Filed Complaint: Doe v. Pence

John Doe, formerly known as Jane Doe, Plaintiff,
vs.
Michael Pence, in his official capacity as Governor of the State of Indiana; Gregory Zoeller, in his official capacity as Attorney General for the State of Indiana; and Myla A. Eldridge, in her official capacity as Marion County Clerk of the Court, Defendants.

Civil Action No. 1:16-cv-2431

1.

This lawsuit challenges Indiana Code Section 34-28-2-2.5(a)(5), which prohibits non-citizens from obtaining a change of legal name. See Indiana Code § 34-28-2-2.5(a)(5). That statute lists the required contents of a petition to the State circuit courts for a change of name. Subsection 5 requires “proof that the person is a United States citizen.” The law was signed by the Governor of the State of Indiana on March 17, 2010, and it went into effect on July 1, 2010.

2.

Plaintiff John Doe, whose legal name is Jane Doe, is a 31-year-old Latino who resides in Indiana. In August 2015, the United States granted Mr. Doe asylum from Mexico. Mr. Doe is transgender. Mr. Doe is being denied his need for a change of name from Jane Doe to John Doe. Mr. Doe is harmed by Indiana Code Section 34-28-2-2.5(a)(5) in that it prevents him from changing his name to match his gender identity. Plaintiff seeks a declaratory judgment that the provisions and enforcement by Defendants of Indiana Code Section 34-28-2-2.5(a)(5) violate his rights under the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution and the Free Speech Clause of the First Amendment to the United States Constitution. Plaintiffs also seeks an injunction permanently barring enforcement of Indiana Code Section 34-28-2-2.5(a)(5).

3.

Plaintiff brings this action under 42 U.S.C. §§ 1983 and 1988 to redress the deprivation under color of state law of rights secured by the United States Constitution.

4.

This Court has original jurisdiction over the subject matter of this action under 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution and laws of the United States.

5.

This Court has the authority to enter a declaratory judgment and to provide preliminary and permanent injunctive relief under Rules 57 and 65 of the Federal Rules of Civil Procedure §§ 2201 and 2202.

6.

This Court has personal jurisdiction over Defendants because they are domiciled in the State of Indiana and/or have otherwise made and established contacts with the State to permit the exercise of personal jurisdiction over them.

7.

Venue is proper in this district under 28 U.S.C. § 1391(b)(1) because all Defendants reside within the State of Indiana. Venue is also proper in this Court under 28 U.S.C. §1391(b)(2) because a substantial part of the events giving rise to the claim occurred, and will occur, in this district.

8.

Plaintiff John Doe (“Mr. Doe”), whose legal name is Jane Doe, is a 31-year-old
transgender Latino man who resides in Marion County, Indiana.

9.

Defendant Michael Pence is sued in his official capacity as the Governor of the State of Indiana. In his official capacity, the Governor is the executive officer of the State of Indiana. It is his responsibility to ensure that the laws of the State are properly enforced. The Governor maintains an office in Indianapolis. Pence is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this Complaint.

10.

Defendant Gregory Zoeller is sued in his official capacity as the Attorney General of the State of Indiana. In his official capacity, the Attorney General is the chief legal officer of the State of Indiana. It is his duty to see that the laws of the State are uniformly and adequately enforced. The Attorney General maintains an office in Indianapolis. Zoeller is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this Complaint.

11.

Defendant Myla A. Eldridge is the Marion County Clerk of the Court. In her official capacity, the Clerk is responsible for processing name-change requests and maintaining vital records for identification. The Clerk maintains an office in Indianapolis. Eldridge is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this Complaint

12.

Sex is a characteristic that is made up of multiple factors, including hormones, external physical features, internal reproductive organs, chromosomes, and gender identity. Gender identity—a person’s deeply felt understanding of their own gender—is the determining factor of a person’s sex.

13.

A person’s gender identity may be different from or the same as the person’s sex assigned at birth. Gender identity is often established as early as two or three years of age, though a person’s recognition of their gender identity can emerge at any time. There is a medical consensus that efforts to change a person’s gender identity are ineffective, unethical, and harmful.

14.

The phrase “sex assigned at birth” refers to the sex designation recorded on an infant’s birth certificate. For most people, gender identity aligns with the person’s sex assigned at birth, a determination generally based solely on the appearance of a baby’s external genitalia at birth. For transgender people, however, the gender they were assumed to be at birth does not align with their gender identity. For example, a transgender man is a person who was assigned female at birth but is in fact male. A transgender woman is a person who was assumed to be male at birth but is in fact female.

15.

