiative is a Dallas-based transgender advocacy group. https://tpride.org/

8
9

National Center for Transgender Equality, 2015 U.S. Transgender Survey, http://www.ustranssurvey.org/.
Samantha R Pflum, Social Support, Trans Community Connectedness, and Mental Health Symptoms Among Transgender and
Gender Nonconforming Adults, Psycology of Sexual Orientation and Gender Diversity, 2015, Vol. 2, No. 3 281-286.

8

N A M I N G A N D S H A M I N G Violations of the Human Rights of Transgender Persons with Felonies in Texas

The completed Incarceration Surveys, which were composed of the five sections described
above, were manually typed into the online Qualtrics Incarceration Survey with the assistance
of two undergraduate interns at the University of Texas. It was necessary to input the surveys
into Qualtrics for analysis not only to simplify the data organization, but also to accommodate
for the fact that all work was completed remotely due to COVID-19 social distancing restrictions.

9

IV. Framework
A.

T
 exas Family Code 45.103 contradicts established human rights law
by depriving transgender persons of the right to change their name
without a legitimate public interest to justify the deprivation.

T exas F amily C ode 45.103 (“TFC 45.103”) establishes the procedural and substantive
requirements to obtain a court order granting a petition for a change of name in Texas.10 This
code places severe limitations on the ability of a person convicted of a felony to change their
name through a court order. Texas Family Code 45.103 states:
(a) The court shall order a change of name under this subchapter for a person other than a
person with a final felony conviction or a person subject to the registration requirements of
Chapter 62, Code of Criminal Procedure, if the change is in the interest or to the benefit of the
petitioner and in the interest of the public.
(b) A court may order a change of name under this subchapter for a person with a final felony
conviction if:
(1) in addition to the requirements of Subsection (a), the person has:
		(A) received a certificate of discharge by the Texas Department of Criminal Justice
or completed a period of community supervision or juvenile probation ordered by
a court and not less than two years have passed from the date of the receipt of
discharge or completion of community supervision or juvenile probation; or
		

(B) been pardoned; or

	(2) the person is requesting to change the person’s name to the primary name used in the
person’s criminal history record information.
(c) A court may order a change of name under this subchapter for a person subject to the
registration requirements of Chapter 62, Code of Criminal Procedure, if the person:
	(1) meets the requirements of Subsection (a) or is requesting to change the person’s name
to the primary name used in the person’s criminal history record information; and
	(2) provides the court with proof that the person has notified the appropriate local law
enforcement authority of the proposed name change.11
10
11

Tex. Fam. Code § 45.103.
Id.

10

N A M I N G A N D S H A M I N G Violations of the Human Rights of Transgender Persons with Felonies in Texas

G Select Language

G)

"

~\ T eXaS D epartment O f
Criminal Justice

~

'I'

to p,o,•i,lc pu!<lu s,i~·nt promote
pos,tn•c,Jumgcmottmdn1'cl1,z.·1m
,c111tcg,atcoffmdosmto,oc,cty ,m,1
assist t'ichms of d tmt

Home

Return to Search Resuits
Information for Victims
Career Opportunities

Offender Information Details

Offender Information

SID Number:

Find a Facility

TDCJ Number:
Name:

Race:

H

Gender:

M

Age: 30
Maximum Sentence Dale:
Current Facility:

Projected Release Date:
Parole Eligibility Date:
Offender Visitation Eligible:

YES

Information provided is updated once daily during weekdays and multiple times per day on visitation

days. Because this information is subject to change, family members and friends are encouraged
to call the unit prior to traveling for a visit.

This image is a
sample of the inmate
information that
is provided on the
Texas Department
of Criminal Justice
website.

TFC 45.103 is severely restrictive. A person convicted of a felony is ineligible for a grant
of a name change until two years after discharge. Thus, this law acts as a lifetime ban on
ever obtaining a name change for persons serving life sentences or facing the death penalty.
Those serving life sentences12 represent 7.1% of those in Texas Department of Criminal Justice
(“TDCJ”) prisons.13
This law was amended in 2019 by HB 2623 to include TFC 45.103(b)(2) stating that the
court can order a name change if “the person is requesting to change the person’s name to the
primary name used in the person’s criminal history record information.”14 The Bill Analysis for HB
2623 identified that the purpose of the amendment was to alleviate the penalizing effects of the
law to certain persons who have used names other than their birth names for the vast majority
of their lives. While this does show that the House and Senate are aware that this creates adverse
effects on certain persons, many transgender incarcerated persons do not have their preferred
names listed on their criminal history record information. Therefore, this amendment does not
12

Including sentences of life, capital life, life without parole, and death, there are 9,531 persons in this situation. Not including
those with sentences of 60 years or more, who represent 5,433 of those in TDCJ prisons.

13

Texas Department of Criminal Justice, FY 2018 Statistical Report 8 (2019), https://www.tdcj.texas.gov/documents/
Statistical_Report_FY2018.pdf. This figure accounts for those in TDCJ prisons only (N=134,152) and does not take into
account persons in state jails or SAFP, whose sentences are 2 years or less.
Tex. Fam. Code § 45.103(b)(2).

14

11

alleviate the severe restrictions placed on transgender incarcerated persons.
In United States v. Varner (a.k.a. Kathrine Nicole Jett), the Court of Appeals for the Fifth
Circuit recently upheld the district court’s decision not to change a transgender incarcerated
woman’s name on her judgment of committal to her preferred name, nor to refer to her using
her affirming pronouns.15 The Fifth Circuit reasoned that the woman’s “request to change the
name on [her] judgment was an unauthorized motion that the district court lacked jurisdiction
to entertain,” and therefore, she was not entitled to have her judgment corrected to reflect
her preferred name.16 Both the lower court and the Fifth Circuit neglected to consider the
constitutional human rights of those affected by this statute.
A court is granted unfettered and undirected discretion in determining whether a name
change is “in the interest or to the benefit of the petitioner or the public.” There are no guiding
principles set out to make this determination. This requirement is vague and unclear, which may
lead to arbitrary application. Courts in Texas have held that the “test for abuse of discretion is . . .
whether the court acted without reference to any guiding rules and principles.”17 Additionally,
in Texas, the burden is placed on the person seeking a legal name change to show that their
name change is in the interest of the public.
Finally, under the discretionary provision, there is no guarantee that a court will grant
a petition for a change of name even if all of the requirements are satisfied. Subsection (b)
merely provides that a court “may” grant a petition for a change of name for a person convicted
of a felony who satisfies all the exception requirements. Compare this language to subsection
(a), which mandates that a court “shall” order a change of name for persons not convicted of a
felony. For persons not convicted of a felony, subsection (a) at least guarantees a right to obtain
an order for a name-change, but even that guarantee is subject to problematic requirements.
However, for a person convicted of a felony this guarantee is completely stripped away. The
court’s complete discretion to deny a change of name petition by a person convicted of a
felony, even when they have satisfied all the restrictive exception requirements, effectively grants
no right to a change of name, as is required under international human rights law.
The importance of transgender persons having identity documents that comport with
their gender has been recognized by several human rights bodies. The United Nations High
Commissioner for Human Rights has recommended that States “issue legal identity documents,
upon request, that reflect the preferred gender of the person concerned,” and “facilitate legal
15
16
17

948 F.3d 250, 258 (5th Cir. 2020).
Id. at 254.
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

12

N A M I N G A N D S H A M I N G Violations of the Human Rights of Transgender Persons with Felonies in Texas

The Inter-American Court on Human Rights met to release an Advisory Opinion regarding name change law compatibility with the
American Convention on Human Rights.

recognition of the preferred gender of transgender persons and establish arrangements to
permit relevant identity documents to be reissued reflecting the preferred gender and name,
without infringing other human rights.” 18
Additionally, the Inter-American Court of Human Rights (“IACtHR”) establishes the web of
human rights which protect the right for a transgender person to legally change their name.19
The IACtHR previously held that “the right of each person to define his or her sexual and
gender identity autonomously and that the personal information in records and on identity
documents should correspond to and coincide with their self-defined identity is protected by the
American Convention on Human Rights under the provisions that ensure the free development

18
19

United Nations, Report of the United Nations High Commissioner for Human Rights, Discriminatory laws and practices and
acts of violence against persons based on their sexual orientation and gender identity, 17 November 2011, A/HRC/19/41, ¶ 84.
The Republic of Costa Rica sought an advisory opinion (“Advisory Opinion”) from the Inter-American Court of Human
Rights (IACtHR) to check if its name-change law was compatible with the provisions of the American Convention on
Human Rights (“ACHR”). The United States is a part of the Organization of Americas States (“OAS”). It is not a party to the
American Convention on Human Rights (“ACHR”) but is a party to the American Declaration on the Rights and Duties of Man
(“American Declaration”). The United States is subject to the Inter-American Commission on Human Rights (“Inter-American
Commission”). However, despite not being a party to the IACtHR, the judgments by the IACtHR informs the interpretation of
the human rights obligations of the United States in proceedings against it before the Inter-American Commission. Report
No. 80/11, Case 12.626, Jessica Lenahan (Gonzales) et al. v. United States, July 21, 2011, ¶¶ 118-19. Thus, the reasoning of the
Advisory Opinion of the IACtHR applies to the United States.

13

of the personality (Articles 7 and 11(2)), the right to privacy (Article 11(2)), the recognition
of juridical personality (Article 3), and the right to a name (Article 18).”
The IACtHR has also examined what types of restrictions on name changes are permissible.
The IACtHR determined that requiring the requestor to provide their police records when
applying for a name-change is an impermissible restriction for two reasons. First, requiring
name-change applicants to produce police records “unreasonably” requires the applicant to do
the job of the State. Second, and far more significantly, the interest of maintaining criminal
records does not outweigh the human rights violation that occurs when transgender individuals
are denied the ability to have their identity data conform to their self-perceived gender identity.
The concern that one might use a name-change to “evade justice” does not outweigh the
concern that preventing a transgender person from obtaining a name change “completely
affect[s]” several of their “basic human rights” to the extent that they are prevented from
fully “participat[ing] in all aspects of life.” Following this analysis, a state would need to cite
a further interest in order for a restriction on the name change procedure to comport with
international human rights law.
State laws in the United States that restrict legal name changes for people with felony
convictions are remarkably unique, and a majority of the conditions or restrictions that do exist
are based on concerns that a legal name-change will facilitate evasion of justice. In 2017, thirteen
states20 had no restrictions for people with felony convictions. Twenty-two states imposed
conditions on individuals petitioning for a change of name based on the person’s criminal
record. These conditions ranged from conducting an additional background check to proving
that the name change is not fraudulent.21 Besides Texas, fifteen states have restrictions that result
in situations where a person either must wait a determined amount of time before they can
apply for a change of name, or are entirely precluded from changing their name based on their
incarceration or probation status, sex offender registration status, and felony record status.22
States that have additional burdens or complete restrictions on a legal change of name
for a person with a felony conviction mistakenly believe that in the interest of “public safety,”
20

21

22

Alaska, Maine, Massachusetts, Montana, New Mexico, Rhode Island, South Dakota, Georgia, Kansas, Kentucky, Missouri,
Nebraska, and Wyoming have no restrictions for persons with felonies to change their name. Trans Lifeline Microgrants, Name
Change Guide for People with Criminal Records, TransLifeline, (Sept. 2017).
Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, DC, Idaho, Maryland, Michigan, Minnesota, Nevada,
New Hampshire, New Jersey, New York, North Dakota, Oregon, South Carolina, Vermont, Virginia, and Washington have
conditions for petitioning to change your legal name if you have a criminal record to a felony specifically. Id.
Florida, Hawaii, Illinois, Indiana, Iowa, Louisiana, Mississippi, North Carolina, Ohio, Oklahoma, Pennsylvania, Tennessee, Utah,
West Virginia, and Wisconsin all have laws that prevent a person from petitioning for a legal change of name dependent on the
person’s criminal background and incarceration, parole, or sex offender registration status. Id.

