Appeal from the ORDER September 19, 1996, in the Court of Common Pleas of CAMBRIA COUNTY, CIVIL, No. 1996-1512.
Appeal from the Order of the Court of Common Pleas of Cambria County, Civil Division at No. 1996-1512.
Before: Popovich, Saylor, and Olszewski, JJ. Opinion BY Olszewski, J. Concurring Statement BY Popovich, J. Dissenting Statement BY Saylor, J.
The opinion of the court was delivered by: Olszewski
OPINION BY OLSZEWSKI, J.:
As Tammy Wynette so aptly observed, sometimes it's hard to be a woman. This is especially true in the instant matter, which calls this Court to decide the case of Brian Harris, a thirty-nine-year-old man who, for the past twenty-two years, has lived as a woman. During this time, petitioner has consistently dressed and appeared in public as a female and has assumed the name "Lisa." In addition to his years of intensive psychological counseling, petitioner has undergone a number of medical procedures designed to make himself appear more feminine. Specifically, petitioner receives routine estrogen hormone therapy and has had permanent reconstructive facial surgeries as well as breast implants. Although petitioner desires to have the sex reassignment surgery which involves the removal of the male genitalia and the construction of female genitalia, financial constraints have thus far made reassignment unavailable. *fn1
On April 30, 1996, petitioner filed an unopposed petition for name change in accordance with the statutory requirements of 54 Pa.C.S.A. § 701 et seq. Pursuant to this petition, a hearing was held on September 16, 1996, before the Honorable Gerard Long of the Court of Common Pleas of Cambria County. The first witness to testify was Dr. Constance Saunders, petitioner's counselor of twenty years. Dr. Saunders testified that, in her expert medical opinion, petitioner's desire to live as a woman was permanent and unassailable. In support of this opinion, Dr. Saunders relied upon petitioner's long history of living as a woman and the extensive surgical measures he had undergone in order to present himself more convincingly as a female. Additionally, Dr. Saunders testified that petitioner's hormonal makeup was naturally more female than male.
When asked whether the name change would benefit petitioner, Dr. Saunders testified that, both professionally and personally, the name change would be beneficial. Because of petitioner's outwardly feminine appearance, Dr. Saunders testified, he oftentimes encounters problems when required to present official identification. That is, the disparity between petitioner's female appearance and the male name on his license leads to confrontations and allegations of deceit. In fact, Dr. Saunders regularly accompanies petitioner to appointments in order to vouch that petitioner is, in fact, a man. Personally, Dr. Saunders testified that allowance of the name change would provide petitioner with a degree of dignity that is presently lacking in his life and, additionally, would afford an affirmance of petitioner's belief that he is genetically and hormonally more female than male.
Following Dr. Saunders testimony, petitioner briefly testified. In essence, petitioner stated that his desire to have his name legally changed was twofold. First, petitioner stated that he has used the name "Lisa" socially for over twenty years and that his gender identification is completely female. Additionally, petitioner swore that he desired additional surgeries, including reassignment, but that at present the costs of such procedures were prohibitive. Secondly, petitioner stated that the change of name would result in less confusion for those people requesting official identification from him in addition to eliminating the personal embarrassment that petitioner feels when he is forced to adamantly and repeatedly aver that he is a man.
At the close of testimony, the court reserved its decision. By order dated September 19, 1996, the court denied the petition for change of name. Petitioner filed a notice of appeal on October 4, 1996. At the same time, petitioner filed a motion for reconsideration. On March 27, 1997, the court en banc denied the motion for reconsideration. In support of its September 19, 1996 order, the court en banc noted that, while no appellate court in Pennsylvania has previously addressed the issue of under what circumstances a transsexual may legally change his or her name, three of our courts of common pleas have spoken to the issue.
We now consider petitioner's appeal of the September 19, 1996 order. Preliminarily, we note that our Supreme Court long ago articulated the general standard to be applied to petitions requesting name changes. After determining that the petitioner has complied with the necessary statutory prerequisites, the court must hold a hearing after which the court may, at its discretion, grant or deny the petition. In making its determination, the court must act in such a way as to "comport with good sense, common decency and fairness to all concerned and to the public." Petition of Falcucci, 355 Pa. 588, 592, 50 A.2d 200, 202 (1947).
This standard has been applied with varying results by the three courts of common pleas which have addressed the instant issue. In re Dickinson, 4 D&C3d 678 (1978), involved the petition of a post-operative transsexual who wished to have her name legally changed from "Robert" to "Roberta." After two years of living as a female and receiving hormonal and psychological therapy, the petitioner underwent reassignment surgery. Following the surgery, the petitioner requested the legal name change. Holding that allowing the name change would "give legal effect to a fait accompli," the court granted the petition. Id. at 680 (citing M.T. v. J.T., 140 N.J. Super. 77, 90, 355 A.2d 204, 211 (1976)).
Conversely, In Re Dowdrick, 4 D&C3d 681 (1978), and In Re Richardson, 23 D&C3d 199 (1982), both involved the petitions of pre-operative transsexuals who, aside from receiving hormone and physiological treatments, had not undergone any permanent surgeries designed to alter the petitioners' appearances. Holding that "there is no guarantee that petitioner will have the surgical corrective sex change," the Dowdrick and Richardson courts denied the petitioners' name change requests. Dowdrick 4 D&C3d at 684. *fn2
After reviewing the above caselaw, the court in the instant matter held that "absent reassignment surgery it would not comport with common sense, common decency and fairness to all concerned, especially the public, to allow a change of name at this juncture." Slip-op, 3/27/97 at 4. In essence, the court interpreted the caselaw from its sister courts as creating a ...