Gender Dysphoria is a condition recognized by the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, 5th edition (“DSM-5”). It refers to clinically significant distress that can result when a person’s gender identity differs from the person’s assumed gender at birth. If left untreated, Gender Dysphoria may result in profound psychological distress, anxiety, depression, and even self-harm or suicidal ideation.

16.

Treatment for Gender Dysphoria is usually undertaken following the Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People (“Standards of Care”), published by the World Professional Association for Transgender Health (“WPATH”) since 1980. WPATH is an international, multidisciplinary, professional association of medical providers, mental health providers, researchers, and others, with a mission of promoting evidence-based care and research for transgender health, including the treatment of Gender Dysphoria. WPATH published the seventh and most recent edition of the Standards of Care in 2011.

17.

Consistent with the WPATH Standards of Care, treatment for Gender Dysphoria consists of the person “transitioning” to living and being accepted by others as the sex corresponding to the person’s gender identity. Transition can include social, legal, and medical aspects. A social transition, though specific to each person, typically includes adopting a new first name, using and asking others to use pronouns reflecting the individual’s true gender, wearing clothing typically associated with that gender, and using sex-specific facilities corresponding to that gender.

18.

A legal transition includes the steps a person may take to change the name and/or gender marker on legal documents and forms of identification, such as obtaining a court-ordered name change and changing the name on one’s driver’s license or state ID, birth certificate, passport, and school or employment records.

19.

Medical treatments, such as hormone therapy or surgical procedures, may also be undertaken to facilitate transition and alleviate dysphoria. Medical treatments are not necessary or appropriate in all cases.

20.

For a transgender person, a change of name is in many cases a necessary part of treatment for Gender Dysphoria, and vital to their health and wellbeing. Being identified by a name traditionally associated with the person’s sex assigned at birth can be a cause of deep distress and dysphoria. Being able to exclusively use a name consistent with the person’s gender identity often significantly relieves that distress.

21.

Transgender people face a heightened risk of discrimination, harassment, and violence when their transgender status is known to others. Being referred to by or having to identify oneself by a name traditionally associated with the person’s sex assigned at birth, rather than with the person’s lived gender, can “out” a transgender person to others, revealing their private medical information and putting them at serious risk of harm. Adopting and exclusively using a name that is consistent with a person’s gender identity, on the other hand, can allow a transgender person to maintain the privacy of their transgender status.

22.

Plaintiff John Doe is a Mexican citizen who has lived in the United States for the last 26 years. He is 31 years old.

23.

His family moved from Mexico to Indiana in 1990. He has lived in Indiana ever since.

24.

Mr. Doe currently resides in Marion County, Indiana.

25.

In December 2013, the Department of Homeland Security granted Mr. Doe Deferred Action for Early Childhood Arrivals (“DACA”) status.

26.

Mr. Doe married his wife, a U.S. citizen, in July 2014. His marriage license includes his legal name “Jane.” In July 2016, Mr. Doe’s wife gave birth to their son.

27.

In August 2015, the United States granted Mr. Doe asylum from Mexico, due to the risk that he would face persecution because he is transgender.

28.

Mr. Doe will apply for permanent residency in September 2016. After Mr. Doe becomes a permanent resident, he will need to wait at least three years before applying for naturalization.

29.

Mr. Doe is a man. He is also transgender. This means that his sex assigned at birth was female, but that designation does not accurately reflect his gender identity and his true sex, which is male.

30.

Mr. Doe’s legal name is “Jane.”

31.

Since a very young age, Mr. Doe was aware that he did not feel like a girl, but he did not know how to express how he felt.

32.

Mr. Doe ultimately acknowledged his male gender identity to himself in 2010. Mr. Doe has been in the continuous care of a licensed mental health clinician since 2010, who diagnosed Mr. Doe with Gender Dysphoria. She has helped guide his transition, following the WPATH Standards of Care. For Mr. Doe, an essential part of his treatment for Gender Dysphoria includes living in accordance with his gender identity in all respects, including the use of a male name and pronouns.

33.

In 2012, Mr. Doe explained to his family and friends that he is a man. Mr. Doe also began using “John” as his first name in 2012. His friends, family, and coworkers recognize him as a man, and they refer to him using his male name and male pronouns.

34.

Also consistent with the WPATH Standards of Care, Mr. Doe’s physician recommended and prescribed hormone treatment to treat his Gender Dysphoria. Mr. Doe has been on hormone therapy since 2011. Among other therapeutic benefits, the hormone treatment has deepened Mr. Doe’s voice, increased his growth of facial hair, and given him a more masculine appearance. This treatment helped alleviate the distress Mr. Doe experienced due to the discordance between his birth-assigned sex and his identity, and helped him to feel more comfortable with who he is.

