Transgender inmates could seek name change

Transgender inmates in Delaware prisons could seek a name change based on their gender identity under new legislation backed by Delaware Gov. Jack Markell.

Under current law, inmates are allowed to change their names based only on religious beliefs.

The legislation, sponsored by New Castle Democratic Rep. James "J.J." Johnson, comes after a transgender inmate at Baylor Women's Correctional Institution was blocked by two Delaware courts in an attempt to change her name based on the fact that she identifies as a man.

In October, Lakisha Lavette Short, with help from the American Civil Liberties Union of Delaware, petitioned the Delaware Supreme Court to change her name to "Kai" based on gender identity.

Lawyers for Short, 34, who is serving a 55-year sentence as a habitual offender, argue that Delaware law violates the Equal Protection Clause of the U.S. Constitution by blocking transgender inmates from changing their names, while allowing name changes for religious reasons.

A lower court rejected that argument.

Johnson's legislation, which he filed at the request of Markell administration officials, could end the legal challenge.

"This makes sense to us," said Kathleen MacRae, executive director of the ACLU of Delaware. "A change by statute looks like is what's needed. It's a more direct route and it's much clearer for future reference. If something happens and the law does not pass, we will go back to court and pick up where we left off."

Johnson said "it's only fair" to allow inmates to change their names based on sincerely-held beliefs about their own gender, no matter the inmates' biological makeup. Eight other Democrats are listed as co-sponsors on Johnson's legislation.

A spokeswoman for Markell said "the governor supports the DOC's ongoing efforts to make reasonable accommodations for inmates in their care and this bill is in line with those efforts."

An earlier version of Johnson's legislation included a provision clarifying that the Department of Correction would not be required to change the place of incarceration or provide any special accommodations for transgender inmates granted a name change.

That provision was removed from the legislation before it was introduced. State officials believe current law prevents them from being compelled to change an inmate's place of incarceration or accommodations because of a name change based on gender identity.

"The Department of Correction provides a wide variety of treatment, counseling, programming, education, diet, housing, and other resources to inmates based on their needs, interests, and clinical assessments," said Jason Miller, a spokesman for the Department of Correction. "In Delaware, inmates' assignments to prison facilities are based on their biological anatomy."

Short was convicted in 2004 in Sussex County Superior Court of first-degree robbery, two weapons counts and aggravated menacing, and sentenced as a habitual offender. Short was convicted earlier, in 1998, for second-degree assault.

Last August, Delaware Superior Court Judge M. Jane Brady denied Short's petition, writing that no fundamental right exists to change one's name. Brady also found that Delaware had legitimate reasons to deny inmate name changes "because the state needs the ability to quickly and accurately identify people in prison and on parole."

Inmates seeking a name change based on their religious beliefs are "in a separate classification" because of their First Amendment right to religious freedom, Brady wrote in August.

The new legislation comes two years after Markell and Delaware lawmakers approved legislation adding gender identity to Delaware's anti-discrimination laws.

Contact Jonathan Starkey at (302) 983-6756, on Twitter @jwstarkey or at jstarkey@delawareonline.com.