BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



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          |SENATE RULES COMMITTEE            |                   AB 433|
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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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