35.

In 2012, Mr. Doe also underwent gender-affirming surgery.

36.

Mr. Doe is recognized as male on all official U.S. documents, including his Indiana state ID and his immigration documents, which show the gender marker “M.” However, his legal name remains Jane, a traditionally female name.

37.

Mr. Doe is not recognized by others as transgender unless he tells them, or unless they see his ID, with his legal name “Jane.”

38.

A change of legal name is required in order to change the name on an Indiana state ID or driver’s license and on federal immigration documents. Mr. Doe has tried to change his legal name from “Jane” to “John” so that he could update his name on his official documents. However, he is barred from petitioning to change his legal name because he is not a United States citizen.

39.

Mr. Doe would change his name in Indiana but for the statute prohibiting non-citizens from obtaining a change of legal name.

40.

Mr. Doe faces discrimination and harassment regularly because he cannot obtain a change of legal name and update his official documents. Mr. Doe’s inability to change his legal name and update his ID has caused him serious emotional distress and difficulty in his day-to-day activities every time he is required to present his government-issued ID.

41.

When others see Mr. Doe’s ID, they often suspect or realize that he is transgender. Others question whether the ID is a fake and suggest that he is committing fraud. To allay those accusations of fraud, Mr. Doe is often forced to disclose and explain his transgender status.

42.

Mr. Doe feels uncomfortable by the reactions of others when they see his ID. He fears harassment, arrest, or even violence at the hands of anyone who sees his ID.

43.

The constant threat of harassment due to the inconsistency between Mr. Doe’s name on his ID and his gender identity and expression makes him anxious and worried, even to leave his house.

44.

In 2011, Mr. Doe was pulled over for a minor traffic infraction. After providing the officer with his state-issued ID, the officer did not believe that it was Mr. Doe’s ID and repeatedly threatened to take him to jail because of this suspicion. That event was extremely frightening to Mr. Doe. He worried about what would happen to him if he were housed in a jail cell with other men. He also worried about other detainees finding out that he is transgender, and feared that he might get beaten up or even sexually assaulted. Mr. Doe then remembered that he had a letter from his therapist explaining his transgender status, and he showed it to the officer. The officer seemed to believe him, but said with disgust that Mr. Doe’s “weird situation” was annoying him. Because Mr. Doe did not have a valid license to drive at that time, he had to call his then-girlfriend (now his wife) to pick him up. When she arrived, the officer said to her, “You can take I-don’t-know-what-it-is with you.” Mr. Doe was humiliated to be dehumanized in such a way in front of his girlfriend.

45.

In 2013, Mr. Doe had to show his ID when he went to the emergency room because of pain and immobility in his neck and shoulder. The hospital staff was confused when they first saw his ID. Once they realized that Mr. Doe is transgender, though, their confusion turned to ridicule. Five of the nurses gathered around to laugh at Mr. Doe. Mr. Doe’s doctor was more professional, and he eventually received treatment. Mr. Doe’s wife was furious about the incident, but Mr. Doe was too embarrassed to raise the issue with hospital management. No one from the hospital ever apologized to Mr. Doe or his wife for the degrading treatment he received.

46.

In 2013, Mr. Doe attended a family birthday celebration at a restaurant. When he ordered a drink, the waiter asked to see his ID. The waiter laughed and he asked Mr. Doe why his ID said “Jane.” His family celebration was put on hold while Mr. Doe tried to convince the waiter that his ID was real. Mr. Doe asked the waiter why he was worried about Mr. Doe’s name when his age was all that mattered. The waiter said, “This is my restaurant, and I am worried about it!” As Mr. Doe sat silent, angry, and embarrassed, his friends and family were eventually able to convince the waiter that the ID was his and that he was over 21 years old.

47.

Mr. Doe is aware of the startling rates of violence against transgender people. While he has not yet been subject to physical attack, he lives in fear of it, waiting in dread for the day that something will happen to him.

48.

Being denied access to a change of legal name, and being called by the traditionally female name “Jane,” causes Mr. Doe significant psychological distress, anxiety, and dysphoria.

49.

On March 17, 2010, the Governor of the State of Indiana signed into law Public Law 61, effective July 1, 2010, which was codified, in part, as Indiana Code Section 34-28-2-2.5. The law amended the procedures to effect a change of legal name.

50.

Indiana Code Section 34-28-2-2.5(a) lists the required contents of a petition to the state circuit courts for a change of name for any person at least seventeen years of age. Subsection 5 requires “proof that the person is a United States citizen.”

51.

