Frequently I am asked whether a person who changes gender is allowed to establish a common law change of name. For a little background, common law refers to a foundation of legal findings or precedents which over time courts have come to recognized as the way things are. Within the United States law tends to be based on English Common Law. The only exception to this in the southern parishes in Louisiana, where laws are still based on Napoleonic Code or laws passed by legislation. When the average person thinks of common law, he or she might think about the right to enter marriage without formal proceedings, the right to be represented in criminal matters, and in this instance, the right to change one's name by simply using the name without the benefit of a court order.

Most attorneys will not jump at the opportunity to lose a potential client by advising whether common law name changes are applicable in your state. They will however typically point out the benefits of seeking a court ordered name change. These include receipt of a very official name change order signed by a judge and stamped by a clerk. If a transgender person has foresight, he or she can also request that the attorney include within the filing a request that the judge also change the gender marker. Having a letter from a doctor expressing the need for this change helps. Going to court also presents an opportunity to dress in your finest, and act in a professional capacity. Afterwards, the person is left with the satisfaction that no party can insist upon using the old name or refuse to change it on records.

The benefits of employing a common law change of name are also evident. Doing so can save expensive attorney and court fees, particularly should a clerk of court fail to provide easy-to-follow instructions on obtaining a court ordered name change by self-representation. Using the common law method, a person would not need to publish their new name within a local newspaper, and he or she would not need to make a court appearance. Where difficulties can occur, once a person has established a common law change of name, is typically when dealing with agencies or when changing out of state records where it is claimed that a court order is required. With persistence and the right document presentation, I know of no circumstances where a supervisor cannot approve record changes by recognizing that laws may differ in your state of residence.

I personally chose the common law change of name method years ago, probably because it is allowed in California and I found it easy to do. It has also never bothered me to put pressure on companies or agencies to respect my rights. However, convincing agencies that California law allows change of name by this method took a bit of extra effort and research. A person who wishes to prove to local and out of state agencies that a common law change of name is available in his or her state will likely want to proceed as I did. This involves doing a bit of research to see what local state laws say on the subject.

Finding laws in California was very easy. Doing so for other states should not be any more difficult. I first checked my state codes, here it is called California Code. I might have gone to a local law library, such as at city hall, and asked the librarian for help, however I preferred the comfort of my own desk so I did my research on the Internet. What I found was interesting, and is as follows:

CALIFORNIA CODES 2080-2082 Family Code 2082. Nothing in this code shall be construed to abrogate the common law right of any person to change one's name.

I found the preceding quotation under Family Code, because changing names most commonly happens during marriage. However, I did not desire to leave any stones unturned. With further research I found the following:

CALIFORNIA CODE OF CIVIL PROCEDURE 1275-1279.6 1279.5. (a) Except as provided in subdivision (b), (c), (d), or (e), nothing in this title shall be construed to abrogate the common law right of any person to change his or her name.

The preceding code seemed more complex. However, since I wasn't a prisoner or dealing with an adoption, as indicated in the exceptions, it again seemed clear that I had a common law right to change my name. I was free to refer to the California Codes whenever a local or out-of-state agency harassed me or refused to change my documentation.

I did find one point rather confusing during my research, and it is something I typically don't tell people who refuse to accommodate my name change. No place within California Code was I able to locate a passage that directly stated a law providing people the right to common law change of name. All of the preceding codes are inferences. I thought about that and realized that a direct passage was not necessary, because California Code is simply referring to a common law that pre-exists California law. In other words, the right to change one's name by usage precedes the creation of California law.

Frequently I am called upon to help resolve a dispute when some agency or entity refuses to accommodate a client's change of name. You can see from the preceding codes where I make the argument that if a married or divorcing woman is allowed to change her name at will, so too should a transgender person be allowed to transition and change name. Failure to accommodate a person's change of name in some areas may constitute discrimination and I politely indicate so, typically in a well-worded letter advising my client to contact an attorney if his or her name change is not accommodated.

A lot of people choose going to court in order to change their name. However, at least where common law change of name is possible just as many others choose this alternative route. Since I also had changed my name by court order, many years before transition, I personally did not find very much difference between the two methods. In both instances a person is required to contact agencies, present documentation, and ask that the change be reflected in records. I certainly would not change my name again, doing so is too much paperwork. Therefore, whichever method you choose, take the time to choose a name which truly reflects who you are, be consistent in its usage and enjoy!

Note. The preceding research information shall not be misconstrued as legal advice. Readers having legal questions are advised to contact an attorney.