BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 433 (Lowenthal)
As Amended March 29, 2011
Hearing Date: June 7, 2011
Fiscal: No
Urgency: No
EDO
SUBJECT
Birth Certificates: Issuance
DESCRIPTION
This bill would provide that an individual who has undergone a
clinically appropriate treatment for the purpose of gender
transition may file a petition with the superior court in any
county in California to seek a judgment recognizing the change
of gender, and if requested, the judgment must include an order
for a new birth certificate.
BACKGROUND
In 1977, California became the first state in the nation to
permit individuals 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. The process
cannot be used by those who were born in California, but now
live elsewhere. In 2009, a California appellate court held that
the residency requirement in Health and Safety Code Section
103425 violates the Privileges and Immunities Clause of the
United States Constitution. (Somers v. Superior Court (2009)
172 Cal.App.4th 1407.)
Similar legislation was introduced by Assembly Member Longville
in 2000 and 2001 (AB 1851, (2000) and AB 194 (2001)) which would
have allowed non-California residents who were born in
(more)
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California to petition their county of birth, rather than their
county of residence, to obtain a new birth certificate. Both AB
1851 and AB 194 were vetoed by the Governor.
AB 1185 (Lieu, 2009) would also have allowed an individual who
has undergone a sex change operation to obtain a new birth
certificate, by court order from his or her county of birth, in
addition to his or her county of residence. AB 1185 was vetoed
by the Governor. (See Comment 4 for the veto message.)
This bill, co-sponsored by Equality California, Transgender Law
Center and the Conference of California Bar Associations, would
authorize individuals who have undergone a clinically
appropriate treatment for the purpose of gender transition to
file a petition with the superior court in any California
county, rather than where the individual resides, to seek a
judgment recognizing the change of gender and if so requested to
be issued a new birth certificate and name change.
CHANGES TO EXISTING LAW
1.Existing law provides that an individual who has undergone an
operation to alter his or her sexual characteristics may
obtain, by court order, a new birth certificate reflecting the
change of sex and any name change. The request for a court
order must be filed in the county where the petitioner
resides. (Health & Saf. Code Sec. 103425.)
Existing case law provides that there is "no compelling state
interest in treating California-born transgender individuals
who reside out of state differently from California-born
transgender individuals who reside in California when members
of either class seek issuance of a new California birth
certificate under section 103425." Existing case law found
that this prohibition is a violation of the Privileges and
Immunities Clause of the United States Constitution. (Somers
v. Superior Court (2009) 172 Cal.App.4th 1407.)
This bill would authorize a person who has undergone a
clinically appropriate treatment for the purpose of gender
transition, to file a petition with any superior court in
California seeking a judgment recognizing the change of
gender.
This bill would provide that, if requested, the court's
judgment shall include an order that a new birth certificate
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be prepared reflecting the change in gender.
2.Existing law provides that a petition for a sex change
operation must be accompanied with an affidavit from a
physician documenting the sex change. (Health & Saf. Code Sec.
103430 (a).)
Existing law provides that the petition must be heard at a
time appointed by the court and that objections may be filed
with the court. Existing law provides that the court may
examine the petitioner on oath at the hearing and at the
conclusion of the hearing make an order to issue a new birth
certificate or dismiss the petition. (Health & Saf. Code Sec.
103430 (b).)
This bill would require the petition to be accompanied by an
affidavit of a physician attesting to the change of gender.
This bill would require that the physician's affidavit must be
accepted as conclusive proof of the gender change if the
petition includes specified language.
This bill would delete the ability for individuals to object
to the petition.
This bill would require the court to grant the petition at the
conclusion of the hearing if the court determines that the
physician's affidavit shows that the petitioner has undergone
a gender transition.
3.Existing law provides that in lieu of separate proceedings, a
single petition for a name change and new birth certificate
reflecting the change of gender may be filed with the superior
court. (Health & Saf. Code Sec. 103435.)
This bill would authorize a single petition to be filed with
the superior court for the name change and recognition of the
petitioner's gender change, and if requested to order that a
new birth certificate be issued.
COMMENT
1. Stated need for the bill
The author writes:
The Vital Statistics Modernization Act would alleviate the
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confusion, anxiety and even danger that transgender people
face when they have identity documents that do not reflect who
they are. ÝThis bill] would streamline current law and
clarify that eligible petitioners living or born in California
can submit a gender change petition in any jurisdiction in the
State of California. Neither of these are changes in the law;
it is simply a matter of making the process accessible to
those who need it. ÝThis bill] would also allow people who
were born or live in California to use a simplified process
that requires medical certification from an attending
physician that the individual has undergone treatment as
determined by their physician to correct identification
documents to reflect their gender. This change conforms
California's standards to the standards set by the federal
government.
