Name change: update and guidance

Something is stirring. Something is definitely stirring! After some weeks .. months of plugging away at this name change issue all on my own with the odd hint of support here and there (maybe the EHRC would be interested, maybe one or two backbench MP’s), I am starting to get mail.

A trickle for now. But still, a trickle is more than nothing and it underscores how this is not just a trans issue, but a full-on gender one.

Several people have also asked for a quick check guidance list: so here it is. If you are having probs with an organisation, it is worth making some or all of the following points.

But please: don’t pussyfoot. If you threaten an organisation with a referral to the EHRC or Information Commissioner, DO IT, Because all those who threaten and don’t follow thru, make organisations believe they can get away with continuing to patronise us.

What’ in a name?

First up, when it comes to name, there is no such thing as a “legal name” in the UK. There just isn’t. I have that on as good an authority as the Home Office’s in-house lawyers, who agreed to amend guidance on the direct.gov site in respect of getting a passport to remove this phrase.

Any organisation that tells you different needs to talk to its own lawyers.

Second, you are allowed to call yourself anything you want provided that you aren’t doing it for purposes of fraud or “pecuniary advantage”. Change your name and try to access someone else’s bank account – and that’s a crime. Change your name and that’s fine.

In fact, your “name” is what you are known as. Take a look around you. How many Ted’s and Bob’s and Liz’s and Trish’s do you know? Chances are that most of them were not registered under that name (as most parents prefer more trad versions like Edward, Robert, Elizabeth or Patricia). People are changing their names every day and in many many cases, organisations don’t give a damn about it – particularly when its their own staff doing it.

Discrimination – direct and indirect

Third, and most important, organisations insisting on you presenting documents before they will “allow” a name change on their system are almost certainly breaking the law. In two ways.

To begin with, this is almost certainly indirect discrimination as defined by the Equality Act 2010. Why so? Well, direct discrimination is easy: its where someone treats you differently in respect of a “protected characteristic” (like race, gender, orientation, etc.). “No blacks”, “no women” or “no poofs” are all direct discrimination and should be reported as such straight away to the EHRC.

Their site is here, and their helpline is 0845 604 6610 (England), 0845 604 5510 (Scotland) or 0845 604 8810 (Wales).

But name change is not “direct” discrimination. As many organisations argue: they apply the same condition to all, male female, trans or cis. So surely no prob?

Not quite. There is also a thing called indirect discrimination, which happens whenever a service gets offered on terms that will differentially affect an individual on grounds of protected characteristic. A height bar. A “no trousers” rule. A “no turbans” rule. All these are indirect discrimination.

And name change is indirect discrimination. Because in general, it is women and the transgendered who are more likely to hit this as an issue. It differentially affects women/trans by comparison to men/cis persons. Explain this politely to the organisation.

Security no excuse

The only get-out, organisationally, for such discrimination is where the discrimination is required by law (demand they specify the exact statute) or where it meets some operational need that cannot be met by some other means. Many will now start muttering “security” at you.

This is bollocks. Bear in mind that almost every such organisation will do almost everything else with you on the basis of a limited number of security questions (like date of birth and mother’s maiden name). Either they believe you are who you are, in which case, what’s the prob? Or they don’t – in which case, why are they even talking to you?

Most organisational security arrangements aren’t. They are there to backcover in case something goes wrong, but do very little to achieve real security.

Then refer the matter to the EHRC. Please refer the matter. At present the EHRC are wobbling on this issue: so if pressure builds up from more than a few complaints, I think they will eventually take action and firm up their guidance.

Oh. And be prepared to take the organisation to court. More details on how to do that in a later post. But its very simple, will cost you just £30: and will help focus the mind of the organisation concerned.

Data Protection to the rescue?

The other legal avenue is to use the Data Protection Act. Under the DPA, it is possible for an individual to lodge an “objection to processing” where such processing is causing unwarranted damage or distress, which organisations must respond to within 21 days.

This is not an avenue I have used directly, and feels like a weaker option than the Discrimination route, because according to the Information Commissioner’s site, the organisation has the get-out that they can continue the processing if it is “necessary”. Which takes us right back to the discrimination argument.

Those organisations interested in treating their customers sensitively will have stopped and thought about matters the moment you raised the issue. The rest will just dig their heels in and claim their processing and systems are necessary for…”legal” reasons, “security” reasons…or any one of half a dozen other reasons.

End of.

Call me!

