Amended in Senate July 9, 2013

Amended in Assembly April 22, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 1121

Introduced by Assembly Member Atkins

(Coauthors: Assembly Members Garcia and Stone)

February 22, 2013

An act to amend begin insert , repeal, and add end insert Sections 1277 and 1278 of the Code of Civil Procedure, and to add Section 103426 to, the Health and Safety Code, relating to gender identity.

LEGISLATIVE COUNSEL’S DIGEST

AB 1121, as amended, Atkins. Gender identity: petition for change of name.

Existing law sets forth the requirements and procedures for proceedings commenced by the filing of a petition for a change of name. Existing law authorizes a court to grant the petition without a hearing if no written objection to the change of name is timely filed and imposes publication requirements with respect to the court hearing of the change of name petition. Existing law also requires that the current legal name of the petitioner be kept confidential by the court under prescribed circumstances.

This bill would provide that if begin delete no written objection is timely filed, the order reciting the filing of the petition, the petitioner’s name, and the proposed name shall state that the court is required to grant the petition without a hearing end delete begin insert a petition for a change of name is sought to conform the petitioner’s name to his or her gender identity, and no timely objection is filed, the court is required to grant the petition without a hearing end insert . begin delete If a petition for a change of name is sought in order to conform the petitioner’s name to his or her gender identity, the end delete begin insert The end insert bill would exempt the begin insert petition end insert action from a specified publication requirement and would require that the petition and order of the court indicate that the proposed name is confidential. begin insert The bill would authorize a court, at the request of the petitioner to, issue an order reciting the name of the petitioner as a result of the court’s granting of the petition. The bill would make these provisions operative on July 1, 2014. end insert

Existing law authorizes a person to file a petition with the superior court in any county to seek a judgment recognizing a change of gender whenever that person has undergone clinically appropriate treatment for the purpose of gender transition. Existing law requires that if requested, the judgment include an order that a new birth certificate be prepared to reflect the change of gender and any change of name. Existing law requires that the State Registrar transmit a certified copy of a birth certificate newly established pursuant to these provisions.

This bill would require the State Registrar to issue a new birth certificate without a court order for any person born in the state who has undergone clinically appropriate treatment for the purpose of gender transition and submits to the State Registrar an affidavit of a physician attesting that the person has undergone that treatment, as specified. Upon receipt of the documentation and a prescribed fee, the State Registrar would be required to establish a new birth certificate reflecting the person’s sex and name, if applicable.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 1277 of the Code of Civil Procedure is
amended to read:

1277.  

(a) If a proceeding for a change of name is commenced
by the filing of a petition, except as provided in subdivisions (b),
(c), and (e), the court shall thereupon make an order reciting the
filing of the petition, the name of the person by whom it is filed,
and the name proposed. The order shall direct all persons interested
in the matter to appear before the court at a time and place
specified, which shall be not less than six nor more than 12 weeks
from the time of making the order, unless the court orders a
different time, to show cause why the application for change of
name should not be granted. The order shall direct all persons
interested in the matter to make known any objection that they
may have to the granting of the petition for change of name by
filing a written objection, which includes the reasons for the
objection, with the court at least two court days before the matter
is scheduled to be heard and by appearing in court at the hearing
to show cause why the petition for change of name should not be
granted. The order shall state that, if no written objection is timely
filed, the court begin delete shall end delete begin insert may end insert grant the petition without a hearing.

A copy of the order to show cause shall be published pursuant
to Section 6064 of the Government Code in a newspaper of general
circulation to be designated in the order published in the county.
If no newspaper of general circulation is published in the county,
a copy of the order to show cause shall be posted by the clerk of
the court in three of the most public places in the county in which
the court is located, for a like period. Proof shall be made to the
satisfaction of the court of this publication or posting, at the time
of the hearing of the application.

Four weekly publications shall be sufficient publication of the
order to show cause. If the order is published in a daily newspaper,
publication once a week for four successive weeks shall be
sufficient.

