Although millions of Americans have been known by a middle name–including Presidents and First Ladies–and an estimated thirty million are known by a middle name today (See, “Notable Middle-Namers: United States” by category), the right to use a middle name as one’s legal identity has apparently become a casualty of the 9/11 terrorist attacks on the United States.
To combat terrorism and impede identity theft, Congress passed the Real ID Act of 2005 setting federal standards for government-issued identity documents and creating a system for linking databases and coordinating public information about individuals. One of the standards for identification documents is that they state “the person’s full legal name.” While this requirement is nothing new for such documents, what is new is a federal definition of legal name, established through policy adopted by the Social Security Administration (SSA) in May 2011, that explicitly excludes a middle name:
For SSA enumeration purposes, a legal name consists of a first name and last name (or surname). The legal name is the name used to sign legal documents, deeds, or contracts. We do not consider the middle name or suffix part of the legal name. —RM 10212.001 A; effective 05/02/2011
Before adopting this policy, the SSA, like the U.S. State Department, considered all forenames recorded on one’s birth certificate to be legal names. And like the State Department in issuing passports, it permitted applicants known by only one of those forenames to obtain a Social Security card with that forename stated in full and any others represented by initial or even omitted. Thus, Middle-Namers could receive both passports and Social Security cards under their middle names, with the first name either represented by initial or omitted.
Many people obtained Social Security cards under one of these options to officially establish their middle name as their legal identifying name. Although the SSA does not require that such cards now be replaced with ones conforming to the new policy (See, “SSA Policy” RM 10212.150, since 2005 it has refused to issue cards with these options.
The SSA now issues all Social Security cards under the applicant’s full first name, whether the person is known by that name or not. The middle name may be stated in full, represented by initial, or omitted entirely, according to the applicant’s choice. But even if the applicant chooses to have the middle name stated in full (an essential for persons known by that name), the SSA may still reduce it to an initial in benefit statements and other correspondence. And if a pre-2005 Social Security card shows the name as a first-name initial and full middle name, the SSA may address the person by two initials.
Formerly, any woman wanting to adopt her husband’s surname could keep her maiden name as a middle name. Now a woman known by her middle name is required to keep her unused first name and choose between keeping her maiden name or the forename by which she is known. Under the new rule, if retroactive, former First Lady Hillary Clinton could still be Hillary Rodham Clinton, but former First Lady Rosalyn Carter could not be Rosalyn Smith Carter. She would have to choose between Eleanor Smith Carter (Eleanor S. Carter) and Eleanor Rosalyn Carter (Eleanor R. Carter).
The effect of the SSA policy on passports is unclear. It is precisely because a passport is used as an identity document that the State Department has long held that the forename stated on the passport should be that which best identifies the person, whether first or middle. As examples of acceptable passport names, it says Francis Scott Fitzgerald may be identified as F. Scott Fitzgerald, Aloysisus Sherman Peabody may be identified as Sherman Peabody, and a married person who assumes a spouse’s surname may drop either a first or middle forename (See, “U.S. State Department Policy”). As of June 2012, these policies were still in effect.
The SSA’s decree creates many obstacles for those who go by a middle name, because while it says the policy is “for SSA enumeration purposes,” agencies that coordinate identification with the SSA must follow it, too.
The Internal Revenue Service (IRS) has long required people to file their income tax returns under the name stated on their Social Security cards. This requirement, in turn, determines the name used in employment and personnel records. Thus the new SSA policy forces Middle-Namers to be employed and pay taxes under names by which they are not known.
The Centers for Medicare and Medicaid Services (CMS) issues Medicare and Medicaid cards in a person’s SSA name, but reduces all middle names to initials even if the SSA record states them in full. If the SSA name is a first-name initial and full middle name (established prior to 2005 or by court order), the CMS still reduces the middle name to an initial and makes the person’s name two initials. And because the CMS requires that the name on claims, supplemental policies, and correspondence with the CMS match the name on the Medicare/Medicaid card, it forces these persons to use only initials in their medical treatment. A person known by his or her middle name may receive a Medicare card in that name only by obtaining a court order making it the first name and having the SSA change its records accordingly.