If anyone wants any help in changing their name (and I am perfectly happy to help anyone, cis or trans), or dealing with a recalcitrant organisation, please just drop me a line.

jane
xx

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About janefae

On my way from here to there
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9 Responses to Name change: update and guidance

  1. Unfortunately when the Gender Recognition certificates turned up I found that a lot of companies and organisations started using these as an excuse to discriminate: “No GRC? No name change without it!” which was infuriating because before the GRC transpeople were passing under the radar at a lot of organisations and I remember having no issues with changing all the details (including gender marker) on driving licence, passport and even qualification certificates. The only organisation who I had a stumble with was my old University when trying to get my degree certificate reissued. The drones hadn’t a clue and tried to foil any attempt. However, writing to people rather further up the tree illicited not only a name change and new certificate, but a change in the University’s official policy on the subject. It pays to go straight to the top rather than get bogged down with people who would rather say “The computer says ‘no'” than actually help you.

    There is a lot of useful information with regard to name and records changes on the T-Vox site on the Legal issues page.

    • janefae says:

      I half agree ith this. That is: yes, go to the top, because you will often find that the frontline staff who deal with you initially won’t understand the real issues – but will infuriatingly repeat “its the law” or “its security”, even when it isn’t.

      But I checked out the T-Vox pages and no: they are simply wrong (and endorsing a wrong position in respect of the law here). I will have words with them!

      jane
      xx

      • Which bits are wrong? They’ve been online for quite a few years, so may simply have been eclipsed by changes in the law.

      • janefae says:

        Er, yes.

        First off, there is very little legal advice altogether. Second is the spin placed on what is there.

        The suggestion that “once a change of name has been made, it is illegal to use your former name” is seriously questionable and I am aware of no cases at all which tested this principle. Sure: I will check…but it is very bad to claim something as “illegal” when it is not.

        Neither deed poll nor stat dec are based on statute law: so for re-use of old name to be illegal would require there to be specific statute making it so. Not sure I’ve ever come across one.

        Second, it really ducks the question on GIC’s…suggesting maybe the entry was provided by someone from one of the GIC’s. The GIC’s don’t know their arse from their elbow on this issue. They, too, have been known to make various false claims about the law on name change. At base, though, they claim it boils down to the fact that GRP’s require a deed poll or stat dec for a GRC to be issued – so they are just helping you to smooth your path later in the transition process.

        They also seem to buy into the myth that there is such a thing as a legal name – I’ve heard them mention such – and that organisations NEED documentation. Which is highly questionable.

        As is the claim that without a deed poll there is little “tangible evidence” of a name change. Hmmmm. So my bank account, utility bills, electoral registration, credit reference, NHS card, library card, counsil tax bill and god knows how many other bits of paper carrying quite clearly the name “Jane Fae” are “intangible”, whilst somehow a deed poll (which can cost you all of £5 and half an hour’s work to obtain) is that bit more tangible? Sounds dumb to me.

        What I think is going on here is that name change is different for different countries. Much harder (and more official in the US). A lot of gender identity practice in the UK, courtesy of the Benjamin rules, follows practice in the US, where official change of name is part of the process.

        The GRP/GIC’s, either through ignorance or misunderstanding, have swallowed that principle lock, stock and barrel, and now try and make documentation a requirement. It has even been sugested that they would require it BEFORE they would treat, which is almost certainly unlawful and total bollocks if they attempted to do it.

        They also mutter about consistency of records, which is also bollocks.

        I have changed both my name and gender within the NHS without need for any documentation (beyond a letter to my pct telling them of same). So for all intents and purposes, the NHS recognise me as Jane Fae, female.

        I have asked ChX GIC whether “consistency” now means that they will use my NHS name – but no-one is prepared to answer that question…suggesting, yet again, that they know they are on a sticky wicket and are weaselling.

        jane
        xx

  2. It’s not really billed as ‘legal advice’ as it is a Wiki containing pages of information of relevence to transpeople ; like a specialised version of Wikipedia. T-Vox actually describes the pages as ‘Legal issues’.

    On the subject of ‘little tangible evidence’ without a deed poll, you have to remember that you usually need something to be able to change your bank records to be able to then have those bank records as proof to the GIC of a name change. When I went through transition (admitedly a while ago now) the GIC were keen to see a utility bill/bank statement as well as the deed poll/stat dec as proof that a person was living in role. It’s splitting hairs a little to fault the T-Vox site for making a statement which in reality most people will find holds somewhat true depending upon which organisations one is dealing with. In terms of law the saying “it isn’t what you know but what you can proove” most likely holds true.