If a petition has been filed for a minor by a parent and the other
parent, if living, does not join in consenting thereto, the petitioner
shall cause, not less than 30 days prior to the hearing, to be served
notice of the time and place of the hearing or a copy of the order
to show cause on the other parent pursuant to Section 413.10,
414.10, 415.10, or 415.40. If notice of the hearing cannot
reasonably be accomplished pursuant to Section 415.10 or 415.40,
the court may order that notice be given in a manner that the court
determines is reasonably calculated to give actual notice to the
nonconsenting parent. In that case, if the court determines that
notice by publication is reasonably calculated to give actual notice
to the nonconsenting parent, the court may determine that
publication of the order to show cause pursuant to this subdivision
is sufficient notice to the nonconsenting parent.

(b) (1) If the petition for a change of name alleges a reason or
circumstance described in paragraph (2), and the petitioner is a
participant in the address confidentiality program created pursuant
to Chapter 3.1 (commencing with Section 6205) of Division 7 of
Title 1 of the Government Code, the action for a change of name
is exempt from the requirement for publication of the order to
show cause under subdivision (a), and the petition and the order
of the court shall, in lieu of reciting the proposed name, indicate
that the proposed name is confidential and will be on file with the
Secretary of State pursuant to the provisions of the address
confidentiality program.

(2) The procedure described in paragraph (1) applies to petitions
alleging any of the following reasons or circumstances:

(A) To avoid domestic violence, as defined in Section 6211 of
the Family Code.

(B) To avoid stalking, as defined in Section 646.9 of the Penal
Code.

(C) The petitioner is, or is filing on behalf of, a victim of sexual
assault, as defined in Section 1036.2 of the Evidence Code.

begin delete

(3) If the petition for a change of name is sought in order to
conform the petitioner’s name to his or her gender identity, the
action for a change of name is exempt from the requirement for
publication of the order to show cause under subdivision (a), and
the petition and order of the court shall, in lieu of reciting the
proposed name, indicate that the proposed name is confidential.

(4)

end delete

begin insert (3) end insert  For any petition under this subdivision, the current legal
name of the petitioner shall be kept confidential by the court and
shall not be published or posted in the court’s calendars, indexes,
or register of actions, as required by Article 7 (commencing with
Section 69840) of Chapter 5 of Title 8 of the Government Code,
or by any means or in any public forum, including a hardcopy or
an electronic copy, or any other type of public media or display.

begin delete

(5)

end delete

begin insert (4) end insert   begin insert (A) end insert begin insert   end insert A petitioner may request that the court file the petition
and any other papers associated with the proceeding under seal.
The court may consider the request at the same time as the petition
for name change, and may grant the request in any case in which
the court finds that all of the following factors apply:

begin delete

(A)

end delete

begin insert (i) end insert  There exists an overriding interest that overcomes the right
of public access to the record.

begin delete

(B)

end delete

begin insert (ii) end insert  The overriding interest supports sealing the record.

begin delete

(C)

end delete

begin insert (iii) end insert  A substantial probability exists that the overriding interest
will be prejudiced if the record is not sealed.

begin delete

(D)

end delete

begin insert (iv) end insert  The proposed order to seal the records is narrowly tailored.

begin delete

(E)

end delete

begin insert (v) end insert  No less restrictive means exist to achieve the overriding
interest.

begin insert

(B) On or before January 1, 2010, the Judicial Council shall
develop rules of court and forms consistent with the requirements
of this paragraph.

end insert

(c) A proceeding for a change of name for a witness participating
in the state Witness Protection Program established by Title 7.5
(commencing with Section 14020) of Part 4 of the Penal Code
who has been approved for the change of name by the program is
exempt from the requirement for publication of the order to show
cause under subdivision (a).

(d) If application for change of name is brought as part of an
action under the Uniform Parentage Act (Part 3 (commencing with
Section 7600) of Division 12 of the Family Code), whether as part
of a petition or cross-complaint or as a separate order to show
cause in a pending action thereunder, service of the application
shall be made upon all other parties to the action in a like manner
as prescribed for the service of a summons, as is set forth in Article
3 (commencing with Section 415.10) of Chapter 4 of Title 5 of
Part 2. Upon the setting of a hearing on the issue, notice of the
hearing shall be given to all parties in the action in a like manner
and within the time limits prescribed generally for the type of
hearing (whether trial or order to show cause) at which the issue
of the change of name is to be decided.