As a result of the Real ID act, state bureaus of motor vehicles must now issue driver’s licenses in a person’s SSA name, even if a person established the middle name (with or without a first-name initial) as his or her legal name under common law provisions recognized by the state’s courts and legislature. This requirement forces Middle-Namers who kept their full birth names on file at the SSA to now change their names on their driver’s licenses or forfeit the privilege of driving (Leone et al. v. Commissioner Indiana BMV, No. 48S02-0910-CV-505, 2010). The SSA will not change the name in its records to match the name on the driver’s license unless the applicant changes his/her name by court order.
Because the Real ID act requires a government-issued ID to open a bank account, the name on those accounts and related financial records must also bear the SSA name. Some states now require a government-issued ID in order to vote, and individuals may be denied the right to vote if a discrepancy exists between the name on the voter rolls and their SSA name.
Although the SSA policy implies that individuals must use their SSA name to sign legal documents, deeds, or contracts, courts have long ruled that persons may enter legal obligations under the name by which they are known (See, “Middle Name as Legal Name”).
There is no legal justification for the SSA’s policy. In what was perhaps the first court ruling to use the term legal name, Judge Charles L. Benedict of the United States Court of Appeals for the Second Circuit noted that no law or legal principle prevents a person from bearing several forenames and adopting any one of them as the one by which he will be known, and that when a person is known by one forename, it will be considered his legal identification regardless of its position in the order of forenames (US v. Winter, 13 Blatchf. 276, Fed. Case. No. 16, 743 ).
It is true that many American courts have ruled that a middle name is not part of one’s legal name, but these rulings have been based on a misinterpretation of English common law (See, English Common Law, The New York Rule). Furthermore, all such rulings were in cases where the name in question belonged to someone known by his or her first name, and the middle name was not essential to identification. In cases involving persons known by their middle name, courts have consistently upheld that name as their legal name (See, Middle Name as Legal Name).
The notion that people must be identified in legal matters by their first name is similar to the once-prevalent belief that married women were legally required to assume their husbands’ surname. Many election boards and motor vehicle bureaus formerly required married women to use their husband’s surname in registering to vote or drive, and some courts upheld those requirements. It took a series of court challenges in the 1970s to finally convince many legal authorities that a wife’s adoption of her husband’s surname was a matter of custom and tradition rather than law, and an exercise of her common-law right to change her name at will. And as one of the judges in the 1970s cases pointed out, custom and tradition of the majority do not operate as a rule of law binding upon all (Stuart v. Board of Elections,266 Md. 440, 1972).
Certainly the government has a compelling interest in insisting that citizens’ names appear consistently in public records. But consistency can be achieved without the government dictating which forename individuals use as their identifying name or forcing them to obtain an unwanted name change.
The only possible reason for the SSA to insist on identifying everyone by first names is to facilitate bureaucratic data retrieval. The SSA explains, “The use of the [first-name] initial presents problems with data matching exchanges between SSA and Federal and State governmental agencies and other authorized matching agreements” (RM 10212.165B). But courts have previously maintained that neither bureaucratic expediency, computers, nor record-keeping can overrule individual liberties and the right to establish one’s own name (Stuart v. Board of Elections, id.; In re Ferner, 685 A.2d 778, 81 [ N.J. Super. Ct. Law Div., 1996]). And data systems can certainly be designed to recognize identifying forenames other than the first.
Under common law principles, a person has the right to go by any of several names given at birth or even one not given at birth, and to use that name for all legal and practical purposes. In the United States legal system, unless a legislature enacts a statue specifically abrogating a common law right, that right stands. Yet the SSA has abolished a common law right through policy, not legislation, and maintains that it will recognize a common law right only if it has been incorporated into a state’s legal code (See, “SSA Policy, RM 10212.165 D, PR 02712.016).