Indiana Code Section 34-28-2-2.5 was originally proposed as House Bill 1047 (“HB 1047”). According to the author of HB 1047, the goal of the legislation was to “help reduce the amount of identity theft from people who create new identities. It also would make is [sic] more difficult for illegal immigrants to create new identities, since the documentation to prove a person’s current identity would be much stricter.” (Press Release, Democratic Caucus, Cheatham Outlines Agenda for 2010 Legislative Session (Dec. 9, 2009)).

52.

Under Indiana Code Section 34-28-2-2.5(a), non-citizens are prohibited from obtaining changes of legal name in Indiana.

53.

According to the Indiana Bureau of Motor Vehicles (“BMV”), in order to change the name shown on a driver’s license or state ID, a person must provide documentation of the new name through a court order, a marriage license, a divorce decree, or an amended birth certificate. Therefore, an Indiana resident who cannot obtain a change of legal name cannot change the name on an Indiana driver’s license or state ID.

54.

In order to change the name on federal immigration-related documents and records, a person must provide documentation of a change of legal name. Therefore, an Indiana resident who cannot obtain a change of legal name cannot change the name on federal immigration-related documents or records.

55.

In order for a person in Indiana to change their name through a court order they must satisfy the requirements of Indiana Code Section 34-28-2-2.5(a)(5) and provide proof of citizenship.

56.

Mr. Doe is not a United States citizen and thus lacks any proof of citizenship. Indiana Code Section 34-28-2-2.5(a)(5) therefore prohibits Mr. Doe from obtaining a change of legal name, and therefore bars him from changing his name on his Indiana driver’s license, state ID, and federal immigration documents and records.

57.

Because Mr. Doe cannot petition for a court-ordered name change, he is forced to use the name “Jane” for official purposes and on official identification, including his Indiana state ID and his immigration records.

58.

Indiana Code Section 34-28-2-2.5 was first enacted as part of a measure targeting identity theft and with the specific purpose of making it “more difficult for illegal immigrants to create new identities.”

59.

Plaintiff re-alleges and incorporates by reference all previous allegations.

60.

Plaintiff states this cause of action against Defendants in their official capacities for purposes of seeking declaratory and injunctive relief, and challenges Indiana Code Section 34-28-2-2.5(a)(5) both facially and as applied to him.

61.

The Fourteenth Amendment to the United States Constitution, enforceable under 42 U.S.C. § 1983, provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.

62.

Indiana Code Section 34-28-2-2.5(a)(5) was enacted with the purpose and intent to discriminate against non-citizens on the basis of alienage.

63.

Indiana Code Section 34-28-2-2.5(a)(5) impermissibly and invidiously targets Plaintiff, a non-citizen with asylum status, by preventing him from changing his name.

64.

Indiana Code Section 34-28-2-2.5(a)(5) impermissibly restricts name-change proceedings to United States citizens. Non-naturalized persons are therefore unable to choose and change their legal name. Thus, Indiana Code Section 34-28-2-2.5(a)(5) treats similarly-situated people differently by providing access to name-change proceedings to citizens, but not to non-citizens. As a result, non-citizens are denied the same tangible benefits afforded to citizens. By purposefully denying name-change proceedings to non-citizens, Indiana Code Section 34-28-2-2.5(a)(5) discriminates against people on the basis of alienage.

65.

The House Sponsor of the act that would become Indiana Code Section 34-28-2-2.5 was clear that the purpose of the provision was to make it “more difficult for illegal immigrants to create new identities.” Indiana Code Section 34-28-2-2.5(a)(5) impermissibly discriminates against Plaintiff, a non-citizen, on the basis of alienage and deprives him of the equal protection of the laws within the meaning of the Fourteenth Amendment to the United States Constitution.

66.

As applied to Plaintiff, and all other transgender non-citizens in the state, the harm caused by Indiana Code Section 34-28-2-2.5(a)(5) is particularly pronounced. Obtaining a name-change is medically necessary to reduce Plaintiff’s Gender Dysphoria. Plaintiff cannot use his legal identification documents, such as his Indiana state-issued ID, without each time disclosing his former name and the sex assigned to him at birth, and thus revealing that he is transgender. As a transgender person, Plaintiff’s inability to change his name causes him severe and ongoing humiliation, emotional distress, pain, suffering, psychological harm, and stigma.

67.

Indiana Code Section 34-28-2-2.5(a)(5) is not narrowly tailored to advance a compelling government interest, nor is it rationally related to any legitimate government interest.

68.

Indiana Code Section 34-28-2-2.5(a)(5) violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

69.

Plaintiff re-alleges and incorporates by reference all previous allegations.