14

N A M I N G A N D S H A M I N G Violations of the Human Rights of Transgender Persons with Felonies in Texas

these laws are righteous and fair. However, the Bureau of Prisons (“BOP”) permits a legal name
change under the Prison Rape Elimination Act (“PREA”)—a law meant to protect vulnerable
populations like transgender persons. The BOP uses an Advisory Opinion to counter the
mistaken belief that states can place restrictions on legal name changes in the interest of public
safety. on According to the Advisory Opinion, which is based on bodies of international human
rights law to which the United States belongs, state laws that deny legal name changes for a
person with felony convictions are against international human rights law.23
Applying the analysis from the Advisory Opinion to the restrictions of TFC 45.103 concludes
that the name-change restrictions the statute imposes on transgender individuals convicted
of a felony are disproportional and impermissible violations of their basic human rights. The
purported aim of TFC 45.103—“to protect the ability to identify persons sought on warrant
and detainer, and to preserve the criminal history of felons”24—is nearly identical to the goal of
the statute in Costa Rica challenged in the Advisory Opinion. The state interest in that statute
was to obtain police records to prevent evasions of justice, protect third parties, and promote
public order. Due to the similarity of the legislative purposes of TFC 45.103 and the statute
challenged in the Advisory Opinion, it is appropriate to assess the proportionality of the means
used in pursuit of the aims of TFC 103.45 to the same standard that was applied in the Advisory
Opinion. TFC 45.103 places arbitrary concerns of evasion of justice over the human rights of
an individual, as illustrated in the case of Katelyn. Katelyn is completing a life sentence and
experiences psychological and mental anguish because her legal name is used to deny her
gender identity. She feels anxious and depressed when others use her legal name and has
unsuccessfully requested for officers and staff to use her preferred name. Even though Katelyn
cannot evade justice because she will remain within the custody of the State, she cannot change
her name under TFC 45.103, and in the process, she continues to suffer human rights violations.
New York is one of the twenty-two states that permits people with felonies to petition for a
legal name change with some conditions.25 Although states like Texas, and Massachusetts26 cite
security reasons to justify the continued use of name change restrictions, New York case law
23
24
25

26

Id. at 9, 12.
Matthews v. Morales, 23 F.3d 118, 119 (5th Cir. 1994)
Under New York Civil Rights Law § 63, depending on the severity of the felony, a person who is currently incarcerated or on
parole must first notify the district attorney of every county in which they received a felony conviction that the person is
petitioning for a legal change of name. If the petition is granted, the petitioner must then publish a public notification of their
change of name in the county in which they received a felony conviction.
In a Massachusetts case regarding a change of name petition by a transgender incarcerated person, a Massachusetts court
held that granting a name change will likely cause a risk of confusion in the criminal justice system. This case is currently on
appeal. Riley, 93 Mass. App. Ct. 1103, 103 N.E.3d 767 (2018).

15

held that security reasons cannot be the sole reason for name-change restrictions. For example,
in the case of In re Powell, a Superior Court of New York denied a petition to a legal change
of name by a transgender incarcerated person with a felony. The lower court had denied the
petitioner’s application to change her legal name on the grounds that “the risk of confusion and
deception was high, and there was no evidence demonstrating” that the petitioner had completed
a gender correction surgery. A New York appellate court reversed, holding that “[c]onfusion is
attendant to any change of name and does not, in itself, justify denial.”27 This New York Court
would require a further state interest than to protect against confusion and deception to allow
the state to limit access to a legal name change for a transgender incarcerated person.
In order to track incarcerated people who are in the custody of the State of Texas, each
individual must have a TDCJ number. The name on their TDCJ ID does not need to be restricted
to their legal name in order to protect the public. Even without a legal change of name, the BOP
sets forth guidance stating that “additional names or aliases” can be added to the secure database
of incarcerated individuals. While an individual in these circumstances could potentially be
granted parole, they would still have to report their location to their parole officer, which could
be accomplished with their TDCJ number. The experience of TPI shows that incarcerated persons
and those on parole can easily be identified and located with their non-legal name and their TDCJ
number. TPI has written more than 140 advocacy letters on behalf of around 50 incarcerated
persons using just the TDCJ number and a name different from the name in the systems. These
have gone to many different TDCJ offices. Not one time has TPI received a response indicating
that the person they were advocating for was unable to be identified by this information. This
shows that TFC 45.103 does little to nothing in preventing confusion or deception.
Additionally, Texas has the responsibility to maintain the recordkeeping that would permit
the public to find a person’s legal change of name or the criminal record of a person who
changed their legal name. Amending the law to ensure that the public is able to access the
individual’s previous name would better inform the public of that individual’s criminal history.
If, for example, an incarcerated person was granted parole, she would naturally introduce
herself to her neighbors and community members using her affirming name, instead of her
legal name. Under TFC 45.103, a search for this affirming name would come up empty—with
the parolee’s record being under her non-affirming, legal name—which TFC 103.45 prevents
her from changing to match the name she uses in public. By allowing for this individual to
change her legal name, this requires correctional officers to refer to her by her preferred name,
27

In re Powell, 95 A.D.3d 1631, 1632, 945 N.Y.S.2d 789, 790 (2012).

16

N A M I N G A N D S H A M I N G Violations of the Human Rights of Transgender Persons with Felonies in Texas

which helps alleviate psychological and mental distress. In addition, the above-mentioned
process would effectively and efficiently serve the original intent of TFC 45.103, which is to
protect the ability of the community to locate criminal records.
Although the state claims that TFC 45.103 is in the interest of the public because it prevents
confusion and deception—neither of these interests are legitimate, let alone strong enough to
permit the state to violate the human rights of incarcerated transgender persons. The goals of
TFC 45.103 can be achieved administratively. In fact, preventing incarcerated persons from
changing their name to match the one they use in public creates more confusion than it prevents.
With no state interest above and beyond maintaining records and protecting against deception
TFC 45.103 is unconstitutional and in violation of international human rights standards.
There is a significant population of transgender people who are affected by TFC 45.103
because they are incarcerated in Texas. In 2014, the TDCJ reported that there were approximately
30 transgender individuals incarcerated in their facilities. However, this number jumped
astronomically by 2017, when the TDCJ reported that 663 incarcerated persons in its custody
identified as transgender. In 2018, this number grew to 889. By 2019, the TDCJ reported that
there were 1,093 transgender persons in its custody.28 This increase is also reflected in records
of those paroled: according to TDCJ records, of those released from TDCJ custody and placed
on parole during each of these fiscal years, in 2017, 22 parolees identified as transgender;
in 2018, 37; and in 2019, 59.29 These numbers do not include persons who were released
on parole before the reporting period.30 In addition, many transgender incarcerated persons
may not identify themselves in the TDCJ system as transgender because they are afraid of
discrimination from prison officials or other incarcerated persons. Therefore, the number of
transgender persons impacted by the inability to receive a legal name change under Texas law
is assuredly higher than those currently reported as incarcerated or paroled by TDCJ records.31
TDCJ reports transgender incarcerated persons as “male” or “female” according to the unit
or facility in which they are housed, sometimes even if they have legally changed their gender
marker. Housing and other program assignment determinations are set by the Department
of Justice (“DOJ”) and the Bureau of Prisons under the Prison Rape Elimination Act in order
to reduce the risk of sexual violence against transgender incarcerated persons. Texas began
28
29
30
31

Response to Texas Public Information Act request. Note: It is unclear whether this increase reflects persons who had already
been incarcerated during previous reporting periods newly identifying themselves as transgender to TDCJ officials.
Id.
See discussion infra Part IV(A).
There is no data publicly available on the number of transgender persons in federal custody in Texas. The Clinic has requested
this information and has not yet received a response from the Federal Bureau of Prisons.

17

efforts to comply with the PREA in 2015 and
Governor Abbott suggests that he “will work to
comply” with the PREA.32
In 2016, the Department of Justice prohibited
assigning a transgender individual to housing and
programming assignments based on biological
sex.33 In 2018, the BOP reversed this policy. While,
as required under PREA, all determinations will
be on a case-by-case basis, biological sex is now
the basis for the initial determination of housing,
and other programs. The Human Rights Watch
condemned the change in policy, stating that
there is no “defensible basis” for the decision and
that it is part of a “pattern of actions taken by the
Trump administration,” to weaken or eliminate
protections for transgender individuals.34
Protecting the rights of transgender incarcerated
persons is especially critical because transgender
persons are convicted at comparatively higher
rates than their cisgender35 peers. In the 2015

This photo of TDCJ’s Crain Unit in Gatesville, Texas is used
with permission of TDCJ.

National Trans Survey found that two percent of transgender survey respondents (n=27,715)
were incarcerated (held in jail, prison, or juvenile detention) in the year prior to the survey,36
slightly over twice the rate of incarceration among the general population in 2015 (0.86%).37
Other research suggests that around 21% of transgender women are incarcerated in their
lifetime compared to less than 3% of the US general population.38 In addition, many subsets
of the transgender population are far more likely than the general population to have been
32

Patrick Svitek, Abbott: Texas Will Work to Comply with Anti-Prison Rape Law, The Texas Tribune, (May 22, 2015, 5 PM) https://
www.texastribune.org/2015/05/22/abbott-says-texas-will-follow-prison-rape-law/.

33

Human Rights Watch, US Bureau of Prisons Policy Change Endangers Transgender Prisoners, Human Rights Watch Dispatches
(May 14, 2018), https://www.hrw.org/news/2018/05/14/us-bureau-prisons-policy-change-endangers-transgender-prisoners#.
Id.
Non-transgender; people whose gender identity corresponds to the sex they were assigned at birth.

34
35
36
37
38

National Center for Transgender Equality, 2015 U.S. Transgender Survey (last visited May 3, 2020), http://www.
ustranssurvey.org.
Id.
Jaclyn M. White Hughto et al., A multisite, longitudinal study of risk factors for incarceration and impact on mental health and
substance among young transgender women in the USA, Journal of Public Health, v. 41 no. 1, 2019, at 1.

18

N A M I N G A N D S H A M I N G Violations of the Human Rights of Transgender Persons with Felonies in Texas

Where were you housed while in incarceration?
Please check all that apply:
I was housed with people whose
gender identity matched my own.
I was housed with people whose gender
identity did not match my own.
I was housed separately with other people
whose gender identity did not match
their assigned gender/sex at birth.
I was housed in solitary confinement or other
separated housing for my own protection.

Other

I was housed in safe-keeping.

I was housed in mixed general population.

10

20

30

40

50

60

incarcerated in the past year—including undocumented transgender persons, transgender
Black women, transgender American Indian women, and transgender homeless persons.39
Transgender people are more likely to be incarcerated, but are also uniquely vulnerable due
to their intersectional status as both a transgender person and an incarcerated person. A 2010
study on transgender people in California men’s prisons found that “transgender inmates fare far
worse on standard demographic and health measures than their non-transgender counterparts
in the US population, the California population, the US prison population, and the California
prison population.”40 In terms of physical victimization, “. . . as compared to inmates in US and
California men’s prisons-by all reports, populations that have also suffered high rates of physical
abuse – transgender people experienced more than five times as many incidents of non-sexual
physical victimization.”41
This finding from the California study matched the results found five years later in the
2015 U.S. Transgender Survey. A secondary data report determined that one in six transgender
people were physically assaulted by facility staff while incarcerated, while one in six were
physically assaulted by another incarcerated person.42 The 2015 US Transgender Survey also
39

James et al, The Report of the 2015 U.S. Transgender Survey, National Center for Transgender Equality at 190 (2016).
https://transequality.org/sites/default/files/docs/usts/USTS-Full-Report-Dec17.pdf
40 Lori Sexton, Valerie Jenness & Jennifer Macy Sumner, Where the Margins Meet: A Demographic Assessment of Transgender
Inmates in Men’s Prisons, 27 Just. Q. 835, 835 (2010).
41
42

Id. at 857-58.
James et al, supra at 191, 192.

19

found that 11% of transgender incarcerated persons were
sexually assaulted by facility staff in the past year while
incarcerated, while 17% of transgender incarcerated
persons reported that they were sexually assaulted by
another incarcerated person.43
The findings from these significant transgender surveys
illustrate that transgender persons in incarceration constitute
a particularly vulnerable population that experiences higher
levels of abuse than the general incarcerated population. For
a person who is transgender, a legal name change not only
permits a person to more easily “pass” as the gender with
which they identify; it also crucial to feeling comfortable in
one’s identity.44 Though there is currently limited research
available about the effect of a legal name change for a
transgender person, one 2017 study on low-income trans
women of color found that legal name change “may be an
important structural intervention . . . providing increased

Pictured on the left is Tim, a volunteer for Trans
Pride Initiative; in the middle is Mindy Williams,
who was released in 2019 but is unable to
change her name due to her conviction; and on
the right is Nell Gaither the President of Trans
Pride Initiative.

socioeconomic stability and improved access to primary and transition-related health care.”45
TFC 45.103 particularly impacts people who are transgender due to transgender people
having much higher rates of incarceration than the general population. Texas must recognize
the human rights of these persons to help them fully participate in society as their self-defined
identity upon release and prevent them from experiencing further discrimination and harm
while incarcerated. In order to fulfil this legal responsibility, Texas must amend, repeal, or
otherwise mitigate the harm caused by TFC 45.103.

43
44
45

Id.
Id.
Brandon J. Hill et al., Exploring Transgender Legal Name Change as a Potential Structural Intervention for Mitigating Social
Determinants of Health Among Transgender Women of Color, 15 Sexuality Res. & Soc. Pol’y: J. NSRC 1, 1 (2017).

