In re Anonymous

64 Misc. 2d 309, 314 N.Y.S.2d 668, 1970 N.Y. Misc. LEXIS 1412

• Court: Civil Court of the City of New York
• Decided: July 31, 1970
• Status: Published

Opinion

Martin Evans, J.

On this petition by a “ transsexual ’ ’ to change petitioner’s obviously male name to a female name, it appears that the petitioner, a member of the male sex, has undergone a series of medical treatments and operations which were designed to, and had the effect of changing the physical appearance of petitioner so that petitioner has, in general, the outward physical aspects usually attributed to a female. It is also shown in the affidavits supporting the application and the court is satisfied that petitioner, as a result of the surgical intervention, is and will continue to be unable to engage in male procreative activities.

What the true sex of a person is, commonly is easy of determination by the application of accepted tests based on visual inspection. Occasionally refinements of these tests are required, as has been reported to have occurred during the Olympic games when chromosome testing was applied to contestants' whose sex was disputed in contests reserved for women.

Hormone imbalance, psychiatric disturbances, and physical misdevelopment are among the factors which give rise to the cases of uncertainty of sexual definition in particular individuals. At the present stage of knowledge there appears to be no universally accepted test which may be applied to some of these uncertain cases but so long as society recognizes only the two disparate sexes, this condition will continue. (See Matter of Anonymous, 57 Misc 2d 813.)

The given name of a person is usually determined by the sex of a person, although there are exceptions to this such as the names Shirley, and Vivian which, although seemingly used to denote a female, are accepted as: occasionally applied to males.

In the instant application, petitioner appears to wish to use a female name, in part for the psychological gratification to be obtained by petitioner and also for the purpose of being accepted by society as a female.

The results1 which may be gained by societal acceptance, if such were to occur, are manifest. Among these are retirement at the age of 62 instead of age 65 under the rules and regulations of the Social Security Administration, improved ratings for life insurance purposes, the automatic right of exclusion from jury duty, possible marital benefits and rights of inheritance which differ, in some States- and1 nations1, according to the sex of the person. Penal violations, such as those set forth in the Penal Law (§§ 130:20,130:38) may be involved.

Whether petitioner has the right to acquire such privileges are matters not within the jurisdiction of this court and therefore may not be determined on this application.

Ordinarily, one has the right at common law to adopt or use any name, so long as fraud or prejudice to others is nonexistent.

It does not appear to the court that, so far as this applicant is concerned, any fraud or prejudice to' others will result.

Theref ore, the application is granted. However the order to be entered hereon will provide that the order shall not be used or relied upon by petitioner as any evidence or judicial determination that the sex of the petitioner has in fact been changed.