70.

The Due Process Clause of the Fourteenth Amendment protects a person’s right to make certain fundamental personal decisions without undue interference from the state.

71.

For a transgender person like Plaintiff, living in accordance with his true male sex and his male gender identity is a deeply personal decision, fundamental to his autonomy, dignity, and self-determination.

72.

For a transgender person like Plaintiff, living in accordance with his true male sex and his male gender identity is also essential to his medical treatment for Gender Dysphoria.

73.

Because Indiana Code Section 34-28-2-2.5(a)(5) prohibits Plaintiff from obtaining a change of legal name, Plaintiff’s ability to live in accordance with his true male sex and his male gender identity is deeply undermined.

74.

Because Plaintiff cannot obtain a change of legal name, his transgender status and the fact that he was assigned the female sex at birth becomes apparent whenever he must use his ID. That sends the message to Plaintiff and anyone who sees his ID that he is not “really” a man, but rather that he is in fact a woman named Jane and should be treated as such.

75.

Indiana Code Section 34-28-2-2.5(a)(5) violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution by depriving Plaintiff of his fundamental right to liberty.

76.

Plaintiff re-alleges and incorporates by reference all previous allegations.

77.

The Due Process Clause of the Fourteenth Amendment protects against unwanted disclosure of personal matters.

78.

Plaintiff’s transgender status and the sex he was assigned at birth constitute deeply personal information that he should not be forced to disclose against his will.

79.

Plaintiff, like all adults, is asked or required to show his ID regularly.

80.

Because of Indiana Code Section 34-28-2-2.5(a)(5), Plaintiff is required to use and show an ID bearing the name “Jane,” a traditionally feminine name.

81.

Plaintiff’s sex assigned at birth and his transgender status is revealed or implied every time he is forced to disclose that his legal name is “Jane.” Plaintiff is forced to disclose this deeply private information every time he shows his legal ID. The repeated forced disclosure of this information violates his right to privacy.

82.

Indiana Code Section 34-28-2-2.5(a)(5) violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution by depriving Plaintiff of his fundamental right to privacy with respect to personal information.

83.

Plaintiff re-alleges and incorporates by reference all previous allegations.

84.

Indiana Code Section 34-28-2-2.5(a)(5) violates the First Amendment right to freedom of speech by compelling speech from Plaintiff that betrays and falsely communicates the core of who he is.

85.

For transgender persons, communicating their name and expressing their gender is speech protected by the First Amendment. Plaintiff’s adoption of the traditionally masculine name “John” conveys the message that he is a man, an essential component of personal identity. Conversely, for Plaintiff to use the name “Jane” conveys the message that he is “really” a woman and should be treated as such.

86.

Federal law, Indiana law, and private actors require Mr. Doe to show official identification for a variety of purposes, including when requested by law enforcement.

87.

Because he cannot change the name on his identification documents, Mr. Doe is compelled to speak and display the name “Jane” each time he shows his ID, communicating a message that contradicts his deeply held personal knowledge and belief that he is a man.

88.

Each time Mr. Doe is compelled to speak and display the name “Jane,” he is disclosing his transgender status and the fact that he was assigned the female sex at birth, against his will. This disclosure subjects him to serious risk of discrimination and harassment—as he has already experienced—or violence.

89.

Requiring Mr. Doe to communicate his transgender status and endorse the message that he is “really” a woman serves no compelling or rational government interest.

90.

Indiana Code Section 34-28-2-2.5(a)(5) violates the Free Speech Clause of the First Amendment to the United States Constitution.

A.

Declaring that the provisions and enforcement by Defendants of Indiana Code Section 34-28-2-2.5(a)(5), and any other sources of Indiana law that exclude non-citizens from obtaining a change of legal name violate Plaintiff’s rights under the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution and the Free Speech Clauseof the First Amendment to the United States Constitution;

B.

Permanently enjoining enforcement by Defendants of Indiana Code Section 34-28-2-2.5(a)(5), and any other sources of Indiana law that exclude non-citizens from obtaining a change of legal name;

C.

Requiring Defendant Marion County Clerk of the Court in her official capacity to accept and process petitions for a change of name from non-citizens;

D.

Awarding Plaintiff his costs, expenses, and reasonable attorneys’ fees under 42 U.S.C. § 1988 and other applicable laws; and

E.

Granting such other relief as the Court deems just and proper.

F.

The declaratory and injunctive relief requested in this action is sought against each Defendant; each Defendant’s officers, employees, and agents; and against all persons acting in cooperation with any Defendant or under a Defendant’s supervision, direction, or control.