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) AB 433 (Lowenthal) Page 2 of ? 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 AB 433 (Lowenthal) Page 3 of ? 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 AB 433 (Lowenthal) Page 4 of ? 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 AB 433 (Lowenthal) Page 5 of ? 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. AB 433 (Lowenthal) Page 6 of ? 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 AB 433 (Lowenthal) Page 7 of ? 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) **************