Pence should clean up transgender mess he left behind in Indiana
© Greg Nash

On January 9, Mike PenceMichael (Mike) Richard PenceNew York Times defends reporter after Trump swipe: Her 'reporting has stood the test of time' Trump approves disaster declaration for Michigan despite sparring with state's governor Trump digs in on criticism of Democratic governors MORE left his position as governor of Indiana, yielding the office to Eric Holcomb, his duly elected successor. After only four years in office, Pence understandably left many items of business unfinished.

Now, as vice president of the United States, Pence can and should weigh in on one of those unresolved items. Doing so could help to demonstrate that he recognizes the necessity of limits to the anti-immigrant laws passed by states, and, not incidentally, to show that he is not opposed to at least some of the rights of transgender people.


An Indiana law enacted in 2010 — the same year as the more infamous Arizona anti-immigrant law, SB 1070 — is one of the most draconian anti-immigrant laws passed in the 21st century. Indiana’s 2010 House Bill 1047 strikes at the very heart of humanity and individuality by denying to all non-citizens the right to obtain a change of legal name. It is hard to imagine anything so definitive of personhood as the ability to change from the name provided at birth to one that better fits an individual’s sense of identity. It is a uniquely and centrally human right that Indiana denies to non-citizens.


Moreover, there is no subtlety to Indiana’s denial of this essential attribute of being human. The law prohibits all non-citizens — including asylees fleeing demonstrated persecution, refugees seeking freedom from the most dire of inhumane circumstances, and lawful permanent residents regardless of how long they have lived in the United States — from legally changing names.

There are, of course, significant benefits to immigrants from naturalization, including obtaining the right to vote, but such a basic element of personhood has never been one of the benefits or services contingent upon becoming a citizen. Since at least the end of the Civil War, our United States Constitution has considered all immigrants to be persons.

Denying personhood to an individual not yet eligible for naturalization, or to a permanent resident who chooses not to become a citizen, is peculiarly inconsistent with the modern Constitution, following the formal elimination of the abomination of slavery over 150 years ago.

Indiana’s inexplicable discrimination against all non-citizens has very real and dangerous effects for those deprived of personhood and forced to retain names that do not reflect their identity and autonomy. The courageous Indiana resident who has stepped forward to challenge the law — in a federal lawsuit filed by MALDEF and the Transgender Law Center — faces many such consequences as he is forced to carry and use identification documents that include the first name he was given at birth.

This Latino immigrant plaintiff, bravely taking on Indiana’s state government to strike down the unjust law, has had to endure confusion, ridicule, and ominous interrogation after presenting his identification to, among others, a restaurant server seeking proof of age, admitting nurses in an emergency room, and a police officer who pulled the plaintiff over for a minor traffic violation.

The danger in these interactions stems from the fact that the plaintiff is a transgender male, who lives his personal and professional life as a man, consistent with his sense of himself and his individual identity. His identification documents also note that his gender is male. However, because of the discriminatory Indiana law, he must carry and use identification documents that bear his conventionally female birth name.

As a result, he must frequently explain why his name is a female name, often having to identify himself as transgender in doing so. Of course, such a forced “outing” as transgender has potentially dire and dangerous consequences in light of the prejudice and discrimination, sometimes expressed through physical violence, that transgender people still face in our country.

In recent years, Pence has, with reason, faced question and criticism about his role in the passage of a state bill that would have sacrificed the rights of LGBT community members to the religious views of some businesspeople. While Pence did not sign Indiana’s discriminatory name-change law (his predecessor Mitch Daniels did), he has resisted the federal litigation filed to challenge it.

Whether or not he is aware of the legal tactics, pursued in his name, to delay and prevent a remedy for the plaintiff, Pence, as vice president, has an opportunity to urge his successor and the Indiana legislature to resolve the litigation and to repeal the offending law that denies all non-citizens the quintessentially human right to change names.

In doing so, the vice president could demonstrate a more humane posture toward both immigrant rights and LGBT rights, in contrast to the reputation that the Trump/Pence ticket acquired through its 2016 campaign and perpetuated through its initial changes in federal government websites.

Calling for repeal of the discriminatory Indiana name-change law would be a far more auspicious way to begin the administration.

Thomas A. Saenz is president and general counsel of MALDEF (Mexican American Legal Defense and Educational Fund), a national civil rights legal organization that works to promote the civil and constitutional rights of all Latinos living in the United States.

The views expressed by contributors are their own and are not the views of The Hill.