20

N A M I N G A N D S H A M I N G Violations of the Human Rights of Transgender Persons with Felonies in Texas

V. Distribution of Surveys

T

he

C linic , ACLC and TPI started investigating the impact of TFC 45.103 in

January 2020. At the same time that the authors finished their preparatory work
and started distributing its supplementary surveys for additional information,
Texas began shutting down in response to the COVID-19 pandemic.46 We believe
that COVID-19 may have significantly and negatively impacted our ability to

reach potential transgender incarcerated persons, especially for the online version of the
Non-Incarceration Survey. Although we developed survey questions related to experiences
while on parole or while seeking housing or
employment, only six responses for these types

15. Did s1afT and officers ,•rbne )
reques1?

OU

arT/v.ne innrcrn.1fil use )·our preferred n:ame upon

D Yes. staff and ol)kcrs 8Cr.er3lly us,ed mJ prc,~rr~ rumc.
□

Some staff and orlicers us~ m~ preterred name.

~ w or no staff memlxrs or or)kcrs u~d my prefen ed name.

D01her:

of surveys had been collected as of April 2020.
However, with 132 valid survey responses
(a response rate of around 34%), there was
sufficient information to supplement the

16. Did 01her incarcenlfil people 111he faci li~ \\ htre ~·ou a rt o r were incarctraltd use your
prdernd name upon reques1?

0 Yes. other incarcttated people generally ~ m~ prefentd name
0 Some used my prcfrrttJ n11me

. or none used my preieneJ name

~

human rights investigation into the effects of
TFC 45.103.

0 01h(r:

17. Did 1he stalTor offiurs at 1be radii~ where~ou arr incarcersied inform you of~·our righ1s
bttause of~·our gender identity. such as your rigbls because J·ou arr a tnmsgendtr person?
□

Yes

0 :'\o

not

surt

D Other:

18. Art there any 01ber inurcen1td J)Nlple. members or the staff. or officen that ~ou
espttiaUy get/got alon& ~-ilb'..'
□

Yes

0'\o

=Sot sure

46

This image is an excerpt of the survey that we sent
to 300+ transgender incarcerated individuals. A full
sample of the Incarceration Survey (https://law.utexas.
edu/wp-content/uploads/sites/11/2020/11/2020HRC-PaperSurveyforIncarceratedPersons.pdf) and
the Non-Incarceration Survey (https://law.utexas.edu/
wp-content/uploads/sites/11/2020/11/2020-HRCPaperSurveyforNON-IncarceratedPersons.pdf) can be
found on our website.

Office of the Texas Governor Greg Abbott, Governor Abbott Extends Disaster Declaration For COVID-19 (Mar. 13, 2020), https://
gov.texas.gov/news/post/governor-abbott-extends-disaster-declaration-for-covid-19.

21

VI. Explanation of Human Rights
Violations
A. RIGHTS OF PERSONS DEPRIVED OF LIBERTY

T

hough

S tates

may

deprive persons convicted of crimes of their liberty through

incarceration, it is well established that states have a duty to protect the other
human rights of incarcerated persons. The rights of persons deprived of liberty
are specifically outlined through instruments such as the Nelson Mandela Rules
(“Mandela Rules”)47 and the Principles and Best Practices on the Protection of

Persons Deprived of Liberty in the Americas.48 States must protect such persons from “any
hardship or constraint other than that resulting from the deprivation of liberty.”49 The IACHR
notes that “Persons deprived of liberty not only may not be subjected to torture and cruel,
inhuman and degrading treatment, but neither may they be subjected to hardship or restrictions,
except for those that are unavoidably incidental to the deprivation of liberty.”50
The IACtHR explains this principle further, noting that the State’s treatment of a person
deprived of liberty must “not subject the detainee to anguish or difficulties that exceed the
unavoidable level of suffering intrinsic to the detention, and that, given the practical demands
of imprisonment, his health and welfare are adequately insured.”51 TFC 45.103 directly violates
the dignity of transgender persons convicted of a felony as it prohibits State recognition of
their actual identity.
Prohibiting a person from changing their name is not “unavoidably incidental to the
deprivation of liberty.” The IACtHR held in Lopez Alvarez v. Honduras that forcing an inmate
to speak in a particular language was not incidental to their deprivation of liberty, even in

47
48
49
50
51

G.A. Res. 70/175, Dec. 17, 2015.
Organization of American States: Inter-American Commission on Human Rights, Principles and Best Practices on the
Protection of Persons Deprived of Liberty in the Americas, Res. 1/08 (OEA/Ser/L/V/II.131 doc. 26), Mar. 13, 2008.
Human Rights Committee, General Comment 21, HRI/GEN/1/Rev.9 (Vol I) 202, ¶ 3.
Report on the Human Rights of Persons Deprived of Liberty in the Americas, IACHR (2011), ¶ 336.
I/A Court H.R., Case of “Juvenile Reeducation Institute” V. Paraguay. Judgment of September 2, 2004.

22

N A M I N G A N D S H A M I N G Violations of the Human Rights of Transgender Persons with Felonies in Texas

The Inter-American Court on Human Rights met to release an Advisory Opinion regarding name change law compatibility with
the American Convention on Human Rights.

light of the “security” reasons that rule was supposedly serving.52 Forcing an inmate to go
by a particular name is likewise not necessitated by the deprivation of liberty because there
is no legitimate security concern or other interest that makes the denial of a name change
unavoidably incidental to the terms of their incarceration. The IACHR states that there
are “special obligations of the State to protect persons deprived of liberty who are at risk
of experiencing violations of their human rights, namely: women; children; older persons;
persons with disabilities; and lesbians, gays, bisexuals, and trans [persons].”53 Thus, a law
like TFC 45.103, which deprives transgender persons of human rights protections while they
are incarcerated, is subject to heightened scrutiny in determining if it offends the special
protections required by the IACtHR.
TFC 45.103 prevents individuals from using a name that is congruent with their identity,
which disparately impacts transgender incarcerated persons. The harms caused by TFC 45.103
disproportionately affects transgender persons because the name on their identity documents
does not comport with their actual and presented gender, which leads to discrimination,
hardship and violence. By forcing transgender persons convicted of a felony to present
incongruent identification documents, TFC 45.103 has the effect of disproportionately
interfering with transgender persons’ access to basic services and rights to healthcare, housing,
employment, and civic participation, among others. In this way, the effects of TFC 45.103
constitute indirect discrimination against transgender persons convicted of a felony. Every
incarcerated person who is transgender is prohibited under TFC 45.103 from petitioning for
or being granted a legal name change order in Texas. No person in our information gathering
52
53

Inter-American Court of Human Rights, Case of López-Álvarez v. Honduras (February 1, 2006).
Report on the Human Rights of Persons Deprived of Liberty in the Americas, IACHR (2011), ¶ 628.

23

survey had successfully petitioned for a legal name change. The following sections detail the
violations of the human rights of transgender incarcerated persons, rights they retain during
and following incarceration. None of these violations of transgender incarcerated persons’
rights are incidental to their deprivation of liberty, and so TFC 45.103 is in clear violation itself
of the rights of persons deprived of liberty.

B. RIGHT TO A NAME
The right to a name is well established both explicitly and implicitly in international human
rights law. At the United Nations, it is explicitly recognized by the ICCPR,54 the Convention on
the Rights of the Child (“CRC”),55 the International Convention on the Protection of the Rights
of All Migrant Workers and Members of Their Families (“Migrant Workers Convention”),56
and the Convention on the Rights of Persons with Disabilities (“CRPD”).57 Further, it is also
recognized in regional human rights treaties like the American Convention on Human Rights
(“ACHR”)58 and the African Charter on the Rights and Welfare of the Child.59
The right to a name is also connected to other human rights, including dignity, autonomy,
and privacy. A person’s name plays a crucial role in their identity. The IACtHR has held that “a
name, as an attribute of personality, represents an expression of individuality and its ends are
to affirm the identity of a person before society and in procedures before the State. Its purpose
is to ensure that every individual has a unique and singular sign that distinguishes him or her
from everyone else, by which he or she can be identified and recognized.”60
Since the name of a person is so integrally connected to their identity, the right to a name
includes the right to change one’s name when their gender identity is changed from the one
assigned to them at birth. The contours of the right to a name are still evolving, and the courts
are interpreting this right in different contexts. Most recently, the IACtHR issued an advisory
opinion requested by the Republic of Costa Rica. This Advisory Opinion held that “everyone
should be able to choose their name freely and change their name as they wish.”61 In so far
54

International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171, Can TS 1976 No 47 (entered into force
23 March 1976)
55 1577 U.N.T.S. 3; 28 I.L.M. 1456 (1989)
56 2220 U.N.T.S. 93; 30 I.L.M. 1517 (1991)
57 A/RES/61/106, Annex I
58 S. Treaty Doc. No. 95-21;1144 U.N.T.S.123; O.A.S.T.S. No. 36; 9 I.L.M. 99 (1970).
59 1520 U.N.T.S. 217; 21 I.L.M. 58 (1982).
60 IACHR Advisory Opinion OC-24/17, ¶ 106.
61 Id. at ¶ 111.

24

N A M I N G A N D S H A M I N G Violations of the Human Rights of Transgender Persons with Felonies in Texas

Did staff and officers where you are/were incarcerated use your
preferred name upon request?
Yes, staff and officers
generally used my
preferred name.
Some staff and
officers used my
preferred name.

Few or no staff used
my preferred name.

Other

10

20

30

40

50

60

as TFC 45.103 prohibits transgender persons from changing their name to comport with their
gender identity, it violates the right to a name.
The same IACtHR Advisory Opinion stated that the right of each person to define his or her
sexual and gender identity should be protected and that the personal information in records
and on identity documents should correspond to and coincide with their self-defined identity.
The Court found these protections defined in the ACHR under the provisions that ensure the
free development of the personality (Articles 7 and 11(2)), the right to privacy (Article 11(2)),
the recognition of juridical personality (Article 3), and the right to a name (Article 18).62
Article 18 of the ACHR provides that “every person has the right to a given name and to
the surnames of his parents or that of one of them. The law shall regulate the manner in which
this right shall be ensured for all, by the use of assumed names if necessary.”63 It is pertinent to
note that Article 27 of the Convention makes the right to a name an inalienable right, implying
that it cannot be suspended under any circumstances. Article 18 provides that the law shall
regulate the manner in which this right shall be ensured but does not explicitly provide the
limits of this regulation.
A series of decisions by the IACtHR has upheld the right to a name and linked it with the
right to identity, consistently holding that the right to a name “constitutes a basic and essential
62
63

Id. at ¶ 115.
S. Treaty Doc. No. 95-21;1144 U.N.T.S.123; O.A.S.T.S. No. 36; 9 I.L.M. 99 (1970).

25

element of the identity of every person, without which an individual cannot be recognized
by society or registered before the State.” This recognizes the importance of a person’s name
for both their personality identity, but also for their identification by the State. In a dissenting
opinion, the IACtHR has articulated the changing nature of a person’s identity. In the case of
the Serrano-Cruz Sisters v. El Salvador, the IACtHR noted that “personal identity starts from the
moment of conception and its construction continues throughout the life of the individual.”64
The recognition that one’s identity changes over time may imply that one’s name may change
along with it.
The IACtHR defines gender identity as “each person’s deeply felt internal and individual
experience of gender, which may or may not correspond with the sex assigned at birth,
including the personal sense of the body (which may involve, if freely chosen, modification of
bodily appearance or function through medical, surgical or other means) and other expressions
of gender, including dress, speech, and mannerisms.”65 Thus, transgender person’s gender
identity is different from the one assigned at their birth. When this gender identity does not
reflect the name assigned to them, transgender persons face discrimination, gender dysphoria,
and other issues discussed in this report.
The IACtHR has held that the right to a change of name to reflect self-perceived gender
identity is protected under Article 18 of the ACHR. The Court has held that “States must
respect and ensure to everyone the possibility of registering and/or changing, rectifying or
amending their name and the other essential components of their identity such as the image,
or the reference to sex or gender without interference by the public authorities or by third
parties.”66 TFC 45.103 is an interference by a public authority that prohibits the change in
a person’s identity to be reflected in their name. Because of this law, a transgender person
convicted of a felony cannot change their name to reflect the change in their gender identity
assigned at birth. As mentioned earlier, permissible restrictions on the right to a name are not
explicitly mentioned in Article 18 of the ACHR. The right to a name is connected to the right to
privacy, equality, and non-discrimination, as well as the right to identity and autonomy, which
protects transgender persons’ rights not just to have a name but to change it to comport with
their gender identity. The standards of permissible limitations to these rights are specifically
enumerated in the ACHR. Permissible restrictions must be made “by law as may be necessary
64
65
66

Serrano-Cruz Sisters v. El Salvador, Monitoring Compliance with Judgment, Order of the Court, 2005 Rep. Inter-Am. Ct. H.R.
“Resolves“ ¶ 132 (March 01, 2005).
GENDER IDENTITY, AND EQUALITY AND NON-DISCRIMINATION OF SAME-SEX COUPLES, Advisory Opinion OC-24/17, InterAm. Ct. H.R. ¶ 16 (Nov. 24, 2017).
Id. at ¶ 116.

