Leveraging the History and Tradition Framework in Support of Transgender Americans’ Fundamental Right to Choose a Name

Abstract

Transgender people are facing waves of new legislation limiting their right to exist. However, there is an enormous amount of preexisting state laws which limit transgender people’s right to choose a gender affirming name on their own terms. Many current state laws severely restrict the ability of transgender people with prior felony convictions to change their name. These laws limit the ability of people with felony convictions from changing their name: based on the offense, pursuant a time limit, or force transgender people to out themselves. In this note I argue that these state-level laws place an unconstitutional barrier between transgender people and their right to name themselves. This harms the ability of transgender people to gain access to housing and employment and only increases the preexisting risks of being trans in America. This note aims to demonstrate how the framework for establishing due process rights as articulated in Dobbs v. Jackson Women's Health Org. by the United States Supreme Court might be leveraged to support transgender people who have been convicted of felonies. Under the history and traditions construction solidified by the court in Dobbs, individuals have a due process right to choose their name and laws that limit that right for people convicted of felonies unconstitutionally violate the due process rights of the citizens they impact. These laws vary in their requirements, and this article dives both into those laws and the history of regulations surrounding name changes in American history. This note contends that the right to choose one’s name is deeply rooted in America’s history and traditions and therefore these laws place unconstitutional restrictions upon Americans and their constitutional right to change their name.

Recommended Citation

Franke, Abigail (2025) "Leveraging the History and Tradition Framework in Support of Transgender Americans’ Fundamental Right to Choose a Name," Marquette Benefits and Social Welfare Law Review: Vol. 26: Iss. 2, Article 6.
Available at: https://scholarship.law.marquette.edu/benefits/vol26/iss2/6