Helping the Transgender Community Through The Name Change Project with Samantha Rothaus of Davis+Gilbert LLP

In this episode of On Record PR, Caitlan McCafferty goes on record with Samantha Rothaus, an associate at Davis+Gilbert LLP.

Davis+Gilbert LLP is a strategically focused, full-service mid-sized law firm of more than 130 lawyers. Founded over a century ago and located in New York City, the firm represents a wide array of clients – ranging from start-ups to some of the world’s largest public companies and financial institutions – throughout the United States and internationally. Davis+Gilbert is widely regarded as the #1 law firm for the marketing communications industry.

Davis+Gilbert is a partner law firm of the Transgender Legal Defense & Education Fund, also known as TLDEF, and the organization’s Name Change Project. It helps provides pro bono legal name change services to low-income transgender people, including asylum seekers, asylees, refugees, and immigrants, through partnerships with some of the nation’s most prestigious law firms and corporate law departments to assist in obtaining legal name changes.

Samantha joins us today to discuss this life-changing and life-saving pro bono work.

Tell us more about the Transgender Legal Defense & Education Fund.

They are an organization that exists specifically to help the transgender community with the legal process of having their name legally changed. And, it’s the same process that anybody would go through when they want to change their name, whether you’re getting married and you’re changing your last name, or if you have an adoption in your family and changing the name of a child. It’s the same process. And for the transgender community, this organization exists to assist them. Will help them through the process and get them the resources they need to have their chosen name match their legal documents.

It’s a beneficial resource, I think, for people in general and especially for this community. Because as I’ve learned by getting involved with this work, it’s not relatively as straightforward as it seems like it should be. And I think anyone who has gone through the process in their personal life has experience with how frustrating it can be to jump through all of the hoops, to get new names on your ID and your credit cards and your school ID if you’re in school, or what have you. You need a new birth certificate; you need a new social security card. It’s a whole slew of documents. And frankly, it’s overwhelming. So TLDEF, the Transgender Legal Defense & Education Fund, helps streamline the work for this community by providing resources and connecting with pro bono attorneys to help individuals walk through this process.

I think it’s an overwhelming process for anybody, for the transgender community, particularly the community that TLDEF serves, which is traditionally more of a low-income group of individuals with fewer resources and perhaps less stability in their lives. It can be very overwhelming and impossible to figure out how to navigate this on their own. It becomes essential for organizations like them and the attorneys that partner with them to help walk people through the process and hold their hand and take them along the way to achieve this significant change in their life.

Why is pro bono important to the legal profession?

We, as lawyers, have a particular set of skills and education. We were taught how to navigate a lot of these complicated legal systems. And we must use that knowledge and information to give back to the community. Lots of attorneys work in public service as their full-time profession. And many attorneys go to law school and decide to become attorneys because of a drive to help the public. But for many of us who work in private practice, you get caught up in your day-to-day, and you get focused on your daily tasks and the clients you represent.

Pro bono work is a perfect way to reconnect with maybe some of the motivating factors that drove you to go to law school in the first place and to sort of remember why. In my opinion, anyway, the legal profession is ultimately really rooted in public service to a community, even if that’s not really what your day-to-day is all about. Pro bono work is a fundamental way for lawyers to give back and to use the benefit of their specialized knowledge to help out people who might not otherwise have access to legal services.

Why is access to identity documents that correctly match a person’s name and gender are so important?

I think transgender people have a lot of particular challenges with how they present versus the way they identify, and your name has so much to do with that. And so when people identify as a particular gender and choose to present themselves to the world that way, if their name isn’t consistent with that, or if their legal name is inconsistent with that, it can create a lot of challenges in navigating many elements of the world. For example, you may have a hard time getting on an airplane, for instance, if you are presenting in one way but your ID documents suggest you’re of another gender.

Being able to have access to banks, anything that requires ID to navigate through that element of the world, whether it’s applying for an apartment and needing to provide ID, applying for a bank account, trying to have a business. These things can all be especially challenging if your ID documents don’t match how you present yourself to the world or how people know you. So it is imperative to enable people to get IDs consistent with how they are presenting to the world so that they’re not getting challenged by authority figures and holders of power and being kept out of these opportunities.

Caitlan: I think it’s essential, as we’re having this conversation, for all of our listeners to think about how much you go through your day and need those things. Because I believe they can become a very mundane part of your life, but when you think about applying for a job, how do I apply for an apartment? How do I travel in the world? How do I drive down the street? All those things. How do I even get medicine at a pharmacy, sometimes? It’s really about access and moving about the world freely where you don’t have those barriers to entry.

Samantha: We do take it for granted. Just as a quick personal anecdote, I’m in the process of applying for a new apartment myself, and I lost my ID. I lost my license for a couple of days. I left it someplace, and I was suddenly in a panic, realizing I don’t have my ID. What am I going to do when I have to fill out this application? Luckily, I have a passport, and it was fine. But for anybody who’s lost their ID.