26

N A M I N G A N D S H A M I N G Violations of the Human Rights of Transgender Persons with Felonies in Texas

in a democratic society, in the interest of national security, public safety, or public order, or to
protect public health or morals or the rights and freedoms of others.”67 Because the restrictions
of TFC 45.103 constitute impermissible limitations of the right to privacy, equality, and nondiscrimination, the same conclusion is likely to be made with respect to the right to a name.
Additionally, Rule 7 of the United Nations’ Mandela Rules requires that the State recognize
the actual identity of the person deprived of liberty: “The following information shall be
entered in the prisoner file management system upon admission of every prisoner: a) Precise
information enabling determination of his or her unique identity, respecting his or her selfperceived gender.”68 TFC 45.103 sanctions non-compliance with Rule 7 of the Mandela Rules by
prohibiting affected transgender persons from changing their names. Similarly, the Bureau of
Prisons states that, under PREA:
“An official committed name change while in BOP custody must be done consistent with [policy].
The name entered on the inmate’s Judgement [sic] and Commitment Order will remain the
official committed name for all Bureau records … However, any additional names or aliases can
be entered into [the prison file management system] as appropriate.”69

However, transgender incarcerated persons overwhelmingly indicated that staff and
officers do not use their preferred or affirming name upon request. Only eight transgender
incarcerated persons included officers or staff as people who respected their right to a name.
Diana wrote that “I’ve been called every unkind name known to man by officers.” Dani wrote
that “...no officers or staff are allowed to use a first name.” Others, like Charlotte and Cinda,
agreed. Charlotte wrote that that staff and officers “usually use our last name if our names at
all” while Cinda stated that “certain officers are understanding while others just move on to
using only my last name.” Jemma wrote that “There were many of officers who treated me as
I were and respected me as a person. Some would ask what do I prefer to be called...” Audrey
noted as well that “There have been a couple of COs who, after being corrected, have respect
for me. However, rather than use [my] preferred/true name, [they] avoid all situational use of
names or pronouns, which is also offensive.”
At least eighteen transgender incarcerated persons reported that staff told them their
67

S. Treaty Doc. No. 95-21;1144 U.N.T.S.123; O.A.S.T.S. No. 36; 9 I.L.M. 99 (1970).

68

UN General Assembly, United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules):
resolution / adopted by the General Assembly, 8 January 2016, A/RES/70/175. https://www.refworld.org/docid/5698a3a44.
html [accessed 10 July 2020]

69

U.S. Department of Justice Federal Bureau of Prisons, Transgender Offender Manual (2018).

27

preferred name could not be used by staff or officers specifically because it was not on their
TDCJ identification. Notably, legal names are not used only on identification documents and
interpersonal interactions. They are also used in other contexts. For example, Bailey reported
that she had “sent in [a] request to at least have an “AKA” of my preferred name added to my
file. But they will not do so. It’s not legal they say. When we send out mail, we have to use our
legal names or it won’t go out.”
Some transgender incarcerated persons wrote that the staff were not permitted, per their
unit’s policy, to call transgender incarcerated persons by anything other than their last name.
This is contrary official Federal Bureau of Prisons (“FBOP”) policy. Current FBOP policy states:
Transgender inmates often prefer to be called by pronouns of their identified gender identity.
Staff may choose to use these gender-specific pronouns or salutations per the inmate’s request,
and will not be disciplined for doing so.70 Texas does not have any overarching state policy
which addresses the recognition of incarcerated persons’ preferred or affirming names by staff
or officers. While the FBOP permits staff to facilitate administrative name recognition to affirm
people’s identities regardless of their legal name, some units prevent TDCJ staff from using
anything other than the legal name of the transgender individual.71

A simple administrative decision to permit the addition

70

of preferred name for persons who identify as transgender to

60

identification documents would allow incarcerated transgender
persons to change their name on their official documents and

50

hopefully enjoy the positive impacts associated with the use

40

of their preferred name and accompanying recognition of their
30

gender identity. Once administrative directives permit the use
of preferred names on identification documents for transgender

20

people, the administration should follow up with a set of
10

guidelines and requirements for officers and staff to, if using
a person’s first name, use their preferred name. One way to
ensure guidelines and requirements are followed would be to
enfold a directive to add preferred names on TDCJ identification
documents would be to add the directive in with PREA policies.
70
71

Yes

No

Not sure

Did your paperwork where you
were incarcerated include your
preferred name?

Federal Bureau of Prisons, Transgender Offender Manual 9 (2017), https://www.bop.gov/policy/progstat/5200.04.pdf.
Several transgender incarcerated persons reported that officers refused to call them by anything other than their last name,
legal name, or TDCJ number, citing TDCJ policy.

28

N A M I N G A N D S H A M I N G Violations of the Human Rights of Transgender Persons with Felonies in Texas

110

Transgender incarcerated persons stated that there was

100

ignorance, dislike, or hatred for transgender people within their

90

unit by staff or officers. An administrative decision to permit the

80

use of preferred names and request staff or officers to use preferred

70

names if the individual is transgender may need to be accompanied

60

by education on why the use of preferred names is important to

50

the well-being of transgender people. The administrative decision

40
30
20
10

Yes

No

Not sure

Have you experienced discriminatory
treatment by staff or officers because
of your gender identity?

should also be accompanied by clear guidelines on when to use a
preferred name; transgender incarcerated persons’ answers as to
why staff and officers refused to use their preferred names varied
from it being determined by higher-ranking officers, prison policy,
and personal preference. A uniform policy across all prisons
would ensure uniform expectations for both staff, officers, and
incarcerated people, and could reduce depression and suicide
rates among transgender incarcerated persons.

Preferred names for transgender people are not the same as nicknames, and transgender
incarcerated persons recognized the difference between the two. Tabitha, a transgender
woman, wrote that she also has a nickname, used out of affection. However, her preferred
name remains “Tabitha.” In the case of Tabitha, if the TDCJ and the FBOP permitted the use of
preferred names for people who are transgender, her card would have her male-sounding legal
name and her preferred name of Tabitha. Her nickname would not be on her ID.
The disproportional effect of TFC 45.103 is seen by the fact that thirty-one transgender
incarcerated persons described how the situations that staff contributed to or subjected them
to upset them mentally and emotionally. Rosa wrote that “a combination of actions/words
that have happened throughout my incarceration . . . has led to me feeling violated and
uncomfortable by staff.” One officer told Maria that “I don’t give a damn what you want to
be called. You have no rights. What’s on your ID is what I’d call you. You’re not special or will
you or anyone else receive special treatment.” Similarly, Fiona said that she was told by unit
authorities that whatever “fag name” she “goes by is immaterial.” The only name that the
TDCJ cared about, Fiona related, was her legal name. Natalie, when comparing the officers
to her fellow incarcerated persons, said “The officers, on the other hand, make fun of me,
call me rude and derogatory names, fag, punk, etc.” Conversely, transgender incarcerated
persons overwhelming indicated that other incarcerated people generally used their preferred
name. Twenty-one transgender incarcerated persons added more information about their

29

experience with other incarcerated people using their preferred name. The results were mixed.
Danielle said that “though it’s common for some prisoners to use male pronouns and to harass
transgenders, most here are polite and courteous.” Four other women agreed with her. Others
wrote that incarcerated persons who did use gender-congruent names and pronouns were
either close friends and acquaintances or a part of the LGBTQ+ community. Isabel said that in
her experience, non-LGBTQ+ persons would rarely use her preferred name. However, in her
more LGBTQ+ friendly unit, almost everyone called her by her preferred name.
Transgender incarcerated persons also emphasized the positive effect of affirmation of
their gender identity. “When people address me by my preferred name,” wrote Kathrine, “it
decreases my anxiety and increases my confidence causing positive impact, which allows me
to feel free to be who I am.” This was echoed by Nikki, who stated that she felt safer “when my
[preferred] name is used […] because [someone uses it] I feel they acknowledge the conflicts
and difficulties clearly [around being transgender].”
Iris wrote that the people with whom she had positive relationships would “call me by MY
name and use the proper pro-nouns. This would make me feel affirmed as who I am.” Yazmin
noted again that other incarcerated people were more likely to use the respondent’s preferred
name. “The fact that offenders call me [my preferred name] and recognize me as a transgender
woman, eases the stress and depression I experience when staff members belittle/harass me
because I am transgender.” Similarly, Natalie reported that “the majority of men inmates treat
me as [Natalie], which makes me feel good at heart and in spirit. The officers, on the other
hand, make fun of me, call me rude and derogatory names, fag, punk, etc.”
The use of a legal name and denial of gender identity often led to harmful effects for the
respondent. Celeste elaborated on how being called her legal name caused emotional and
psychological distress:

“I hate being called anything other than [Celeste] cause that’s who I am and forever will
be. To be called another name than your own makes us feel like a[n] alien. Most times
it’s hard to focus on what the person said or does [because] I see the disrespect dealt to
me, and it touches a trigger from a lifetime of abuse. Transwomen in Texas Prisons go
through hell, to add to the problem we’re made to dress, groom, and look like men while
being given hormones and bras. It’s like having surgery and only getting half done. Our
names are serious and should be able to connect to who we really are.”

30

N A M I N G A N D S H A M I N G Violations of the Human Rights of Transgender Persons with Felonies in Texas

What type of discrimination did you experience on the basis of your
gender identity at the hands of prison officials?

Discriminatory language was used
Hostile gestures or negative
body language was used
Intentionally called by or referred to by a
legal name that was not my preferred name
Unintentionally called by or referred to by a
legal name that was not my preferred name
There was no clear reason for the treatment
Other
Verbal harassment on violence
Physical harassment or violence
Sexual harassment or violence
Coercion, such as extortion (forced
to do soemthing for someone that
you otherwise would not do

10

20

30

40

50

60

70

80

This refusal to use a preferred name is not an isolated discriminatory incident. Tabitha
wrote that other incarcerated people specifically use her legal name instead of her
preferred name to upset and provoke her, demonstrating how the immediate denial of
recognition of one’s gender identity through the use of a preferred name can lead to
emotional distress. The denial of the use of the preferred name of an individual is a
violation of the right to a name.

Devonna was convinced that the recognition of her preferred name would contribute
to a better mental state because she would be treated as a person whose human rights
were respected. “Being able to change my name immediately would stop/prevent most,
if not all, the stigma of correctional staff calling me out my name and harassing me,
and it would prevent or slow the depression and negative treatment/feelings I’ve had to
experience the last 18 years in prison. Upon entering the free world (as I do in a male
prison environment) will be living as a female, not male and will be marrying a man not
a woman. The only person’s business it is that I was [born] as male is my husband’s.”

90

31

12.78%
Some other incarcerated people
used my preferred name.
12.03%
Few or no other incarcerated
people used my preferred name.
20.30%
Other

Did other incarcerated
people where you are/were
incarcerated use your preferred
name upon request?

54.89%
Yes, other incarcerated people
generally used my preferred name.

Anne Marie felt as though her right to a name would never be respected due to TFC
45.103; Anne Marie will never be eligible to petition to change her name. “How am
I going to complete my transition if I am forced to use a male name for the rest of my
life?” Anne Marie asked. She then explained the psychological and emotional distress
from the denial of her human rights to expression and non-discrimination. “…Having
personally spent most of the last two years on the ragged edge of suicide, I have a better
understanding of the pain being forced to live a dual existence can cause, than I might
otherwise wish to have. I have, in fact, been placed on suicide watch twice in the last
year alone.” Anne Marie summed up her story by relating to how the denial of her human
right to a name directly affected her mental health. “The refusal of Texas to allow us to
legally change our names is a denial, and theft of, our identity and sense of self,” she
wrote. “How can that not irreparably damage a person’s mental and emotional health
and stability?”

Celine is in a similar situation to Anne Marie, and due to TFC 45.103, she may not be able
to petition for a legal change of name for an extraordinary length of time. She pointed
out how the denial of a right to a name relates to the right to freedom of expression.
“When I submit any paperwork in my preferred name, it makes me feel alienated when
these people force me to use my legal name. … I am NOT comfortable being anything
other than myself. ... It really is like I am lost, when someone calls me by my “legal
name.” I didn’t choose that name, it was chosen for me at birth. I should have a choice
in my name.”

By preventing transgender incarcerated persons from petitioning for a change of name,
TFC 45.103 impedes them from participating in society as their preferred gender. The use of

32

N A M I N G A N D S H A M I N G Violations of the Human Rights of Transgender Persons with Felonies in Texas

their legal name by staff and other incarcerated persons causes emotional distress and gender
dysphoria. This is a violation of these transgender incarcerated persons’ right to a name, and
Texas should therefore amend or repeal 45.103 to comply with human rights law.

