CA’s Right To Privacy - a case of first impression

In what appears to be a case of first impression in the Golden State, on October 29, 2024, California’s Fifth Appellate District overturned a trial court’s ruling that denied Appellant’s request to seal the entire record of her name change and gender marker correction, finding that:

“The right to privacy “‘is not so much one of total secrecy as it is of the right to define one’s circle of intimacy—to choose who shall see beneath the quotidian mask. This right encompasses “informational privacy,” including “an interest in limiting disclosure of confidential information about bodily condition.” 

The court had to balance the First Amendment right of public access to court records against Appellant’s privacy and safety interests. Courts have generally disfavored concealing name changes because there are legitimate interests in keeping such applications public, as a bad actor might conceal their name for nefarious purposes like dodging creditors or commission of a crime.

Here, Appellant didn’t just change her name - she changed the record of her gender to confirm with new gender identity. Appellant was able to meet her burden under California Rule of Court 2.550(d) to show that her complete records must be sealed by providing evidence of not only harm done to other transgender people, but also evidence of harassment specifically directed at her, including social media posts that provided her personal information including home address, phone number, and former name, and that she had been outed at her place of employment and school. She ultimately left her job after her human resources department contacted her about the unwelcome disclosure, and shut down her social media accounts due to the toxic comments directed at her.

“In 2023, appellant filed an application to seal the record of her name and gender correction in its entirety. Appellant asserted the public availability of the information in the record revealed her medical history and had subjected her to discrimination, harassment and violence based on discovery of her transgender status. She argued sealing the entire record was imperative and justified for the protection of her privacy, safety, health, and well-being. She further argued prevention of any future harm to her overrides the public’s interest in access to public records, the sealing was narrowly tailored to appellant’s interests and there was no less restrictive alternative. 

In a declaration attached to her application, appellant stated she discovered her case record was publicly available online in 2022 when she searched her current name. The information online included appellant’s private medical and contact information as well as appellant’s former name. 

Appellant reported she was publicly “outed” on social media in 2023. Attached as an exhibit to her application was a social media post with a photograph of appellant at work disclosing her former name and referring to appellant as a “tranny.” The post included offensive comments about appellant and identified appellant’s current and former workplace, home address, and phone number. The post also divulged the last name of the physician who supported appellant’s name and gender correction petition. Appellant reported repeated harassment by anonymous social media users and submitted transphobic messages from these users as exhibits. She shut down all her social media accounts due to cyberbullying and repeated publishing of her private information. 

Appellant’s transgender identity was anonymously disclosed to her workplace and school. Her employer’s human resources department contacted her after the disclosure, which made appellant uncomfortable as she had not previously shared this information. Appellant ultimately left that job.” 

Although this is an important win for privacy interests, the court did narrowly tailor its order, stating that a “reasoned decision about sealing or unsealing records cannot be made without identifying and weighing the competing interests and concerns. Determining which records must be sealed entails not only identifying the specific information entitled to confidentiality and the nature of the harm threatened by disclosure, but also “identifying and accounting for countervailing considerations.” 

“We conclude whether a transgender person’s gender identity conforms with their assigned sex at birth is intimate personal information entitled to protection under the right to privacy. A transgender person thus has a privacy interest in concealing their transgender identity.” 

Read the full opinion here.