BILL ANALYSIS Ó
AB 433
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CONCURRENCE IN SENATE AMENDMENTS
AB 433 (Bonnie Lowenthal)
As Amended June 10, 2011
Majority vote
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|ASSEMBLY: |52-22|(May 5, 2011) |SENATE: |23-13|(July 14, |
| | | | | |2011) |
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Original Committee Reference: JUD.
SUMMARY : Provides that an individual who has undergone an
appropriate treatment for purposes of gender transition may petition
to have the change in gender recognized and receive a new birth
certificate. Specifically, this bill :
1)Provides that whenever a person has undergone clinically
appropriate treatment for gender transition, that person may file
a petition in any superior court seeking a judgment recognizing
the change of gender. If requested, requires the judgment to
include an order for a new birth certificate.
2)Provides that the petition in 1) above must be accompanied by an
affidavit of a physician attesting that the petitioner has
undergone clinically appropriate treatment for gender transition.
Requires that the physician's affidavit be accepted as conclusive
proof of gender change provided it contains specified language and
is signed as true and correct to the best of the physician's
knowledge. Requires the court to grant the petition if the court
determines that the physician's affidavit shows that the
petitioner has undergone treatment for gender transition.
3)Allows a single petition to be used to change a petitioner's name,
recognize his or her change in gender and, if requested, order
issuance of a new birth certificate.
The Senate amendments delete the requirement that the physician's
affidavit be signed under penalty of perjury.
EXISTING LAW :
1)Provides that an individual who has undergone a sex change
operation may obtain, by court order from the court in the county
where the petitioner resides, a new birth certificate reflecting
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the change of sex and any name change.
2)Requires the petition for change of sex to be accompanied by an
affidavit of a physician documenting the sex change. Allows
objections to be filed by any person who can show the court good
reason not to change the birth certificate.
3)Provides for a single court petition to seek both a name change
and a new birth certificate.
AS PASSED BY THE ASSEMBLY , this bill was substantially similar to
the version approved by the Senate.
FISCAL EFFECT : None
COMMENTS : In 1977, California became the first state in the nation
to permit an individual 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. This bill revises the process to
petition the court for a judgment recognizing that an individual has
undergone a clinically appropriate treatment for gender transition.
According to the author:
California has a law allowing transgender people to obtain
a court order recognizing a change of gender and an
updated birth certificate. This process was first
established decades ago and while it allows transgender
people the basic dignity of being able to get identity
documents that truly reflect who they are, it is
procedurally challenging to navigate. Despite the fact
that case law has clarified that gender change petitions
can also be submitted in the jurisdiction where a person
was born, California law requires petitions be submitted
where a person resides.
Additionally, outdated state policy differs from federal
standards and creates confusion and unnecessary barriers.
Because of the differences between state and federal
policies, it is common for transgender Californians to
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find themselves with a passport with a corrected gender
marker and a state birth certificate with the wrong gender
designation.
Recently, a California appellate court determined that California's
refusal to issue new birth certificates to individuals who underwent
gender reassignment surgery and who, while born in California, now
reside elsewhere, violates the Privileges and Immunities Clause of
the United States Constitution. The court in that case held that
the requirement that a person seeking a new birth certificate file a
petition in his or her county of residence effectively denies the
right to an amended birth certificate to California-born transgender
individuals who now reside outside of California. The court found
that this restriction penalizes individuals for moving outside of
California and found no compelling state interest in treating
California-born transgender individuals residing out of state
differently from California-born transgender individuals residing in
California. The court did not even find any rational basis for this
disparate treatment.
This bill seeks to streamline the process and clarify that eligible
petitioners can submit a gender change petition in any jurisdiction
in California. This will allow those born in California, but now
living elsewhere to get a new California birth certificate.
Additionally, this bill requires that the physician's affidavit be
accepted as conclusive proof of gender change provided it contains
specified language and is signed as true and correct to the best of
the physician's knowledge. The court is then required to grant the
change of gender petition, if the court determines that the
physician's affidavit shows that the petitioner has undergone
treatment for gender transition. These changes should simplify the
process of obtaining a judgment of gender transition and a new birth
certificate accurately reflecting the petitioner's gender.
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334
FN: 0001425