C. RIGHT TO FREEDOM OF EXPRESSION
The right to freedom of expression is a fundamental human right recognized in many modern
societies. The right to freedom of expression is included in international treaties such as
the Universal Declaration of Human Rights, the ICCPR, and the American Convention on
Human Rights (ACHR). The ICCPR, in particular, states that “everyone shall have the right to
freedom of expression.”72 The Special Rapporteur for Freedom of Expression of Inter-American
Commission on Human Rights clarified that the right of an individual to express themselves
as their self-identified gender is a protected and relates to the dignity of an individual.73 The
IACtHR held that “the right to identity and, in particular, the manifestation of identity, is
also protected by Article 13 [of the American Convention] … from this standpoint, arbitrarily
interfering in the expression of the different attributes of the identity may signify a violation
of this right.”74
TFC 45.103 prohibits transgender persons convicted of a felony from expressing their
gender identity by prohibiting a change of name. Under Article 19 of the ICCPR and Article 13
of the ACHR, these restrictions are justified if they are: i) provided by law; ii) must be necessary
to respect the right or reputation of others; or iii) for the protection of national security or of
public order, or of public health or morals.
In 1994, the Fifth Circuit Court of Appeals of the United States upheld the constitutionality of
the TFC 45.103 when it was challenged by a petitioner whose petition for a legal name change
to reflect his conversion to Islam was prevented by this law. In the decision, the Fifth Circuit
claimed TFC 45.103 was enacted for “security reasons.”75 The court declared that the provision
is “intended to protect the ability to identify persons sought on warrant and detainer, and to
preserve the criminal history of felons,” and therefore has a “logical connection to legitimate

72
73
74
75

999 U.N.T.S. 171; S. Exec. Doc. E, 95-2 (1978); S. Treaty Doc. 95-20; 6 I.L.M. 368 (1967)
Id. at 37; see also IACHR, Annual Report 2009. Report of the Special Rapporteur for Freedom of Expression, December 30,
2009, Chapter II (Inter-American Legal Framework on the Right to Freedom of Expression), ¶¶ 54-57.
GENDER IDENTITY, AND EQUALITY AND NON-DISCRIMINATION OF SAME-SEX COUPLES, Advisory Opinion OC-24/17, InterAm. Ct. H.R. ¶ 96 (Nov. 24, 2017).
Matthews v. Morales, 23 F.3d 118, 131 (5th Cir. 1994).

33

state penological concerns.”76 Although the
Fifth Circuit does not reference legislative
history, they are likely basing this on the
Bill Analysis for CSHB837--the House
Companion to SB 334:
“In many cases, convicted felons have
simply changed their names through court
proceedings, which have kept the police
from finding out their previous criminal
history. CSHB 837 would keep felons from
abusing the system for name changes and
assign a correct criminal history to the
people who have changed their names.”77

Texas Capitol in Austin, Texas

The office of John Whitmire, a Texas Senator who wrote SB 334, has confirmed with the
Human Rights Clinic that this characterization of the purpose of the name-change restrictions
by the Fifth Circuit is correct. The justification for TFC 45.103 given by courts in Texas suggests
that the purpose of the section is for security and public order. However, even if these were
legitimate purposes, this can be achieved by less restrictive practices, and the infringement on
the fundamental right to freedom of gender expression is unwarranted.
The IACtHR indicates that despite enjoying protection by various provisions of the American
Convention, the right to change one’s name is indeed limited with regards to how it may affect
the rights of others. “If the State rejects the name change request – unless it does so because this
could affect the rights of third parties – it would be committing a discriminatory act that violates
the rights to a name, personal integrity, protection against arbitrary and abusive interference in
private life, and equal protection of the law.”78 The IACtHR clarifies that any law that restricts
the right to change a name “must be necessary for the purposes of the Convention and conform
to the principle of proportionality.”79 TFC 45.103, on the other hand, makes a distinction based
on the status of whether a person has been convicted of a felony and imposes additional,
76
77
78
79

Id.
House Research Organization of the Texas House of Representatives, Bill Analysis, 1991-HB837. 108-110, 72(R), at 109 (1991).
GENDER IDENTITY, AND EQUALITY AND NON-DISCRIMINATION OF SAME-SEX COUPLES, Advisory Opinion OC-24/17, InterAm. Ct. H.R. ¶ 43 (Nov. 24, 2017).
GENDER IDENTITY, AND EQUALITY AND NON-DISCRIMINATION OF SAME-SEX COUPLES, Advisory Opinion OC-24/17, InterAm. Ct. H.R. ¶ 36 (Nov. 24, 2017).

34

N A M I N G A N D S H A M I N G Violations of the Human Rights of Transgender Persons with Felonies in Texas

severe restrictions on those with such status. This is a higher threshold than that set forth by
the IACtHR in an Advisory Opinion. The Advisory Opinion examined name-change laws that
were less restrictive and disproportional to the value of the relevant state interests than the
restrictions and disproportionality of TFC 45.103. The opinion found those name-change laws
violated human rights, including the right to freedom of expression.
The ICCPR Article 19(3) allows for certain restrictions by law that are necessary for public
order,80 but with today’s technology, there is little security risk to the public if a transgender
individual changes their legal name. In fact, more security is provided because the criminal
records of the individual will link to the name the individual uses in daily life. For incarcerated
persons who are in the custody of the state and assigned numbers for security purposes, there
is absolutely no risk to public safety that would permit the exception to apply. As discussed
earlier, TPI has been submitting complaints for some time now using only affirming names,
legal last names, and TDCJ numbers. They have submitted 140 such complaints to various
offices within TDCJ and there has yet to be a single identification problem. In the case of
TFC 45.103, transgender persons in detention have been deprived of liberty and are under
strong control of the prison authorities. In these circumstances, any restriction of their other
rights must be absolutely necessary to achieve national security or public order. As is clear by
TDCJ’s ability to identify individuals without using their dead name,81 restricting incarcerated
person’s ability to express their gender by changing their name is not a necessary restriction
to achieve these objectives. Taking into account all of these human rights documents, the
TFC 45.103 imposes impermissible restrictions on several basic human rights of transgender
persons convicted of a felony.

Yet, transgender incarcerated persons continually face repeated violations of their right
to freedom of expression. Officers in the TDCJ have repeatedly refused to recognize the
gender identity of transgender incarcerated individuals.

As Arielle described her experience, “We [transgender women who are incarcerated] are
talked down to. Most officers and ranking officers say this is not a women prison and you
[transgender women in male prison facilities] don’t get special treatment cause you want
to be a ‘fake woman.’”

80 Id.
81 The phrase “dead name” refers to the name that a transgender person was given at birth and no longer uses upon transitioning.

35

Transgender incarcerated persons like Anne Marie described situations where she
experienced “frequent use of male pronouns despite the fact I have repeatedly made
it known that I identify as female.” Anne Marie was also “[c]onstantly being told that
I don’t ‘look female’ when [staff] refuse to give me access to things I need to do so.”
Tabitha reported being told by an officer that “until you get your dick cut off you still a
man” and “this is not a women[‘s] prison. You don’t get special treatment cause you want
to be a ‘fake woman.’” Yet another respondent, Briana, reported a similar situation, that
“I’ve had male officers tell me that I’m not a woman . . . because I’m in a men’s prison.”

When transgender incarcerated persons asked staff to use their preferred name as a part
of their gender identity expression, transgender incarcerated persons report stories such
as Katherine’s.

Katherine reported that “I have been cussed out from asking them to use [Katherine] or
refused to use my female identity. [They say] ‘you’re still a male!’ . . . I get very pissed and
upset,” she wrote. She has filed grievances on the matter, which were denied.

In addition to having their identities denied by members of prison staff through the
denial of use of their preferred name, some transgender incarcerated persons described
situations in which officials denied them more fundamental manifestations to the right
to freedom of expression.

Natalie said she is “forced to live outwardly as a male in TDCJ, forced to wear men’s
clothing, cannot wear any type of makeup, etc. No social transitioning is allowed. TDCJ
only states we are males in a male facility and no make-up etc. is allowed.” Cheyanne
highlighted why it is important to for her to wear women’s clothing and how the denial of
gender identity through freedom of expression can lead to humiliation for the transgender
person. “Officers don’t call me by my transgender name,” said Cheyanne. “Then I tell them
what my name is. I am a girl – I do the shots, hormone shots, and hormone pills. I do wear
a bra … and I [have] been on hormones for a long while now and my breast[s] are and do
show.” Helene succinctly pointed out that “The stress and continual costs of medical care
from my genital mutilation as symptoms of gender dysphoria would be better [spent] as
would my health by allowing these non-invasive treatments of transpeople.”

36

N A M I N G A N D S H A M I N G Violations of the Human Rights of Transgender Persons with Felonies in Texas

As Katherine noted, the treatment she and other transgender incarcerated persons receive
because they desire to have freedom of expression “has not one thing to do with anything
criminal with me.” Helene wrote that she experiences distress every time she has to use
her non-gender congruent legal name instead of her preferred name.

The denial of the freedom of expression by denial of a legal name change is a human
rights violation, and that violation is harmful to affected individuals. The treatment these
persons face in prison, in addition to the refusal of the legal system to recognize their
affirming names, is not consequential to their incarceration or in furtherance of state
interest in protecting national security or public order. TFC 45.103 sanctions the denial of
gender expression of transgender persons and violates their right to freedom of expression.

D. RIGHT TO EQUALITY AND NON-DISCRIMINATION
TFC 45.103 further violates the human right to equality and non-discrimination of transgender
individuals. The right to equality and non-discrimination is an established human right protected
by several international human rights instruments, including the Universal Declaration of
Human Rights,82 the UN Charter,83 the ICCPR,84 the American Declaration,85 and repeatedly
noted by designated human rights authorities such as the United Nations’ Special Rapporteur

82

83

84

85

Universal Declaration on Human Rights—Art. (2)1: “Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.”
Art. 1(3): “The Purposes of the United Nations are: …To achieve international cooperation in solving international problems of
an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for
fundamental freedoms for all without distinction as to race, sex, language, or religion.”
Art. 2(1): “Each State Party to the present Covenant undertakes to respect and to ensure to all persons within its territory
and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status;” Art. 3: The
States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil
and political rights set forth in the present Covenant;” Art. 26: “All persons are equal before the law and are entitled without
any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee
to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.” Article II of the American Declaration of the
Rights and Duties of Man: “All persons are equal before the law and have the rights and duties established in this Declaration,
without distinction as to race, sex, language, creed or any other factor.”
Art. III (“All persons are equal before the law and have the rights and duties established in this Declaration, without distinction
as to race, sex, language, creed or any other factor.”).

37

on Torture.86 TFC 45.103 violates the human right to equality and non-discrimination by
disproportionally exposing transgender incarcerated persons who seek are denied of name to
demeaning and harmful conduct. Several human rights bodies have recognized that forcing
transgender persons to present identification documents incongruous with their gender
significantly interferes with their ability to access and exercise several basic social services
and rights. In a 2011 report to the UN, the High Commissioner stated, “In many countries,
transgender persons are unable to obtain legal recognition of their preferred gender, including
a change in recorded sex and first name on State-issued identity documents. As a result, they
encounter many practical difficulties, including when applying for employment, housing, bank
credit or State benefits, or when traveling abroad.”87 The European Commission has recognized
that “[i]n daily life, incongruence between one’s gender presentation and gender marker on
identification documents causes several problems including inability to marry or enter into a
registered partnership with one’s partner, difficulties in accessing or staying in employment,
and difficulties in accessing goods and services e.g. difficulty in proving one’s identity when
picking up a parcel at the post office, purchasing insurance or boarding an aeroplane.”
The IACtHR also addresses this issue by holding that because “the difference between the
sexual gender identity assumed by a person and the one that appears on the ID... can result
in rejection and discrimination by others... State recognition of gender identity is critical to
ensuring that transgender persons can fully enjoy all human rights, including protection from
violence, torture, ill-treatment, the right to health, education, employment, housing, access to
social security, and freedom of expression and association.”88 Consequently, the IACtHR has
demanded that States must ensure that transgender persons “can exercise their rights and
contract obligations based on [the gender they identify as], without being obliged to purport
another identity that does not represent their individuality, especially so when this involves
continuous exposure to the social questioning of that same identity, thus affecting the exercise
and enjoyment of the rights recognized by domestic and international law.”89
86

“…members of sexual minorities are disproportionately subjected to torture and other forms of ill-treatment because they fail
to conform to socially constructed gender expectations. Indeed, discrimination on the grounds of sexual orientation or gender
identity may often contribute to the process of dehumanization of the victim, which is often a necessary condition for torture
and ill-treatment to take place” United Nations General Assembly, Question of torture and other cruel, inhuman or degrading
treatment or punishment, para. 19 A/56/156 (2001).

87

Discriminatory laws and practices and acts of violence against persons based on their sexual orientation and gender identity,
¶ 71. (2011). https://www2.ohchr.org/english/bodies/hrcouncil/docs/19session/A.HRC.19.41_English.pdf
GENDER IDENTITY, AND EQUALITY AND NON-DISCRIMINATION OF SAME-SEX COUPLES, Advisory Opinion OC-24/17, InterAm. Ct. H.R. ¶ 101 (Nov. 24, 2017).
GENDER IDENTITY, AND EQUALITY AND NON-DISCRIMINATION OF SAME-SEX COUPLES, Advisory Opinion OC-24/17, InterAm. Ct. H.R. ¶ 113,115 (Nov. 24, 2017).

