BILL ANALYSIS Ó
AB 433
Page 1
Date of Hearing: March 22, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 433 (Lowenthal) - As Introduced: February 14, 2011
As Proposed to be Amended
SUBJECT : BIRTH CERTIFICATES: GENDER TRANSITION
KEY ISSUE : SHOULD THE PROCESS OF OBTAINING A REVISED BIRTH
CERTIFICATE BE CLARIFIED FOR INDIVIDUALS WHO HAVE CLINICALLY
CHANGED THEIR GENDER?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
Existing law allows individuals born, and currently residing in
California, who have surgically changed their gender, to obtain
a new birth certificate from their county of residence, amended
to reflect their revised gender and any change of name.
However, there is no similar option for such individuals who,
while born in California, have since moved out of the state.
This bill, co-sponsored by the Conference of California Bar
Associations, Equality California and the Transgender Law
Center, permits individuals, who have undergone treatment for
gender transition to petition the court for a judgment
recognizing the change in gender and, if requested, to obtain a
new birth certificate from their county of birth reflecting
their change of gender and any name change. It also requires
that a physician's affidavit be accepted as conclusive proof of
gender change provided it contains specified language and is
signed under penalty of perjury. Finally, the bill clarifies
what the court must consider in determining whether to grant the
gender change petition.
The author contends that this bill is necessary because outdated
state policy creates confusion and unnecessary barriers and, as
a result, "it is common for transgender Californians to find
themselves with a passport with a corrected gender marker and a
state birth certificate with the wrong gender designation." The
author believes the bill will alleviate "the confusion, anxiety
and even danger that transgender people face when they have
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identity documents that do not reflect who they are."
Although similar legislation had been vetoed in the past as
unnecessary, based on an appellate case which found California's
current statutory scheme limiting revised birth certificates to
California residents only to be unconstitutional, there is no
opposition to this bill.
SUMMARY : Provides that an individual who has undergone an
appropriate treatment for purposes of gender transition may
petition to have the change in gender recognized and receive a
new birth certificate. Specifically , this bill:
1)Provides that whenever a person has undergone clinically
appropriate treatment for gender transition, that person may
file a petition in any superior court seeking a judgment
recognizing the change of gender. If requested, requires the
judgment to include an order for a new birth certificate.
2)Provides that the petition in #1 must be accompanied by an
affidavit of a physician attesting that the petitioner has
undergone clinically appropriate treatment for gender
transition. Requires that the physician's affidavit be
accepted as conclusive proof of gender change provided it
contains specified language and is signed under penalty of
perjury. Requires the court to grant the petition if the
court determines that the physician's affidavit shows that the
petitioner has undergone treatment for gender transition.
3)Allows a single petition to be used to change a petitioner's
name, recognize his or her change in gender and, if requested,
order issuance of a new birth certificate.
EXISTING LAW :
1)Provides that an individual who has undergone a sex change
operation may obtain, by court order from the court in the
county where the petitioner resides, a new birth certificate
reflecting the change of sex and any name change. (Health and
Safety Code Section 103425. Except as otherwise provided, all
further statutory references will be to that code.)
2)Requires the petition for change of sex to be accompanied by
an affidavit of a physician documenting the sex change.
Allows objections to be filed by any person who can show the
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court good reason not to change the birth certificate.
(Section 103430.)
3)Provides for a single court petition to seek both a name
change and a new birth certificate. (Section 103435.)
COMMENTS : In 1977, California became the first state in the
nation to permit an individual to obtain a new birth certificate
after undergoing a surgical sex change. In order to obtain the
new birth certificate, a transgender individual must first go to
court in his or her county of residence seeking a court order
for a new birth certificate reflecting the change of gender and
any change of name. That court process, however, requires that
the individual be a current resident of California. This bill
revises the process to petition the court for a judgment
recognizing that an individual has undergone a clinically
appropriate treatment for gender transition.
According to the author:
California has a law allowing transgender people to obtain
a court order recognizing a change of gender and an updated
birth certificate. This process was first established
decades ago and while it allows transgender people the
basic dignity of being able to get identity documents that
truly reflect who they are, it is procedurally challenging
to navigate. Despite the fact that case law has clarified
that gender change petitions can also be submitted in the
jurisdiction where a person was born, California law
requires petitions be submitted where a person resides.
Additionally, outdated state policy differs from
federal standards and creates confusion and
unnecessary barriers. Because of the differences
between state and federal policies, it is common for
transgender Californians to find themselves with a
passport with a corrected gender marker and a state
birth certificate with the wrong gender designation.
Equality California, one of the bill's co-sponsors, adds: "AB
433 alleviates the confusion, anxiety and even danger that
transgender people face when they have identity documents that
do not reflect who they are."
A recent appellate court decision found California's current
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statutory scheme, which limits revised birth certificates to
California residents only, to be unconstitutional . Recently, a
California appellate court determined that California's refusal
to issue new birth certificates to individuals who underwent
gender reassignment surgery and who, while born in California,
now reside elsewhere, violates the Privileges and Immunities
Clause of the United States Constitution. (Somers v. Superior
Court (2009) 172 Cal.App.4th 1407.) The court in that case held
that the requirement that a person seeking a new birth
certificate file a petition in his or her county of residence
effectively denies the right to an amended birth certificate to
California-born transgender individuals who now reside outside
of California. The court found that this restriction penalizes
individuals for moving outside of California and found no
compelling state interest in treating California-born
transgender individuals residing out of state differently from
California-born transgender individuals residing in California.
The court did not even find any rational basis for this
disparate treatment.
This Bill Streamlines the Petition Process : This bill seeks to
streamline the process and clarify that eligible petitioners can
submit a gender change petition in any jurisdiction in
California. This will allow those born in California, but now
living elsewhere to get a new California birth certificate.
Additionally, this bill requires that the physician's affidavit
be accepted as conclusive proof of gender change provided it
contains specified language and is signed under penalty of
perjury. The court is then required to grant the change of
gender petition, if the court determines that the physician's
affidavit shows that the petitioner has undergone treatment for
gender transition. These changes should simplify the process of
obtaining a judgment of gender transition and a new birth
certificate accurately reflecting the petitioner's gender.
Author's amendments provide judges with appropriate authority
and ensure that only petitioners with California birth
certificates contact the California State Registrar . In order
to ensure that judges have sufficient authority to review the
physician's affidavit and determine if it shows that a person
has undergone treatment for gender transition, the author has
agreed to amend the bill as follows:
On page 3, line 5, after "if" insert: the court determines that
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In addition, to ensure that new birth certificates are only
sought from the State Registrar for individuals who were born in
California, the author has agreed to make the following changes:
On page 3, line 9, after "certificate" insert: and if the
petitioner was born in this state
On page 3, line 35, after "certificate" insert: and if the
petitioner was born in this state
Prior Legislation : AB 1185 (Lieu, 2009), which was similar to
the current bill, was vetoed by Governor Schwarzenegger who
thought it was unnecessary. Similarly, AB 194 (Longville, 2001)
and AB 1851 (Longville, 2000), which were nearly identical to AB
1185, were vetoed by Governor Davis.
REGISTERED SUPPORT / OPPOSITION :
Support
Conference of California Bar Associations (co-sponsor)
Equality California (co-sponsor)
Transgender Law Center (co-sponsor)
Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334