by Casey J. Bastian
On July 19, 2022, the U.S. District Court for the Eastern District of Pennsylvania granted the motion of a transgender federal prisoner and compelled the U.S. Bureau of Prisons (BOP) to change its records to reflect her legal name change. However, the Court stopped short of ordering the change to be made retroactively, finding no First Amendment right to such action.
In 2018, Roger Scott Wallach, then 38, was sentenced to a total of 20 years in federal prison for the manufacture and possession of child pornography, after he set up a hidden camera in his girlfriend’s bathroom to secretly record her 10- and 11-year-old daughters as they bathed and used the toilet.
While housed at the Federal Correctional Institution in Fairton, New Jersey, Wallach then petitioned the Superior Court of New Jersey Law Division for Cumberland County to have his name and gender changed. The state court granted the motion on September 9, 2021.
Subsequently, Rachel Marie Diamond (née Wallach) filed two pro se motions at the Court to compel BOP to recognize her new name and change its internal records to match. By BOP policy, the SENTRY system used to keep official records “must reflect the committed name, which may only be changed by an order from the Federal sentencing court,” the Court recalled. The system “includes fields for legal and true names.” In addition, BOP issued an updated Transgender Offender Manual that mandated staff shall use “gender-neutral communication with inmates (e.g., by the legal last name or ‘Inmate’ last name).” It is impermissible to “deliberately and repeatedly” misgender a prisoner.
The government raised several objections. First, it argued the change would impact the prisoner’s “duty to register as a sex offender.” While the Court concluded this is an important issue, registry laws require the name of sex offenders, “including any alias used by the individual” when registering.
The government also claimed the Court lacked jurisdiction, but those arguments failed as well. The court found BOP policy allows for changing its records to reflect a legally changed name. In fact, “internal regulations anticipate requests of this nature” in situations where the prisoner “has taken appropriate steps to execute a legal name change.”
As such, the Court said it was entitled to grant Diamond’s request. It also found that “accurate recordkeeping is of paramount importance” to the criminal justice system. Accordingly, BOP was ordered to change its records to reflect Diamond’s legally changed name. However, the Court said there is no First Amendment right to have the records “retroactively change[d],” so the motion was denied as to that request. The Court also ordered its personnel to reflect the change in the ECF system for future proceedings. See: United States v. Diamond, 2022 U.S. Dist. LEXIS 128445 (E.D. Pa.).
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