BILL ANALYSIS Ó
AB 433
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ASSEMBLY THIRD READING
AB 433 (Bonnie Lowenthal)
As Amended March 29, 2011
Majority vote
JUDICIARY 7-3
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|Ayes:|Feuer, Atkins, Dickinson, | | |
| |Huber, Huffman, Monning, | | |
| |Wieckowski | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Wagner, Silva, Jones | | |
| | | | |
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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 :
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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.
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
court good reason not to change the birth certificate.
3)Provides for a single court petition to seek both a name
change and a new birth certificate.
FISCAL EFFECT : None
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
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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.
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. 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 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.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
FN: 0000139
AB 433
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