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What Would You Do? Answers To The Case Of The Transgender Signer

It’s important for Notaries to know their state’s specific ID laws when faced with challenging situations involving transgender signers

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.”

Colorado law requires the Notary to personally know a credible witness in order for him to identify the signer, so Colorado Notary Julie Brickley quickly ruled out that option. “If the name matches [on the documents and the ID], but the signer’s gender and appearance don't, I would ask to see additional ID,” says Brickley.

“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.

Kelle Clarke is a Contributing Editor with the National Notary Association.

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WWYD: The Case Of The Unidentifiable Signer-Your Answers

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WWYD Answer: The Case Of The Racial Slur

11 Comments

Add your comment

Catherine

30 Mar 2015

This didn't fully answer. At the end you say a transgender person must pursue a legal option. What does that look like? A legal aka document, perhaps? This is what we need to know.

Laurel

30 Mar 2015

We should definitely not discriminate against anyone on any basis, but asking for medical documentation to verify gender is invasive, rude and possibly illegal. This is definitely a tricky area particularly where it is not always easy to get legal documents changed, but would you ever do this in a situation where someone was not transgender?

Lynn FitzRandolph

01 Apr 2015

Some first names get used with either sex, so don't concern yourself with that unless either they don't look like the picture or the name on the document to be signed doesn't match the ID. I can always ask for a thumbprint for my notary log if something doesn't seem quite right, but questions about gender assignment or gender self-identification are improper. I am also in real estate, where this is a major "no-no."

Paul Crownover

03 Apr 2015

This is a great question to raise in order to help notaries do the right thing in this situation. The point was made in another comment in that it doesn't answer the question that was raised. It was simply stated that it is up to the Notary to follow their state's law. In all cases this is true and an ethical and law abiding Notary would do so. I'd like to see the NNA provide a link to each state's legal requirements for questions that are raised in these newsletters. If you are going to make an attempt at educating, then do so with providing the actual answers to each Notary.

Donna Garlock-Burdette

09 May 2016

I think it is the responsibility of the transgender person to update the picture on their id.

Micheal McLoughlin

09 May 2016

This question has a relatively simple answer in California by application of Civil Code § 1185 but one needs to fully think the problem through to realise it. The problem also affects people with intersex conditions as well as some but not all transgender people. Note: “Transgender” is an umbrella term for people who may be transsexual (psychological sex different from phenotype) or transsexed (genotype different from phenotype) or transvestite/cross-dresser. Gay, lesbian and bisexual people are sometimes considered transgender, on the theory they transcend gender norms for their characteristic sex. So, to coin a quasi-religious pun, the ‘T’ of ‘LGBT’ covers a multitude of sins. I should also note the problem at issue should only arise in one of two situations: 1) When a person transitioning from one legal sex to another has completed the physical process necessary for legal change of sex to be effective but has not yet obtained an Order Changing Name and Sex from a court of competent jurisdiction; or 2) When a person who is transitioning or *has* transitioned from one sex to another lives in one of the four states that does not permit change of characteristic sex on legal documents, namely Kansas, Idaho, Ohio, or Tennessee; and, thus, those states also may deny legal change of name based upon change of phenotypic sex. So, back to California and Civil Code § 1185, which requires that any identification presented by a signer or credible witness must be photo-bearing. There is no provision in § 1185 for a notary to supplement the photo ID with a court order, or a physician’s statement, or an amended birth certificate, or any other document. Even if there *were* (and this is why there isn’t), we still would not be able to tell whether the Carl Smith who claims he used to be Carol Smith is not, in fact, Roger Smith – the good-for-nothing brother of the real Carl formerly Carol Smith, whose photo ID, and legal and medical documents he “borrowed” to try to perpetrate a fraud by pretending, in effect, that he is his brother who used to be his sister, to whom he bears a strong resemblance in the photo. Oh, the tangled web we weave! In California, if the signer’s identity presented on the document does not match what’s presented on the photo ID, the photo ID is toast and the person simply does not have identification. (That is, *Carol* has identification; but *Carl* does not.) When a signer does not have identification that meets the requirements of § 1185, he or she can either obtain the required identification; or go back and have the documents re-drafted to reflect the current legal name and, if relevant, the current legal sex; or the signer can present two credible witnesses who know him or her personally (or one credible witness who is personally known to both the signer and the notary), and that will meet the requirements of § 1185 as long as the credible witnesses have acceptable photo identification. In general, unless a legal change of name is imminent, i.e., any required hearing has been held and it is just a matter of the order being issued, it is best to use the current legal name rather than a future name, or use the current legal name with an AKA or DBA, etc. Until the paperwork for the new legal name has actually been file and finalised, there is always the possibility that the judge might refuse the change of name, or that Carl might decide at the last minute to spell it ‘Karl’; or to go Dutch and spell it ‘Karel’; or go Irish and change ‘Carol’ to ‘Carroll’; or decide on a completely different name altogether. Or Carl/Karl/Karel/Carroll could be run over by a bus while he is still legally Carol, and the documents in the not-yet-legal name could seriously complicate the probate of his estate. But only a notary who is also an attorney could say this, because it could be considered unauthorised practice of law if a non-attorney notary said it to a client. (Or it might not be – but best to be careful, in my view.) What a notary *can* say without engaging in the unauthorised practice of law is something along the lines of, “I can’t notarise the document today because the identifying information on your picture ID does not match the identifying information on the document. If you don’t yet have photo ID in your new name and sex, you can bring two witnesses who know you personally and, as long as they have acceptable photo ID, they can identify you and then I can notarise the document.”

Josh Smith

10 May 2016

I think the easiest way to avoid confusion (at least until laws change) is to think what you would do if the person were not transgender. John Smith provides a photo ID, that looks absolutely nothing like John Smith who is in front of you. You cannot do the notary because you cannot positively Identify that person. After all your primary job as a notary is to ensure the Identity of the signer. Would the issue be any different if someone suffered a horrific facial injury and tried to present a photo ID of themselves before the disfiguring injury. Of course the witness options then would remain.

Rtia

16 May 2016

This is simple, people! If Name on the ID doesn't match name on the documents and/or the person Looks very different from the picture on their ID, you CAN'T NOTARIZE (unless using credible witnesses, where allowed. I'm in CA, so we can). It could be a sibling trying to forge documents and for a brother/sister this could be an outrageous but convenient excuse!!! It is that person's responsibility to get an ID that accurately Identifies him/her and any major changes to their persona. Ultimately, it's Our Job to make sure we Properly Identify the person signing, and if you're not sure, DON'T DO IT!

Bobbi Dalton

15 May 2017

Thank you to Michael McLoughlin for his very well written response. I agree with most here--the notary commission is a personal commission and although we do have bond, and some of us have errors and omissions insurance on top of that, the bottom line is, if you are not comfortable with the identity of the signer, refuse the notarization.

DeLois Johnson

17 May 2017

If you are not comfortable with the identity of the signer, it's simple...refuse to do notarization.

JoAnn Young

15 Jan 2018

I actually ran in to this same scenario about a year ago. You treat every signer the same. My signer actually handed me legal papers and a valid driver's license with the markers changed without me having to ask any questions.

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