Equality California and the Transgender Law Center, sponsors of
the bill, write, "Transgender people born or currently residing
in California can submit a petition for a court order
recognizing a change of gender and the issuance of a new birth
certificate. The current statute states that a gender change
petition must be submitted in the jurisdiction of a person's
place of residence, despite the fact that case law has clarified
that gender change petitions can also be submitted in the
jurisdiction where a person was born. Additionally, current law
conflicts with the medical standard applied by the US Passport
Agency and current medical understanding of what is required for
obtaining identity documents that reflect the appropriate
gender."
Also sponsoring the bill, the Conference of California Bar
Associations writes, "Current law imposes onerous, impractical
and confusing requirements on individuals bringing petitions for
a change of gender, such as specifically permitting objections
to be filed to a petition. ÝThis bill] recognizes that
appropriate legal identification is critical for transgender
people and streamlines current law to make it more accessible
and consistent with federal standards."
2. This bill would address the concerns raised in the Somers case
In 2009, a California appellate court held that the requirement
in Health and Safety Code Section 103425 that an individual who
has undergone a gender change and is seeking a new birth
certificate must file a petition in his or her county of
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residence violated the Privileges and Immunities Clause of the
United States Constitution. (Somers v. Superior Court (2009)
172 Cal.App.4th 1407.) The court found that California-born
transgender individuals residing outside of California were
effectively denied the right to issuance of a new birth
certificate. (Id. at 1414.) The court found that this
restriction penalizes individuals for moving outside of
California and found no compelling state interest, or rational
basis, in treating California-born transgender individuals
residing out of the state differently from California-born
transgender individuals residing in California. (Id. at 1415.)
The court in Somers, reviewed the legislative history for Health
and Safety Code Section 103425 which was originally enacted in
1977 and found that "There is no indication of the reason for
the added requirement of filing in the county of residence, and
no indication of any contemplation of, or reason for, treating
California-born transgender individuals who reside out of state
any differently from those who reside in California." (Id.) Thus
the court held "the requirement that a petitioner under section
103425 file the petition in the county of his or her residence
unconstitutionally denies California-born transgender
individuals residing outside California the same rights that
California-born transgender individuals residing in California
have under section 103425." (Id. at 1416.)
In support of this bill, the California National Organization
for Women (CA NOW) writes, "current California policy and
process on updating identification documents to reflect a change
of gender is out of step with federal policy, causing many
transgender Californians to have state and federal
identification documents that do not match. ÝThis bill] would
help to correct this by allowing eligible petitioners living or
born in California to submit a gender change petition in any
jurisdiction of the state, and by bringing California policy
into line with federal policy."
This bill would not only correct the constitutional issues
raised by the appellate court in Somers, but would also
streamline the process for an individual who has undergone a
gender change to receive a judgment recognizing the gender
change. This bill would achieve this goal by permitting a
California-born transgender individual to file a petition for a
judgment from the court recognizing the gender change, as well
as requesting the issuance of a new birth certificate, in any
superior court in California.
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3. This bill would update the process for hearing a petition for
a gender change
Under existing law, the petition for a gender change must be
heard by the court and be accompanied by an affidavit from a
physician. Objections to the petition may be filed with the
court and the court may examine the petitioner under oath. At
the conclusion of the hearing, the court has the discretion to
either issue a new certificate or to dismiss the petition.
This bill would delete the ability for individuals to file
objections to the gender change petition. Also, this bill would
require the affidavit from the physician to attest to the gender
transition of the petitioner and that the affidavit includes
specified language. The court may then grant the petition after
determining whether or not the physician's affidavit shows that
the person has undergone clinically appropriate treatment for
the purpose of gender transition. This bill should modernize
California law and streamline the process for individuals who
have undergone a gender change by allowing these individuals to
petition any superior court in California and require courts to
rely on the affidavit of the physician indicating that the
gender change has occurred, rather than allowing individuals to
object to the petition and giving the court discretion to make
the order based on the petitioner's testimony.
4. AB 1185 veto message
The current version of this bill is similar to AB 1185 (Lieu,
2009). In vetoing AB 1185, Governor Schwarzenegger wrote:
The California Courts of Appeal have already provided a remedy
for
this issue, therefore this bill is unnecessary.
While the Court of Appeal in Somers did find that the residency
requirement for obtaining a new birth certificate is
unconstitutional, this bill would update California statutes to
be in line with current case law.
5. Author's amendment
This bill would require that the physician's affidavit be signed
under penalty of perjury. Because all court filings already
must be signed under penalty of perjury, the author has agreed
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to delete this language. The following amendment would achieve
this:
1. On page 2, line 25, delete "under penalty of perjury".
Support : American Civil Liberties Union; California Faculty
Association; California National Organization of Women; Los
Angeles Gay and Lesbian Center
Opposition : None Known
HISTORY
Source : Equality California; Transgender Law Center; Conference
of California Bar Associations
Related Pending Legislation : None Known
Prior Legislation :
AB 1851 (Longville, 2000) (See Background.)
AB 194 (Longville, 2001) (See Background.)
AB 1185 (Lieu, 2009) (See Background.)
Prior Vote :
Assembly Floor (Ayes 52, Noes 22)
Assembly Committee on Judiciary (Ayes 7, Noes 3)
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