88
89

38

N A M I N G A N D S H A M I N G Violations of the Human Rights of Transgender Persons with Felonies in Texas

TFC 45.103 violates the right to equality and non-discrimination by preventing affected
transgender persons from participating in society as their preferred gender identity. TFC 45.103
also permits continuous exposure to social questioning of that same identity by sanctioning the
repeated use of a legal name instead of a preferred name that is congruent with the transgender
individual’s gender identity. The effect of TFC 45.103 violates the standards set forth by the
IACtHR on the right to equality and non-discrimination.
In re Barnes was the first court case challenging the constitutionality of TFC 45.103. In
that case, the plaintiff was seeking to change his legal name to reflect his religious beliefs
following his recent conversion to Islam. However, because he was incarcerated and convicted
of a felony, he was unable to do so.90 In this case, the Fifth Circuit Court of Appeals ruled that
TFC 45.103 was constitutional, and failed to recognize the plaintiff’s First Amendment right to
religion.91 This ruling continues to wrongfully support Texas’s refusal to recognize the affected
individual’s right to change their name.
Transgender incarcerated persons noted that even when requested, TDCJ officers would
continue the discriminatory use of a legal name that is not congruent with the individual’s
gender identity and presentation. Despite TDCJ stating that all staff understand their
responsibilities to be respectful and use proper terms, TDCJ is not following their own internal
policies92 by failing to facilitate the recognition of a preferred name of an individual. The
TDCJ recognizes in its required PREA training that transgender incarcerated persons may be
“at greater risk for abuse” and
“the LGBTI population often encounters biases and negativity when they … are honest about
their self-identification … or when present themselves in a gender non-conforming manner.
The TDCJ Code of Conduct requires staff to treat all offenders with professionalism. ... Staff
will utilize proper terms and respectful language and never use demeaning language or
common slurs.”93 [emphasis added]

Even when TDCJ officers and staff were not using preferred first names, transgender
90 Id.
91 Id.
92 The TDCJ already, on paper, is against discrimination. Its official policies state that discrimination or harassment is a policy
violation. “Discrimination or harassment based on race, color, religion, sex (gender), including sexual harassment, national
origin, age (40 or above), disability, or genetic information is prohibited. …Mistreatment of Offenders - Violation Level 2:
Mistreatment usually takes the form of physical abuse, but may also include such actions as threats or unauthorized denial
of privileges or entitlements.” Texas Department of Criminal Justice: General Rules Of Conduct and Disciplinary Action
Guidelines for Employees”, P-22 (11/2019).
93

PREA Staff Training Video, https://www.youtube.com/watch?v=sG2p4M2V6_c (last visited June 18, 2020).

39

incarcerated persons reported that they used pronouns that were not congruent with the
individual’s gender identity. Further, as a public authority, the TDCJ’s obligation to protect
the right to equality and non-discrimination includes ensuring that transgender incarcerated
persons have equal access to seats, tables, and common recreational areas. Staff must be
provided comprehensive human rights training to ensure that the human rights of transgender
incarcerated people are upheld.

What is PREA?
In September 2003, the Prison Rape
Elimination Act (PREA) was passed
unanimously by both Houses of Congress and
signed into law by President George W.
Bush. The purpose of the act was to provide
for the analysis of the incidence and effects
of prison rape in federal , state , and local
institutions
and
provide
information,
resources, recommendations , and funding to
protect individuals from prison rape. The act
created the National Prison Rape Elimination
Commission and charged it with developing
draft standards for the elimination of prison
rape. The draft standards were submitted to
the Department of Justice for review and
passage as a final rule. The final rule, 28
C.F.R. Part §115 became effective in August
2012.

This image comes from
the TDCJ website and
describes the Prison Rape
Elimination Act.

Even if the PREA policy above were followed and the staff respected the human rights of
persons affected by TFC 45.103, TFC 45.103 is still unlawful in respect to the clear violation of
the human rights of transgender persons, resulting in the continuous social questioning of an
individual’s gender identity. The Human Rights Committee clarified in Broeks v. The Netherlands
that Article 26 of the International Covenant on Civil and Political Rights (“ICCPR”), a treaty
to which the United States is party, “prohibits discrimination in law or in practice in any field
regulated and protected by public authorities.”94
Krista said that “[Officers and staff] refuse to call me as “Ms.” or even my preferred name,”
while Gabrielle said that officer and staff told her that “[it’s] against TDCJ policy for [officers
and staff] to call me by a name that is not on my birth certificate.” When Katelyn specifically
requested to be called by her preferred name, she was refused. “The only way to stop this
discrimination,” she wrote, “is for me to receive a legal name change.”
94

CCPR/C/29/D/172/1984 (9 April 1987) ¶ 12.3 (emphasis added).

40

N A M I N G A N D S H A M I N G Violations of the Human Rights of Transgender Persons with Felonies in Texas

Celeste wrote that officers and staff do not “at all” use her preferred name. It’s “always male
pronouns and given birth name, Mr. [last name], or Offender or Inmate.” Only six out of the 132
transgender incarcerated persons who wrote to the Clinic said that staff and officers generally
used their preferred name.

TFC 45.103 permits the continued discriminatory treatment against the right to equality
and non-discrimination for transgender persons both inside and outside of incarceration
institutions.
Transgender incarcerated persons explained that verbal harassment or violence, intentional use
of a legal name, and discriminatory language were the most common types of discrimination
experienced.

Almost all persons surveyed identified incidents of discrimination by staff, officers,
and other incarcerated people due to their gender identity. Without a legal name change,
these transgender incarcerated persons will continue to be subjected to the demeaning and
discriminatory use of a legal name that is not congruent with their gender identity.
The Human Rights Committee in G v. Australia unequivocally stated that “the prohibition
against discrimination under article 26 [of the ICCPR] encompasses discrimination on the
basis of marital status and gender identity, including transgender status.”95 Therefore, under
the ICCPR, the TDCJ may not discriminate against its transgender incarcerated people.
The TDCJ further recognizes its own responsibility to prevent discrimination in its Code of
Conduct, where it states that “discrimination or harassment based on race, color, religion,
sex (gender), including sexual harassment, national origin, age (40 or above), disability, or
genetic information is prohibited.”96 This includes the use of words or actions that humiliate or
show hostility or animosity towards an individual.97
As a public authority, TDCJ must honor the human right of equality and non-discrimination
by ensuring that transgender incarcerated people do not experience discriminatory treatment
and continuous social questioning of gender identity at the hands of its officers and staff.
Despite the requirements from international human rights treaties for humane treatment and
the TDCJ’s Code of Conduct that staff must use non-discriminatory language,
95
96
97

G v. Australia, Human Rights Committee, No. 2172/2012, CCPR/C/131/D/2172/2012 (2017), para 7.12.
Texas Department of Criminal Justice: General Rules Of Conduct and Disciplinary Action Guidelines for Employees”,
P-22 (11/2019).
Excerpt from PD-22, “General Rules of Conduct and Disciplinary Action Guidelines for Employees” (rev. 16) November 1, 2019
Prepared by Human Resources Support Operations.

41

transgender incarcerated persons were called numerous abusive names and slurs by staff, including
“faggot” and “queerbait.” Eight people stated that officers called them “derogatory names” or
“unkind names,” while others like Katya specified how officers had called her derogatory and
humiliating names based on her gender identity such as “nasty bitch” and “queer.”

Transgender incarcerated persons clearly related the discriminatory treatment to their
gender identity. The derogatory names are a large contributor of this discriminatory treatment
towards transgender persons. Following this pattern of verbal harassment and abuse, the
majority of transgender incarcerated persons informed the organizations that staff would
intentionally use their legal name as a way to cause psychological harm and distress.98 This is
not only against international human rights treaties but also the Code of Conduct set forth by
TDCJ in its PREA compliance training videos, which each employee must certify that they have
watched for training.99 Because TFC 45.103 prevents transgender incarcerated persons from
changing their legal name, transgender incarcerated persons must suffer the use of their legal
name as a part of an established pattern of discrimination and continuous social questioning
of gender identity.
TDCJ similarly must prevent discrimination on the basis of gender identity caused by
other incarcerated people. In addition to discrimination from staff and officers, transgender
incarcerated persons also face discrimination from other incarcerated people.

When asked, “Have you experienced discriminatory treatment by other incarcerated people
because of your gender identity,” 74 out of 92 transgender incarcerated persons answered
yes, 15 answered no, and three answered not sure. Of the 74 transgender incarcerated
persons who experienced discrimination, 53 stated they were intentionally called by or
referred to by a legal name that was not their preferred name. The TDCJ Code of Conduct
also requires its staff to report any “alleged acts of discrimination or harassment against
persons of a protected class, discourteous conduct of a sexual nature, or retaliation.” This
includes acts of discrimination involving intentional use of a legal name, the very same act
of discrimination which is protected by TFC 45.103 and perpetrated by the TDCJ.
Transgender incarcerated persons reported that discriminatory language, verbal

98

When asked “Have you experienced discriminatory treatment by staff or officers because of your gender identity,” 109 out of
117 transgender incarcerated persons answered yes, one answered no, and three answered not sure. Of the 109 transgender
incarcerated persons who experienced discrimination, 84 stated they were intentionally called by or referred to by a legal
name that was not their preferred name.

99

Texas Department of Criminal Justice Standard or Supplemental Safe Prisons/PREA Training Contract Employee or
Intern Acknowledgment Form, PERS 631 (06/17).

42

N A M I N G A N D S H A M I N G Violations of the Human Rights of Transgender Persons with Felonies in Texas

harassment or violence, intentional use of a legal name, and physical harassment or
violence were the most common types of discrimination experienced. The 60 further
written responses on the question of discriminatory incidents involving other incarcerated
people would are summarized well by Tasha, who stated that “Other inmates who do not
like transgender females call us names, refuse to associate with us, and are often violent
towards us.” In addition to physical and sexual assaults, transgender incarcerated persons
wrote that other incarcerated people would deny LGBTQ+ people seats at benches or
tables in common areas or access to recreation rooms, all of which are areas under the
direct control and supervision of TDCJ staff and officers.
Sarah reasoned that “because others who do not understand [transgender people]
find that they can’t handle who I am, they call me names or threaten me with harm.”
However, Sarah and others like her should not experience harassment and assault to the
degree which they do because of their gender identity while in the custody of TDCJ.

In addition to discrimination within incarceration institutions, people whose legal name is
not congruent with their gender identity and presentation experience discrimination outside
of incarceration institutions.

Shawna, who will not be eligible for a name change after she is discharged from
incarceration, wrote that:
“Using my legal name will be harder to explain instead of my preferred name. And not
to mention finding housing and getting a job. Not having my preferred name on file and
changing my legal name worries me everyday because I will most likely end up either
homeless or back in prison. Something as simple as a name change can give me peace
of mind.”
Shawna was not the only respondent to point out the effects of TFC 45.103 in life beyond
incarceration, and their concerns are not unfounded. Being transgender and not being
able to pass for cisgender or having congruent legal documents can lead to measurable
discrimination. One pilot study found that “[h]ousing providers told transgender testers
about fewer units than they told cisgender homeseekers, and they were less likely to tell
transgender testers who disclosed their gender status about available units.”100 Primary
data from the 2015 US Transgender Survey found that “32% of transgender incarcerated

100 Urban Institute: Metropolitan Housing and Communities Policy Center, A Paired-Testing Pilot Study of Housing
Discrimination against Same-Sex Couples and Transgender Individuals, (June 2017) at 66.

43

USA
TX

persons who had presented an ID that did

DRIVER LICENSE

' c,... c

not match their gender presentation had

-4b

a

negative

experience,

including

Exp

verbal

harassment (25%), denial of service (16%),
and assault (2%)” when trying to access health
care, employment, banking, and other types of
social institutions.101

12

Restrictions

11 Hgt

NONE
1sSex

1aEnd

NONE

11Ey"

s DD

Research supports the conclusion that having non-concordant identification documents
with gender presentation results in discrimination.102
It is clear that TFC 45.103 disproportionately harms incarcerated transgender persons not
only by subjecting them to discrimination while they are incarcerated, but also subjecting them
to discrimination beyond the walls of a prison cell. This is a violation of the right to equity
and non-discrimination, and Texas must amend, repeal, or at least mitigate the effects of TFC
45.103 to be in compliance with international human rights law.

