“What’s in a name?” asked a devastated Juliet when her parents forbade her to love Romeo because his last name belonged to her family’s enemies. Now, that same question forms the basis of a Ninth Circuit decision that invalidated a parole condition prohibiting a transgender woman from using her preferred name.
The Ninth Circuit’s memorandum opinion, written by Judge Andrew Hurwitz and joined by Sixth Circuit Judge Eugene E. Siler, sitting by designation, partially granted the appeal of Todd Kamawu Paishon, a transgender defendant. At issue was the legality of one of her probation conditions that mandated that she not use the name “Nadine” even in a social setting, unless she had obtained permission from her probation officer. Paishon’s conviction on charges of possession of stolen mail was affirmed by the court on April 26, but her sentence was vacated and remanded “for the limited purposes of correcting Standard Condition 14” of her supervised release.
Prior to oral argument in March 2020, the government agreed to amend this special condition and remove the restriction. Condition 14 of Paishon’s probation had been imposed by District Judge Percy Anderson of the Central District of California, along with two years and three months in jail and a restitution requirement of over $9,000. Her three-year suspended release was subject to a condition that read, “The defendant shall not obtain or possess any driver’s license, Social Security number, birth certificate, passport or any other form of identification in any name, other than the defendant’s true legal name, nor shall the defendant use, any name other than his true legal name without the prior written approval of the Probation Officer.”
Condition 14 was reviewed by the Ninth Circuit under the conditions of supervised release required by 18 U.S.C. Section 3583(d). It states that valid conditions must be "(1) be reasonably related to the goals of deterrence, protection of the public, and/or defendant rehabilitation; (2) involve no greater deprivation of liberty than is reasonably necessary to achieve those goals; and (3) be consistent with any pertinent policy statements issued by the Sentencing Commission."
The imposition of Standard Condition 14 was neither consistent with the U.S. Code nor with existing case law. It deviated from the precedent set in United States v. Magdirila. That case said defendants “must notify specific persons and organizations of specific risks posed by the defendant to those persons and organizations, and must permit the probation officer to confirm the defendant’s compliance with such requirement and to make such notifications.”
A strongly worded concurrence by Judge Susan Collins first agreed that Paishon’s case, like Magdirila, failed to specify “what conduct the defendant needed to warn the public about. She asked the district court to “add specificity to the condition.” She then agreed that the district court abused its discretion by imposing Condition 14. This requirement, Collins said “effectively forbade” Paishon…from using “Nadine.” “There is no apparent penological need for extending the restriction to cover that specific usage,” she wrote, “and given Paishon's transgender status, the prohibition imposes a uniquely significant burden.”
While this court decision may lead to the elimination of this “uniquely significant burden,” the courts are not the only branch of government concerned about transgender rights in the criminal justice system. The Prison Policy Initiative, a nonprofit research organization, has concluded, “The data is clear: lesbian, gay, bisexual, transgender, and queer (LGBTQ) people are overrepresented at every stage of the criminal justice system, starting with juvenile justice system involvement. They are arrested, incarcerated, and subjected to community supervision at significantly higher rates than straight and cisgender people. This is especially true for trans people and queer women.”
Their report, Visualizing the unequal treatment of LGBTQ people in the criminal justice system, also points out that gay, lesbian, and bisexual people are overrepresented in the community supervision population, being “twice as likely to be lesbian, gay, or bisexual than people not on probation and parole.” In addition, the report points out a need for data on trans individuals in the criminal justice system. The Bureau of Justice Statistics estimates that there are over 3,200 transgender people in U.S. prisons who disproportionately suffer high rates of harassment and sexual assault.
With disturbing statistics like these, it is no wonder that the legislative branch of government is responding as well. On September 29, 2020, California Governor Gavin Newsom signed Senate Bill 132, The Transgender Respect, Agency and Dignity Act. The bill, written by Senator Scott Wiener, will support the California Department of Corrections and Rehabilitation (CDRC) as it moves to “provide a safe, humane, respectful and rehabilitative environment for the incarcerated transgender, non-binary and intersex community.”
“No one deserves to be treated disrespectfully because of their gender identity or expression,” CDCR Secretary Ralph Diaz said. Actions at all levels of government are clearly needed to remove the “uniquely significant burdens” and other forms of disrespect that transgender individuals face throughout a broken justice system. And perhaps soon they will, at a minimum, be allowed to choose and use their own names.