It throws you in a panic when you don’t have those identity documents. So imagine that you have an ID, but it’s useless to you.

Suppose people won’t accept it or won’t believe that it’s you. I think it’s significant. It’s something that doesn’t feel significant on a day-to-day level, but it affects so much of their life for people for who this is an issue.

What are some of the critical milestones of the name change process for a transgender person?

Well, there are a few. And I should also say that the process has changed a bit because of COVID, and my personal experience with it has only been since COVID. So in some ways, it’s been more straightforward. In other ways, it’s been more challenging. But basically, I think the first step is beginning the process, which involves meeting with an attorney who will understand your story and prepare a petition for the name change, which is ultimately what you file with the court. And this is a legal process. It has to go through the court system, and a judge has to agree or sign off on the name change after reviewing all of the documentation.

There’s a lot of stuff that you need to compile. You need to present a lot of information to the court, including your reason for wanting the name change. Sometimes there are extenuating circumstances, like instances of harassment or abuse that you may have suffered because of your identity presentation versus your identity cards and such. That’s the first step is compiling and presenting all of that information. Once presented to the judge, the next big step is just having the judge weigh in and confirm whether or not they agree that you’ve met all of the legal requirements to have the name change.

In my experience, I think it’s a pretty low bar to have the judge agree. In the past, hearings where the lawyer and the petitioner must appear before the judge to explain why you’re there and why you’re seeking the name change. And then the process continues. During COVID, the hearing element has essentially gone away, which is part of why it’s a little bit easier now because judges are just granting these petitions more routinely, as long as there’s not an error or a problem with the application. But that’s not even the end of the story.

Once the judge grants the order allowing you to change your name, you need to get all the new ID cards, get all the new bank cards, and go through that process. You need that order to proceed, but there’s still that last element going to all the various agencies and submitting proof of the name change order to the organization and explaining that I need a new ID. Here’s a judge’s order allowing me to have a new name, and then getting all your new cards issued.

What are some of the challenges that are unique to the transgender community in that process?

An important thing is why I think lawyers get involved with TLDEF in particular, which most people who are changing their names after marriage or something don’t need to worry about so much. In the transgender community, because of discrimination against that community, fears of retribution or harassment, there is a driving need for more confidentiality within the process. Because typically, when you change your name, there’s a publication requirement, meaning that you submit your application to the court, then you have to take out an ad in a newspaper. And I think if you go to a classified section of any newspaper, you see ads like this all the time. It’s an announcement that a person is changing their name.

And that publication has to remain public for a specified period. Once that’s completed, the judge will order the name change and grant the name change. Because of concerns about retribution or harassment, when the public notice is seen that a person is changing their name to a different gender or people know you and now know that you’re getting your name changed, there could be fallout, a safety concern. Most transgender people will seek to have that publication requirement waived so that they don’t need to make a public announcement about it.

In addition, a lot of court records, generally speaking, are public record. And while the court that you file the name change applications in is not a federal court, it’s a state court, and they handle routine everyday matters like marriage and death notices. Those records are still publicly available for people who are seeking them. Since there’s so much personal information in a name-change application, like your address, your history, the reason why you’re looking to change your name, a lot of transgender people want the petition and the whole case file to be under seal so that it’s not publicly available. And so those two elements, waiving the publication requirement and filing under seal, both throw a little bit of a more complicating wrench into the process.

That’s why a lawyer needs to assist, prepare these documents, and complete the appropriate requests for all of these unique needs. There’s case law that supports all of this. There is also legislation that allows this, but you have to go through hoops to request it properly to get it. And so those elements, I think, can present a little bit more of a challenge, particularly if someone’s trying to do this on their own and doesn’t know the exact process or isn’t using the proper terminology. That’s a significant added value that the TLDEF program provides and that the pro bono attorneys who assist can help.

Are there any client stories that stand out to you?

A client that I have been working with, it’s been a very long process. And this process usually doesn’t take that long. It’s not that complicated once you have all the information. Some of the documents that you need involve a birth certificate. That can sometimes be a challenge to get an original or a copy, depending on the circumstances. Sometimes, it can take a little bit of time to compile everything and get everything you need. But with a client that I was working with, there were some additional challenges as well. This client had a criminal background, which is not uncommon in this community, mainly because of discrimination and harassment and things like that. This client had a criminal background but wasn’t exactly sure how these initial charges had wound up.

I think a lot of people with criminal history don’t necessarily know what their charges were or how they were resolved, or what their criminal record looks like. We had to get some additional assistance to run some criminal background checks and go to the other courts where those cases had been adjudicated to find out, was the case dismissed? Were the charges dropped? Was the sentence completed? What’s the status? Because this information needs to be disclosed on the name-change petition. And so that, with this particular client, took quite a long time because the information was kind of spotty. And this was all taking place during COVID, as well. Everything took longer to get information on. Ultimately, it wasn’t an issue. The client fully resolved these prior cases, and it didn’t disqualify the name change or anything like that. But it just made the process take a lot longer.