E. RIGHT TO HUMANE TREATMENT
The right to be free from cruel, inhumane, or degrading treatment is protected by Article 5 of
the Universal Declaration of Human Rights,103 Articles 7 and 10 of the ICCPR,104 Article 3 of
the European Convention,105 and Article 5 of the American Convention.106 The right to humane
treatment is fundamentally rooted in the principle of human dignity that is the basis for all
human rights and is guaranteed to persons deprived of liberty. The State’s power is limited to
actions that do not deny persons basic human dignity. The IACtHR explains:

101 National Center for Transgender Equality, 2015 U.S. Transgender Survey, http://www.ustranssurvey.org/
102 See also Lydia A. Fien et al, Transitioning Transgender: Investigating the Important Aspects of the Transition: A Brief Report,

103
104
105
106

International Journal of Sexual Health, 2017, Vol. 29, No. 1, 80-88; Jaime M. Grant et al, Injustice at Every Turn: A Report of
the National Transgedner Discrimination Survey, National Center for Transgender Equality and National Gay and Lesbian
Task Force, (2011).
UDHR Art. 5: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
ICCPR Art. 7: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment;” Art. 10(1): “ All
persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”
ECHR Art. 3: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
ACHR Art. 5(1)-(2): “Every person has the right to have his physical, mental, and moral integrity respected. No one shall be
subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be
treated with respect for the inherent dignity of the human person.”

•

44

N A M I N G A N D S H A M I N G Violations of the Human Rights of Transgender Persons with Felonies in Texas

“The recognition of the dignity inherent in every person independent of his or her personal
conditions or legal situation is the basis of the development and international protection of
human rights. Accordingly, the exercise of public power has certain limits that stem from the
fact that human rights are attributes inherent to human dignity. The protection of human rights
is based on the affirmation of the existence of certain inviolable attributes of the human person
that cannot be legally impaired or diminished by the exercise of public authority.”107

Article 16 of the Convention against Torture and Other Cruel, Inhumane or Degrading
Treatment or Punishment (“CAT”) states that “[e]ach State Party shall undertake to prevent
in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment
or punishment which do not amount to torture108…”109 Both the UN Special Rapporteur on
Torture and Other Cruel, Inhuman, and Degrading Treatment (“Special Rapporteur”) and the
UN Human Rights Committee have established that this extends to the infliction of mental, as
well as physical harm. In particular, the Special Rapporteur has stated:
“States fail in their duty to prevent torture and ill-treatment whenever their laws, policies
or practices perpetuate harmful gender stereotypes in a manner that enables or authorizes,
explicitly or implicitly, prohibited acts to be performed with impunity. States are complicit in
violence against women and lesbian, gay, bisexual and transgender persons whenever they
create and implement discriminatory laws that trap them in abusive circumstances.”110

The standard for what treatment constitutes “cruel, inhumane, or degrading” treatment
is clear.111 The Special Rapporteur has not defined what the threshold for cruel, inhuman,
or degrading treatment is, but has declared that such treatment inflicts physical or mental
suffering that falls short of “severe” suffering that would constitute “torture.”112 Thus, both
107 Report on the Human Rights of Persons Deprived of Liberty in the Americas, IACHR (2011), ¶ 66.
108 CAT Art. 1: “For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person …”
109 CAT Art. 16.
110 Juan E. Mendez, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment,
A/HRC,31/57 (2016), ¶ 10.
111 Moeckli (2010) p. 215.
112 Report of the Special Rapporteur on the question of torture, Manfred Nowak, CIVIL AND POLITICAL RIGHTS, INCLUDING
THE QUESTIONS OF TORTURE AND DETENTION, E/CN.4/2006 (2005) ¶ 35: “Torture is defined in [The Convention Against
Torture], article 1, as acts which consist of the intentional infliction of severe pain or suffering (physical or mental), involving a
public official (directly or at the instigation or consent or with the acquiescence of a public official, or another person acting in
an official capacity), and for a specific purpose (i.e. extracting a confession, obtaining information, punishment, intimidation,
discrimination). Acts which fall short of this definition, particularly acts without the elements of intent or acts not carried out
for the specific purposes outlined, may comprise CIDT under article 16 of the Convention. Acts aimed at humiliating the victim
constitute degrading treatment or punishment even where severe pain has not been inflicted.”

45

physical and mental suffering can constitute a violation of the right to be protected from
cruel, inhumane, or degrading treatment. This is a position also held by the UN Human Rights
Committee: “The aim of the provisions of article 7 of the ICCPR is to protect both the dignity
and the physical and mental integrity of the individual.”113
In addition to being against numerous international human rights treaties, the use of a
transgender incarcerated person’s legal name as a tool for verbal abuse is against the Detainee
Treatment Act of 2005 as described by US representatives to the Committee Against Torture. Based
on the act, the verbal abuse constitutes degrading treatment violating the right to equality and
non-discrimination.114 This facet of discrimination demonstrates the ostracization of transgender
incarcerated people and cultivates a culture where staff, officers, and other incarcerated people
can discriminate against transgender incarcerated individuals. A legal name change is a vital
part of a transgender person’s process to align gender expression with gender identity.115 By
denying a legal change of name, TFC 45.103 effectively permits degrading treatment through
discriminatory use of a legal name and continuous social questioning of gender identity.
According to the United States in its response to the United Nations Committee Against
Torture, “under the Detainee Treatment Act of 2005…116 every U.S. official, wherever he or
she may be, is … prohibited from engaging in acts that constitute cruel, inhuman or degrading
treatment or punishment. This prohibition is enforced at all levels of the U.S. government.”117
The enforcement of TFC 45.103 is contrary to this declaration, as the effects of enforcement
result in cruel, inhumane, and degrading punishment under human rights law.
Similar to the prohibition on cruel, inhuman, or degrading treatment or punishment, the United
States Constitution’s Eighth Amendment prohibits “cruel and unusual” punishment.118 In Edmo v.
Corizon, Inc., Andree Edmo, a transgender incarcerated person, sued the Idaho Department of
Corrections (“IDC”), alleging that the IDC’s failure to provide her with gender confirmation surgery
violated her Eighth Amendment protection from cruel and unusual punishment. The Ninth Circuit
113 UN HRC General Comment No. 20.
114 Committee Against Torture, Consideration of reports submitted by States parties under article 19 of the Convention pursuant
to the optional reporting procedure (United States of America), para. 13, CAT/C/USA/3-5 (2013).
115 In an investigation into which aspects of a transgender person’s transition, or the process of aligning gender expression with
gender identity, are considered to be the most important elements of the transition, legal name change was found one of the
top four elements. Lydia A. Fien et al, Transitioning Transgender: Investigating the Important Aspects of the Transition: A Brief
Report, International Journal of Sexual Health, 2017, Vol. 29, No. 1, at 82.
116 (DTA) Pub. L. No.109-163, 42 U.S.C. 2000dd (“No individual in the custody or under the physical control of the U.S. Government,
regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment”).
117 Committee Against Torture, Consideration of reports submitted by States parties under article 19 of the Convention pursuant
to the optional reporting procedure (United States of America), para. 13, CAT/C/USA/3-5 (2013).
118 Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. U.S. Const.
amend. VIII.

46

N A M I N G A N D S H A M I N G Violations of the Human Rights of Transgender Persons with Felonies in Texas

Court held that gender dysphoria is a serious medical need causing clinically significant distress
that is sufficient to “trigger the State’s obligations under the Eighth Amendment.
… As Edmo testified, her gender dysphoria causes her to feel “depressed,” “disgusting,”
“tormented,” and “hopeless,” and it has caused past efforts and active thoughts of selfcastration.119

The Ninth Circuit’s ruling was consistent with established holdings in the Fourth and
Seventh Circuit Courts that “denying surgical treatment for gender dysphoria can pose a
cognizable Eighth Amendment claim” when the denial of surgical treatment affects the
clinically significant distress caused from gender dysphoria.
The Ninth Circuit Court, Seventh Circuit Court, and Fourth Circuit Courts’ establishment of
gender dysphoria as a sufficient medical condition to trigger an Eighth Amendment claim are
contrary holdings to that of the Fifth Circuit, which the Ninth Circuit labels an “outlier.” 120 The
Fifth Circuit Court, in an opinion using the legal name and male pronouns for a transgender
woman, held in the similar case of Gibson v. Collier that “[a] state does not inflict cruel and
unusual punishment by declining to provide [GCS] to a transgender inmate” because the
punishment must be both cruel and unusual, and “[u]nder the plain meaning of the term, a
prison policy cannot be “unusual” if it is widely practiced in prisons across the country.”121 The
Ninth Circuit firmly disagreed, noting that “Edmo established her Eighth Amendment claim
and that she will suffer irreparable harm—in the form of ongoing mental anguish and possible
physical harm [from self-harm attempts]—if [surgical treatment] is not provided.”
In Langan v. Abbott, which is currently pending in the Western District of Texas, the plaintiffs
raise the argument that the harms imposed upon transgender persons barred from changing
their legal name constitutes a punishment that is beyond the terms of their sentence, thus,
constituting a cruel and unusual punishment in violation of the Eighth Amendment of the
Constitution of the United States.122
Surgical treatment for gender dysphoria is not the only part of a transition that, if prevented,

119 See Rosati v. Igbinoso, 791 F.3d 1037, 1039–40 (9th Cir. 2015); Kosilek, 774 F.3d at 86; De’lonta, 708 F.3d at 525; Battista v.
Clarke, 645 F.3d 449, 452 (1st Cir. 2011); Allard v. Gomez, 9 F. App’x 793, 794 (9th Cir. 2001); White v. Farrier, 849 F.2d 322, 325
(8th Cir. 1988); Meriwether v. Faulkner, 821 F.2d 408, 412 (7th Cir. 1987) (and cases cited therein); Norsworthy, 87 F. Supp. 3d
at 1187; Konitzer v. Frank, 711 F. Supp. 2d 874, 905 (E.D. Wis. 2010).
120 Edmo v. Corizon, Inc., 935 F.3d 757, 795 (9th Cir. 2019).
121 Gibson v. Collier, 920 F.3d 212, 226 (5th Cir. 2019), cert. denied, 140 S. Ct. 653, 205 L. Ed. 2d 384 (2019).
122 Complaint at 13-14, Langan v. Abbott, 2019 WL 6633213 (W.D.Tex.). The complaint can be accessed at http://103.tpride.org/
docs/1-19-cv-1182_document001_complaint.pdf.

47

After a discriminatory or uncomfortable incident regarding your legal name,
how often did you experience the following?
60

50

■

Feeling nervous, anxious, or
on edge

■

Not being able to stop or
control worrying

30

■

Worrying too much about
different things

■
■

Having trouble relaxing

20

10

■

Becoming easily annoyed or
irritable

■

Feeling afraid/as if something
awful might happen

40

Not at all

Several days

More than half the days

Being so restless that it is hard
to sit

Nearly every day

will cause distress. Secondary data analysis of the 2015 US Transgender Survey found that
having gender concordant identity documents, such as having a legal name change, resulted
in a statistically significant reduction in suicide ideation and planning.123 Though research
is scant on the experience of transgender persons and legal name changes, this leads to a
reasonable conclusion that a legal name change will also reduce clinically significant distress.
Further, clinically significant distress experienced by a transgender person and insufficient
remedy thereof resulting in mental anguish and possible physical harm may constitute cruel
punishment under the United States’ own constitution. Similarly, the mental anguish and
possible physical pain caused by a denial of a legal name change as a part of a denial of gender
identity is cruel punishment under established international human rights law.
For transgender incarcerated persons, the use of their preferred name was a recognition
not only of their gender identity but also the societal barriers and challenges transgender
people often face. From the supplementary survey, transgender incarcerated persons related
that use of a preferred name was often linked to positive relationships with others and more
positive emotions overall. Recognition of a preferred name uplifted the dignity and humanity
of the transgender individual. Refusal to use a preferred name, though, generally signaled
disrespectful, insulting, and transphobic behavior, as the refusal to use a preferred name is a
denial of gender identity expression. Additionally, transgender incarcerated persons appeared
123 Greta R Bauer, G Perez-Brume & Ayden I Scheim, Gender-concordant identity documents and mental health among
transgender adults in the USA: a cross-sectional study (2020), https://www.thelancet.com/journals/lancet/article/
PIIS2468-2667(20)30032-3/fulltext (last visited Jun 21, 2020).

48

N A M I N G A N D S H A M I N G Violations of the Human Rights of Transgender Persons with Felonies in Texas

to more frequently experience symptoms of anxiety and depression124 when their legal name
was a part of discrimination than transgender incarcerated persons who did not consider the
use of the legal name in discriminatory incidents.125
Finally, the right to humane treatment includes access to psychological and medical support.
In addition to amending TFC 45.103, recognizing the preferred name of the transgender
individual while in incarceration, and providing human rights training to staff, the TDCJ
and Texas must ensure that transgender persons have access to mental health treatment and
gender-affirming physical health support.
Additionally, Edmo’s testimony of her mental anguish and self-harm is similar to that of
the transgender incarcerated persons who wrote to the organizations. Many of the transgender
incarcerated persons specifically recounted how being unable to change their legal names due
to this discriminatory law caused significant distress from gender identity denial.

