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 
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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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