BILL ANALYSIS Ó
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THIRD READING
Bill No: AB 433
Author: Bonnie Lowenthal (D)
Amended: 6/10/11 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 4-1, 06/07/11
AYES: Evans, Blakeslee, Corbett, Leno
NOES: Harman
ASSEMBLY FLOOR : 52-22, 05/05/11 - See last page for vote
SUBJECT : Birth certificates: issuance
SOURCE : Equality California
Transgender Law Center
Conference of California Bar Associations
DIGEST : This bill provides 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.
ANALYSIS : 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
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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 authorizes 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 provides that, if requested, the court's judgment
shall include an order that a new birth certificate be
prepared reflecting the change in gender.
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 requires 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 deletes the ability for individuals to object to
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the petition.
This bill requires 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.
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 authorizes 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.
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 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
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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.
Prior Legislation
AB 1851 (Longville), 2000 (See Background.)
AB 194 (Longville), 2001 (See Background.)
AB 1185 (Lieu), 2009 (See Background.)
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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/9/11)
Equality California (co-source)
Transgender Law Center (co-source)
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Conference of California Bar Associations (co-source)
American Civil Liberties Union
California Faculty Association
California National Organization of Women
Los Angeles Gay and Lesbian Center
ARGUMENTS IN SUPPORT : Equality California and the
Transgender Law Center 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."
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."
ASSEMBLY FLOOR : 52-22, 05/05/11
AYES: Alejo, Allen, Ammiano, Atkins, Beall, Block,
Blumenfield, Bonilla, Bradford, Brownley, Buchanan,
Butler, Charles Calderon, Campos, Carter, Cedillo,
Chesbro, Davis, Dickinson, Eng, Feuer, Fletcher, Fong,
Fuentes, Galgiani, Gatto, Gordon, Hall, Hayashi, Roger
Hernández, Hill, Huber, Hueso, Huffman, Lara, Bonnie
Lowenthal, Ma, Mendoza, Mitchell, Monning, Pan, Perea, V.
Manuel Pérez, Portantino, Skinner, Solorio, Swanson,
Torres, Wieckowski, Williams, Yamada, John A. Pérez
NOES: Achadjian, Bill Berryhill, Conway, Cook, Donnelly,
Grove, Hagman, Halderman, Harkey, Jeffries, Knight,
Logue, Mansoor, Miller, Morrell, Nestande, Norby, Olsen,
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Silva, Smyth, Valadao, Wagner
NO VOTE RECORDED: Furutani, Garrick, Gorell, Jones,
Nielsen, Vacancy
RJG:nl 6/11/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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