Katherine said “[a]t previous units, I was humiliated by staff and inmates intentionally
(examples: my hair, makeup, physical features, walk, talk) I was threatened to receive
disciplinary actions if I did not act as ‘[t]he man I was born to be.’ It caused a lot of
anxiety attacks, depression, and social distancing to suicidal thoughts.” Raaya said, “I
feel that the inability to seek legal name change until two years after incarceration is
a way to create mental abuse and [psychological] harm because if an individual has
a life sentence and is never going home then we should be able to change our name
legally.” Nikki opined, “I believe if any torture is prohibited then not allowing a name
change should be added to that list.”

124 The average of the GAD-7 screening was a score of 21. The average of the GAD-7 screening when the respondent answered they
had not considered discriminatory incidents which involved their legal name was 17. The average of the GAD-7 screening when
the respondent answered they had considered discriminatory incidents which involved their legal name was 21.96, a significantly
higher score. A score of 15 or higher out of the 25 possible points on the GAD-7 indicates that there should be a follow-up severe
anxiety. As this score was adapted to evaluate the impact of having a legal name which does not match a respondent’s gender
identity, it is difficult to ascertain the severity of the anxiety. However, this does follow previous studies of high rates of anxiety
among incarcerated people, and the almost five-point difference between transgender incarcerated persons who felt that the
use of their legal name impacted their anxiety and those who did not is significant in an evaluation tool which only ranges from 0
to 25. The average of the CESD-10 screening was a score of 25.44. The average of the CESD-10 screening when the respondent
answered they had not considered discriminatory incidents which involved their legal name was 22.31. The average of the GAD7 screening when the respondent answered they had considered discriminatory incidents which involved their legal name was
25.59, not a significantly higher score. A score of 10 or higher out of the 30 possible points on the CESD-10 indicates that there
is likely depression present. As this score was adapted to evaluate the impact of having a legal name which does not match a
respondent’s gender identity, it is difficult to ascertain the frequency of the depression symptoms.
125 The Human Rights Clinic does not possess the expertise to diagnose or conduct psychological, sociological, or medical
assessments of persons surveyed or interviewed and does not attempt to do so.

49

Courtney reported feeling “anxiety, depression, and isolation . . . as if I had to
change who I am to be accepted and that my voice did not matter.” Sylvia described
how humiliation by a particular member of staff on the basis of her name and gender
identity caused “emotional distress, depression, anxiety, [and] thoughts of harming
myself.” This pattern repeated, with another respondent, Samantha, experiencing
“severe depression, ideation of self-mutilation, temporary refusal to leave the housing
quarters in fear of further exacerbation of my dysphoria.”

Divinity wrote that “having a male name […] but living as the woman (trans) I am
and have been will cause me to be an open targe[t] for violence and harassment by the
public including being discriminated against for being transgender. A name change
would prevent 95% of that treatment which causes me depression and anxiety.”

The effects of TFC 45.103 actively deny a transgender person’s gender identity expression,
which inhumanely exacerbates the effects of gender dysphoria such as anxiety, depression,
and suicidal ideation. Stories such as Katherine’s, combined with indicators of mental and
emotional distress, paint a clear picture of systemic violations of the right to humane treatment.
Following the reasoning of the Ninth Circuit Court, which is in line with international theories
behind the right to humane treatment, TFC 45.103 is a law that harms the dignity and mental
integrity of transgender persons in violation of their Eighth Amendment rights and their right
to humane treatment.

F. RIGHT TO A REMEDY
The right to a remedy is a protected human right enshrined in numerous international treaties,
including the ICCPR, which states that every state party to the convention ensures that “any
person whose rights or freedoms as herein recognized are violated shall have an effective
remedy, notwithstanding that the violation has been committed by persons acting in an official
capacity…”126 The Human Rights Committee of the UN clarified that states have a duty to
take legislative and other measures to ensure and protect human rights, investigate human
rights violations, provide effective remedies against violations, bring perpetrators to justice, and

126 Art. 2(3a) of the ICCPR. a

50

N A M I N G A N D S H A M I N G Violations of the Human Rights of Transgender Persons with Felonies in Texas

provide reparation.127 The IACtHR held that States have a permanent, unconditional obligation
to investigate violations and bring perpetrators to justice.128 States are responsible for the
continued human rights violation of the right to a remedy of transgender incarcerated persons
for every moment it does not provide the effective remedy that protects their human rights.
Under international human rights law outlined in the Draft Articles on the Responsibility
of States for Internationally Wrongful Acts (“Draft Articles”), “a breach of international law by
a State entails its international responsibility.”129 TFC 45.103 and the effects of its enforcement
are conduct attributable to the United States for purposes of determining if the United States
has breached its obligations under international law.130 There are only six exceptions to a
breach, including necessity, which only applies if there the breach occurred to prevent an
objectively established, not merely apprehended as possible, grave and imminent peril to an
essential interest. “Moreover, the course of action taken must be the ‘only way’ available to
safeguard that interest.”131
As established thoroughly, TFC 45.103 violates the human rights of transgender persons.
The purpose of TFC 45.103, to protect public safety, violates international law as set forth
in treaties such as the Universal Declaration of Human Rights, the American Convention on
the Rights of Man, the ICCPR, and other sources of international law such as the IACtHR’s
Advisory Opinion and the United Nations Standard Minimum Rules for the Treatment of
Prisoners. The United States is responsible for the violations of the human rights of transgender
incarcerated persons due to TFC 45.103, and no exceptions to its responsibility under the
Draft Articles apply. TFC 45.103’s designated purpose of safeguarding public safety does not
rise to a standard of an objectively established grave and imminent peril, and as other states
like New York demonstratively show, the restriction is not the only course of action available
to safeguard that interest. The United States and Texas must provide an effective remedy
to transgender incarcerated persons whose human rights, including the right to a name,
the right to equality and non-discrimination, and the right to humane treatment, have been
violated, starting with the immediate repeal or amendment of TFC 45.103 in alignment with
human rights law.

127 Human Rights Committee, General Comment No. 31 on the Nature of the General Legal Obligation Imposed on States Parties
to the Covenant, United Nations, CCPR/C/74/CRP.4/Rev.6 (2004).
128 Garrido y Baigorria v Argentina (Reparations), Judgment of 27 August 1998, I/ACtHR, , Series C No. 39, para 72.
129 Int’l Law Comm’n, Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, U.N.
Supplement No. 10 A/56/10, at 32 (2001).
130 Id. at 39.
131 Id. at 83.

51

The right to a remedy is a vital human right that would lead
to the enforcement of other human rights. In respect to the
right to a remedy, fifty-three transgender persons answering our
supplementary survey stated that reporting a grievance involving
the discriminatory use of a legal name resulted in no satisfactory
remedy. The TDCJ’s Offender Grievance Pamphlet states that:
Agency policy prohibits retaliation against an offender for filing a
grievance. Allegations of this nature are forwarded to the Office of the
Inspector General for action that could result in the termination of the
offending employee.132

Yet, the responses received showed that retaliation from staff is
a widespread problem which has deterred transgender women from
making a verbal or written complaint in the first place, let alone
complaints about the denial of the human rights which protect a

Texas
Department
of
Criminal
Justice

*Offender Grievance
Program
Administrative Review
&
Risk Management Division

Available from www.tdcj.
texas.gov/publications/
index.html#arrm

transgender individual’s right to gender expression and the use of a
preferred name. The repeated violations of the right to a remedy demonstrates enforcement of
the prevention of degrading treatment despite the State’s internal policies and the assurances
made by the United States in front of the Committee Against Torture. Transgender incarcerated
persons wrote extensively about fear of retaliation from staff as a deterrent to successfully
reporting discriminatory treatment. This fear is not irrational. The TDCJ itself notes that
unfounded allegations of sexual assault can and do result in “disciplinary penalties.” This
means that incarcerated people risk sanctioned retaliation for filing a complaint should the
TDCJ determine the complaint was false.133
Transgender incarcerated persons had already appealed to Texas through the TDCJ for
their human rights to be protected by permitting the use of their preferred name and not their
legal name.

132 Texas Department of Criminal Justice Offender Grievance Program, Administrative Review & Risk Management Division,
Grievance Procedure (2015).
133 Texas Department of Criminal Justice. PREA Ombudsman, Office of the Inspector General: Safe Prisons/Prison Rape
Elimination Act (PREA), November 2019, 27.

52

N A M I N G A N D S H A M I N G Violations of the Human Rights of Transgender Persons with Felonies in Texas

Katerina filed multiple complaints to the TDCJ asking for recognition of her gender
identity through the use of her preferred name, as is her right under Rule 7 of the
Mandela Rules and permission for the TDCJ to do under BOP guidance. The TDCJ
denied her request, citing that Katerina is a “male, not a woman, and [she’s] on a male
unit. This caused me so much depression,” Katerina wrote, “that I’ve [attempted] suicide
more than once because of this issue.” Katerina had been in the process of filing for
a name change before her arrest. Another transgender incarcerated person, Kathleen,
noted that “The only thing that is going to stop [being called a non-gender congruent
legal name] is for me to get a legal name change on my documents in the TDCJ.”
Transgender incarcerated persons generally reported that nothing happened if they
sought redress for discriminatory incidents involving the use of their legal name if they
were able to make a complaint at all. Victoria wrote that “I’ve tried to use my preferred
name on [g]rievances, I-60s [complaints], mail, etc. etc. But the [TDCJ] administration
will not accept me using my preferred name. They always deny anything with my
preferred name on it.” Many of those who reported that nothing came of their complaints
about negative treatment alluded to being told that they could not substantiate their
claims – for example, that an officer said the procedure was followed and there was
no further evidence, or that although there should have been video evidence of an
incident, “even camera footage is only for officers,” as Megan wrote.

Were staff to understand the right to a name, the right to equality and non-discrimination,
and the right to humane treatment, staff would be better equipped to recognize violations of
these rights and therefore provide the remedy to which affected people are entitled. As it is,
TFC 45.103 affected persons like Katerina and Kathleen have no effective means of addressing
human rights violations and enacting their human rights like the right to a name. So long as
TFC 45.103 remains as is, the United States and Texas have not provided people like Katerina
with an effective remedy to their complaint.

53

VII. Conclusion

T

FC 45.103

violates

international human rights law by preventing incarcerated

transgender persons from changing their name while incarcerated or until two
years from the date of the receipt of discharge or completion of community
supervision or juvenile probation. The international human rights that are
violated by this law are: the right of persons deprived of liberty; the right to

a name; the right to freedom of expression; the right to equality and non-discrimination;
the right to humane treatment; and the right to a remedy. This law was enacted in 1991,
SB 334, and amended in 2019, HB 2623, by the Texas Legislature but continues to harm
incarcerated transgender persons daily. Incarcerated transgender persons suffer unique and
additional challenges within the TDCJ, comparatively to cisgender incarcerated persons, and
these unique and additional challenges are exacerbated by the implementation of TFC 45.103.

54

N A M I N G A N D S H A M I N G Violations of the Human Rights of Transgender Persons with Felonies in Texas

VIII. Recommendations

T

he I nter -A merican

C ommission on Human Rights the IACHR “urges States to

adopt comprehensive measures, in legislation and public policies, to effectively
guarantee the right to the gender identity of all persons, as a sine qua non condition
for the free development of their personality in all fundamental areas of their life
plan.”134 More specifically, the IACHR has recommended that all States “adopt

gender identity laws that recognize the right of trans persons to rectify their name and gender
component on birth certificates, identity documents, and other legal documents.”135 The IACHR
further recommends, “[g]ender identity laws should guarantee expeditious and simple procedures,
without the need for medical or psychological/psychiatric evaluations or certificates.”136
Emphasizing the importance of identity as a way to safeguard detainees who are transgender,
the United Nations Special Rapporteur notes, “equal recognition before the law is a basic
element in a well-functioning framework for protection from arbitrary arrest and detention,
torture and ill-treatment, as it is well established that in all situations of deprivation of liberty,
the proper identification of the individual is the first guarantee of State accountability.”137 TFC

45.103 is contrary to the corpus juris of international law contained in the treatises, decisions,
guidelines, and opinions of international and regional human rights instruments and bodies,
and its impact and harm to transgender incarcerated persons are undeniable.
Texas must comply with international law protecting the human rights of persons with
felony convictions who wish to change their legal name. Texas must take action by amending
or abolishing the Texas Family Code Section 45.103 in upcoming legislative sessions. In the
interim, Texas should provide administrative name recognition within the TDCJ and implement
more rigorous training for all state employees on human rights. Additionally, Texas needs to
provide further psychological and mental support to the individuals who have been harmed by
the implementation of the Texas Family Code Section 45.103.

134
135
136
137

IACHR, Recognition of the Rights of LGBTI Persons (December 7, 2018) ¶ 105.
Id. ¶ 267.
Id.
Report of the Independent Expert on Protection against violence and discrimination based on Sexual Orientation and gender
identity, A/73/152, p. 8.

 

 

Federal Prison Handbook - Side
CLN Subscribe Now Ad
Federal Prison Handbook - Side