BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 433| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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 CONTINUED AB 433 Page 2 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 CONTINUED AB 433 Page 3 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 CONTINUED AB 433 Page 4 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) CONTINUED AB 433 Page 5 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, CONTINUED AB 433 Page 6 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 **** END **** CONTINUED