Updated 12-1-22. Properly identifying signers is the Notary’s most important responsibility, and as our recent “What Would You Do?” scenario involving a transgender signer illustrates, it can be challenging.
Even in a situation as unique as this one, you must apply notarial laws to the situation as best you can. Be aware of Notary best practices, and never illegally discriminate against signers based solely on gender or sexuality.
A 2011 National Transgender Discrimination Survey showed, in fact, that 44 percent of transgender people reported having been denied service, harassed or assaulted when presenting identity documents that did not match their gender presentation.
“Transgender Law Center receives hundreds of calls each year from folks who have experienced difficulty in legally changing their name and gender in California and have experienced discrimination and threats of violence due to identity documents that do not match,” says Masen Davis, Executive Director of the Transgender Law Center.
Here's What You Said: Handling an assignment with a transgender signer
California Notaries Colleen Cranor, Laurie Hill and Marilyn Owens suggest using credible witnesses to identify the signer, if that’s a legal option in your state. Others felt inclined to refuse the notarization altogether, due to an inability to properly identify the signer.
“If the person is not personally known to me, and I'm assuming he/she is not, the only legal thing I have to go by is proper identification,” says Maine Notary Sandra Lederman. “If I cannot identify this person by the ID he gave me, I would refuse to notarize the document.”
“In today's society, transgender is becoming more prevalent,” says Washington state Notary Adam Garibaldi, who recommended requesting medical documentation from the signer to help properly identify him or her. “It may not necessarily be accepted by all, but as Notaries we should not discriminate at any level, regardless of our personal convictions.”
Know your state’s Notary requirements
While some states are working to make it easier for transgender people to make legal name changes, the process can be long and cumbersome.
First, consider the document you’re notarizing: Many states do not require Notaries to identify signers when notarizing jurats; therefore, if you are being asked to execute a jurat, proceed with the notarization. While identifying the signer may not be required, do administer the oath or affirmation to the signer.
If, however, when you are required to verify the signer’s identity, your state’s specific ID laws still apply, but it’s up to you to know what your state requires.
If the ID does not satisfactorily describe and depict the person and you can’t reasonably verify identity, or you have a reasonable suspicion that the person is not who she says she is, then you cannot accept the ID. This determination is based on law regarding satisfactory evidence, not discrimination — which can cloud the issue. It becomes a judgment call for which you become legally responsible.
If your state law allows, you may request a more recent or alternative form of acceptable ID but if this isn’t possible, the law may offer the option of using one or two credible witnesses to identify the signer.
If you don’t have reasonable suspicions, and you have examined details of the photo ID — including the signer’s height, age, eye color and other physical characteristics — and you believe these elements corroborate the signer’s identity, then you may proceed with the notarization.
What Notaries should do when IDs and documents do not match
In cases in which the name on the ID and documents don’t match (say the signer’s ID says “John” whereas the documents read “Johanna”), you would have to refuse the notarization.
“Some documents are recorded either through the courts or through property agencies, thereby recording the property owner’s name in permanent files or financial records,” explains Patti Wulfestieg, NNA Compliance Specialist. “So, if ‘John’ is listed in that ID but ‘Johanna’ is on the documents, it’s difficult for a legal entity to determine — should there be a question later — that John and Johanna are, in fact, the same person.”
Though transgender is becoming a very common situation, the law ultimately determines a signer’s identity, and the signer must pursue legal options to be recognized as another gender.
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