    I think the issue about using your former name post name change is contained within the Statutary Declarations Act 1835 and indeed is within the standard texts of a stat dec or a deed poll. Whilst there is leeway in the fact that it isn’t possible to change all records instantly and I think the law would not be interested in the fact that it took me two years to get around to changing my AA membership details it would be interested in any active use of former and current names. There are many things that are against the law yet go unprosecuted because it isn’t really in the public’s interest to prosecute, and I suspect that use of two legal names is one such thing (unless an individual is actively using two names to perpetuate a fraud or deception).

    A lot of GICs have had a nasty habit of making things up as they go along. A lot of that has changed, but I remember the days of the infamous Newcastle GIC where if your face didn’t fit or you didn’t fit their stereotype for ‘happy-1950s-housewife-women’ you were strung along for years in a vacuum with little treatment and no access to support. I have quite a few friends who have suffered all sorts of delays and, in one case, a RLT that was strung out to over ten years for a string of vacuous excuses. Those that could went private, and one notorious GIC made a concerted effort to scupper that route with what amounted to a wrecking tactic through the GMC. Private wasn’t an option though for most people who could barely pay day to day living costs, let alone a five figure sum for treatment. I have joked that for the cost of transition and treatment, I could have been a homeowner without a mortgage by now.

    T-Vox wasn’t originally created or written by any GIC; it was put together by a group of transmen and women who thought that it would be a good idea to collate all the information that was scattered around the internet in one place where it would be an easy reference tool. I was one of those people, as I struggled initially in the late 1990s to find any information to help me transition (I failed that first time, because information just wasn’t easy for a teenager to get hold of). Later on whilst things got better, they were still less from ideal with many horror stories about what certain staff at certain GICs were up to (not to mention employers and businesses) when I tried transition a second time a few years later.

    As it is a Wiki, T-Vox relies on people adding in information, and a lot frequently do. Sadly it is the nature of transpeople that they transition, then disappear to get on with living their lives after they succeed, leaving very little way for those who follow to learn from their experiences. T-Vox tries, in part, to rectify some of that.

    • janefae says:

      Eeek! This is turning into something of a mammoth exchange, which may/may not be helpful.

      Hopefully, though, we aren’t too much at odds. I think you’ve been sucked into the bank mindset when you assert you need “something” to be able to change bank records. Er, yes: how about presenting your self? The silliness of the current situation is best seen in the case of a woman who has been a bank customer for 20 years, is known personally to a bank manager, and asks for her name to be changed on her account.

      Used to be fine. Nowadays, no can do…for no better reason than that the computer/system says no.

      Yet the bank manager KNOWS who she is. Also, she is able to access all her banking privileges on presentation of various proofs (which may include mother’s maiden name, security code, etc.) and without any other document. So security is presumably adequate for that purpose but…oh dear: not adequate for name change.

      If a system is set up in order to maintain aliases and/or name changes in the first place, this task should require no greater burden of proof than any other act. The fact that it does seems to me to derive from a number of features: tradition, blokes designing systems, a sense that “we’ve always done it this way, so why do it any different”. All of which are not good reasons for continuing something that is discriminatory in the first place.

      I have checked out the Statutory Declarations Act and stand by my original point: I don’t see that use of another name is actually proscribed in law, for the simple reason that there is no such thing as a legal name. In that sense, stat dec’s and deed polls that assert the renunication of a previous name seem to be at odds with the rest of UK law and are probably themselves trying to do something that ain’t supported either by statute or common law.

      On T-Vox, I don’t mean to be critical: used it myself in early days…and if you have a contact for an admin there, I will get in touch. However, I do think there is an issue over that page, as it is neither fish nor foul. It feels a little like legal advice though maybe that isn’t what it is intending to be.

      All the best,

      Jane
      xx

      p.s. agree on the GIC front. I will be paying for my own treatment…ouch!

  3. Hi.

    Jenny mentioned that she has been talking to you about your concerns re T-Vox. If you still need to contact an admin about the site, feel free to email admin@t-vox.org. I’m surprised we don’t have this information on a ‘contact us’ page (I must have overlooked it when the site was put together) but rest assured that it’s on my t0-do list.

    Kind regards,

    Zoë

    • janefae says:

      hi. thanks for this and i’ll get to you offline. sorry if it came across that is was being critical that wasn’t exactly the intent…and would love to chat and see if we can’t work tgether to improve stuff.

      thanks again,

      jane
      xx

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