The same client, and I think this is probably true of many TLDEF clients who tend to be low-income or disadvantaged people. This client was living in a shelter, was maybe in between a couple of different locations. So it was a challenge even just communicating because sometimes the client would not respond for three or four months and then resurface, and then things would be flowing smoothly again. And then they would disappear again. I think for lawyers who provide these kinds of legal services, it’s vital to be aware of the personal challenges these clients face and have patience because it can be frustrating.

I think sometimes people expect all clients to be as responsive as all lawyers like to be. But when you’re dealing with different kinds of people, you have to take them where they are and understand that they may be going through things that are more immediate in their life than this legal process. Even though it is essential, they’re trying to get through day-to-day often. It was a little challenging, and it wound up taking quite a long time. But ultimately, we were successful in getting the order from the judge and getting everything we needed to have the records sealed and still getting copies of all the documents that we needed to present to all agencies to get the records new documentation.

What other pro bono work has Davis+Gilbert supported in the last year?

Davis+Gilbert has a long history of commitment to pro bono service. We partner with a lot of organizations throughout the city that provides pro bono legal services. Our firm, in particular, services the advertising industry primarily, so a lot of the attorneys at our firm have a creative side. We do a lot of work with Volunteer Lawyers for the Arts, and that’s been a long partnership that goes back well before COVID and all the racial justice activities of the last year and things like that. I do a lot of work with Volunteer Lawyers for the Arts, as well.

But over the last year, I would say we’ve gotten more involved with a greater variety of legal services organizations, not just TLDEF, but other organizations with the city and state bar associations. We’ve partnered with City Bar Justice Center to work on other civil rights issues and other LGBTQ issues. We’ve done some work with the New York Legal Assistance Group. Mainly, I think, during COVID, they became more involved in doing these mobile legal clinics where they would drive around in different locations and set up shop for a day in other neighborhoods to try to provide essential legal services for people. Landlord-tenant issues or powers of attorney kinds of documents, healthcare documents, and things like that.

We had a partnership through the New York State Bar Association to do some COVID-19 related work, but I’m honestly unsure if that COVID partnership is still around. I think it was enacted in the very early days of the pandemic. So things might have stabilized on that front a bit more. We also do a lot of partnerships with an organization called Pro Bono Partnership, which services more of a company kind of clientele. Instead of low-income individuals, this organization helps focus on nonprofits and small businesses located in the greater New York area that are companies. Still, they may not be able to afford typical full-service legal services. We have a variety of work.

Some of our attorneys have done work for years with the Safe Passage Project, an asylum organization that assists unaccompanied minors in the country seeking asylum. And I haven’t personally been involved in that. Still, I have many friends at the firm who have, and it seems to be incredibly challenging and especially rewarding because, similar to the TLDEF program, these can be life-and-death issues for people. You’re providing significant help in their life and allowing people to live in the country lawfully.

We do a variety of stuff, and it is gratifying to have many options available to give back. Some of these cases are a lot more involved than others. And I think having a bunch of different pro bono opportunities helps people to feel like they can give back in whatever ways they’re able to, without necessarily having to be an expert in immigration law, for example.

Do you have any advice for young lawyers in private practice that are interested in doing more pro bono work?

I think a lot of law firms in private practice do have pro bono partnerships. If so, it’s great to take advantage of those opportunities. It can feel daunting at times, I think, to figure out how to manage your daily workload and then also take on pro bono work. But many of these cases, over several months or a year, really don’t wind up taking that much time. And honestly, it’s an excellent use of your time. And a lot of law firms encourage it and will reward it or recognize it as significant work. And for people who are not at a law firm, I think it’s still imperative to try to find ways to give back on your own.

And I mentioned Volunteer Lawyers for the Arts. I’ve been involved with them in one way or another for many years since I was in law school. And there were times when I was not working in a firm, but I still would kind of check-in and see if there was stuff available. I think it’s perfect for young lawyers who may not have a job or maybe in between jobs or looking for a job. Doing pro bono work is an ideal way to get real-world experience and provide meaningful assistance to people while you’re building up your resume at the same time and making significant connections in the community.

There’s certainly not a lack of opportunity out there. There are so many organizations that exist to try to match lawyers with people in need. Any way to participate, even if it’s just once a year, is a perfect way to give back to the community, become part of the community, use your legal skills for good, and maybe make some new friends and connections in the community the process.

Learn More & Connect

Samantha Rothaus

Learn more about Samantha Rothaus

LinkedIn: https://www.linkedin.com/in/samrothaus/

Twitter: @SamRothaus

Davis+Gilbert LLP

Website: https://www.dglaw.com/

Pro Bono: https://www.dglaw.com/pro-bono.cfm

Transgender Legal Defense & Education Fund

Website: https://transgenderlegal.org/

Name Change Project: https://transgenderlegal.org/our-work/name-change-project/

Caitlan McCafferty