Fair Courts Means Access for All
From Of Counsel Vol.4 No.1
By Christopher Clark, Senior Staff Attorney
Published 01/31/08
“I am not spending the county’s money on something like this.” That was the response Daunn Turner — a disabled, transgender woman — received from the Chief Judge in Will County, Illinois, when she requested a waiver of the court fees associated with changing her legal name from Donald to Daunn.
Under Illinois law, indigent individuals who cannot afford court fees are entitled to a waiver of the fees associated with legal proceedings. But Turner’s request for a waiver of fees was rejected because the judge determined that changing her legal name was unnecessary and unimportant.
Illinois law provides several straight forward procedures for circuit courts to use in processing requests for a waiver of court fees. The relevant statute states that an indigent person may file a request for a fee waiver at the time the underlying action is filed and that the underlying action may proceed while the waiver request is pending. If the waiver request is granted, the individual is released from any obligation to pay court fees. If the request is denied, the individual will be ordered to pay the court fees, either in a lump sum or in installment payments.
In Turner’s case, these procedures were not followed. First, the circuit clerk, in violation of Illinois law, refused to file Turner’s name change petition while her request for a fee waiver was pending. Then, when the judge denied her request for a fee waiver, he failed to issue a written order explaining the rationale for his decision as required by the statute. Instead, he simply communicated his denial in a telephone call and without the creation of a proper record. Without either an official case file or written order, Turner was left in legal limbo, with no ability either to proceed with a name change that she could not afford or to appeal the court’s decision.
That’s when Turner — who had been proceeding pro se — contacted Lambda Legal. Invoking the remedy of mandamus, we filed a motion with the Illinois Supreme Court requesting an order compelling the Will County Circuit Clerk to initiate a case file regarding Turner’s name change petition and requiring the Chief Judge to either grant the request for a fee waiver or to issue the required written order explaining the basis for his denial. If the Illinois Supreme Court grants this relief, Turner will be able either to obtain the fee waiver she needs to change her name or to initiate an appeal if her request for a waiver is improperly denied.
Turner’s case is not simply about enforcing the rules of civil procedure. Rather, it involves important issues concerning the right of all Illinois citizens to access the courts and judicial process. The ability to petition the court for a waiver of court fees is an important right because it opens up our judicial system to all members of our society, regardless of their socioeconomic status. Without this right, an entire segment of the population would be unable to initiate litigation, obtain a divorce, seek custody of their children or, as in Turner’s case, legally change their name.
An important part of protecting equal access to the courts for all is protecting the right to appeal. That is why Illinois judges are required to state, in writing, their reasons for denying access to the courts to anyone who claims to be indigent. The written order is an important safeguard for insuring equal access to the courts because it provides litigants with the ability to appeal an erroneous ruling on their requests for fee waivers.
One wonders if Turner would have had a different experience with our judicial system if she had been accompanied by an attorney when she traveled to the Will County courthouse to file her papers. Perhaps the proper procedures would have been followed — or perhaps an attorney would have filed a flurry of motions and pleadings alerting the circuit clerk and Chief Judge White of their respective statutory duties. Yet, the majority of those who are seeking to proceed in forma pauperis are unable to obtain such legal assistance. Indeed, the members of our society who are most vulnerable to bias and prejudice — including poor people, disabled people and transgender people should not be forced to hire attorneys or be experts in civil procedure to avail themselves of basic statutory provisions that are designed to protect them.
Turner’s case is also a stark reminder of the discrimination and hostility that is faced all too often by transgender individuals — even when attempting to do something as seemingly uncontroversial as changing their legal name. When he dismissed Turner’s petition to proceed in forma pauperis, the judge blithely commented that she could ask her friends to give her the money for her name change as a gift for her upcoming birthday. He also repeatedly refused her requests that he refer to her as “Daunn” or “Ms. Turner,” commenting: “You will be a man until you have THAT surgery.” This alarming dismissal of Turner’s desire to change her legal name raises serious concerns that the judge applied a heightened standard — unsupported by rule or law — based on Turner’s transgender identity.
Like many transgender individuals, Turner wants to change her legal name so she can have a name that, to her, better reflects her gender identity. She also hopes to avoid the harassment and discrimination that result when people learn that she has a legal name perceived to be at odds with her overall presentation. In addition, a legal name change will allow her to obtain legal documents in the name by which she is known in the community. Although these issues and concerns apparently seem trivial and unimportant to Will County court officials, they are extraordinarily important to Turner and others in the transgender community.
But, in the end, a consideration of Turner’s quest for a new legal name should have played no role in her ability to access the judicial process. Turner’s gender identity and the reasons why she wants to change her name are legally irrelevant to the question of whether she is indigent. They are equally irrelevant to the question of whether she is entitled to change her legal name. Indeed, in most states — including Illinois, name changes are permissible for any reason other than to perpetuate a fraud. Consistent with this principle, courts in several states have held that a transgender individual’s attempt to change his or her name should not be subjected to heightened scrutiny or additional restrictions. For example, a court should not inquire into whether an applicant has had sex reassignment surgery before granting a name change. Everyone is relatively free to change their legal name, and the process cannot be made more difficult or burdensome for transgender individuals.