(e) If a guardian files a petition to change the name of his or her
minor ward pursuant to Section 1276:

(1) The guardian shall provide notice of the hearing to any living
parent of the minor by personal service at least 30 days prior to
the hearing.

(2) If either or both parents are deceased or cannot be located,
the guardian shall cause, not less than 30 days prior to the hearing,
to be served a notice of the time and place of the hearing or a copy
of the order to show cause on the child’s grandparents, if living,
pursuant to Section 413.10, 414.10, 415.10, or 415.40.

begin insert

(f) This section shall remain in effect only until July 1, 2014,
and as of that date is repealed, unless a later enacted statute, that
is enacted before July 1, 2014, deletes or extends that date.

end insert

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 1277 is added to the end insert begin insert Code of Civil Procedure end insert begin insert ,
to read: end insert

begin insert

begin insert 1277. end insert   

(a) (1) If a proceeding for a change of name is
commenced by the filing of a petition, except as provided in
subdivisions (b), (c), and (e), the court shall thereupon make an
order reciting the filing of the petition, the name of the person by
whom it is filed, and the name proposed. The order shall direct
all persons interested in the matter to appear before the court at
a time and place specified, which shall be not less than six nor
more than 12 weeks from the time of making the order, unless the
court orders a different time, to show cause why the application
for change of name should not be granted. The order shall direct
all persons interested in the matter to make known any objection
that they may have to the granting of the petition for change of
name by filing a written objection, which includes the reasons for
the objection, with the court at least two court days before the
matter is scheduled to be heard and by appearing in court at the
hearing to show cause why the petition for change of name should
not be granted. The order shall state that, if no written objection
is timely filed, the court may grant the petition without a hearing.
If the petition seeks to conform the petitioner’s name to his or her
gender identity and no objection is timely filed, the court shall
grant the petition without a hearing.

(2) A copy of the order to show cause shall be published
pursuant to Section 6064 of the Government Code in a newspaper
of general circulation to be designated in the order published in
the county. If no newspaper of general circulation is published in
the county, a copy of the order to show cause shall be posted by
the clerk of the court in three of the most public places in the county
in which the court is located, for a like period. Proof shall be made
to the satisfaction of the court of this publication or posting, at the
time of the hearing of the application.

(3) Four weekly publications shall be sufficient publication of
the order to show cause. If the order is published in a daily
newspaper, publication once a week for four successive weeks
shall be sufficient.

(4) If a petition has been filed for a minor by a parent and the
other parent, if living, does not join in consenting thereto, the
petitioner shall cause, not less than 30 days prior to the hearing,
to be served notice of the time and place of the hearing or a copy
of the order to show cause on the other parent pursuant to Section
413.10, 414.10, 415.10, or 415.40. If notice of the hearing cannot
reasonably be accomplished pursuant to Section 415.10 or 415.40,
the court may order that notice be given in a manner that the court
determines is reasonably calculated to give actual notice to the
nonconsenting parent. In that case, if the court determines that
notice by publication is reasonably calculated to give actual notice
to the nonconsenting parent, the court may determine that
publication of the order to show cause pursuant to this subdivision
is sufficient notice to the nonconsenting parent.

(b) (1) If the petition for a change of name alleges a reason or
circumstance described in paragraph (2), and the petitioner is a
participant in the address confidentiality program created pursuant
to Chapter 3.1 (commencing with Section 6205) of Division 7 of
Title 1 of the Government Code, the action for a change of name
is exempt from the requirement for publication of the order to show
cause under subdivision (a), and the petition and the order of the
court shall, in lieu of reciting the proposed name, indicate that the
proposed name is confidential and will be on file with the Secretary
of State pursuant to the provisions of the address confidentiality
program.

(2) The procedure described in paragraph (1) applies to
petitions alleging any of the following reasons or circumstances:

(A) To avoid domestic violence, as defined in Section 6211 of
the Family Code.

(B) To avoid stalking, as defined in Section 646.9 of the Penal
Code.

(C) The petitioner is, or is filing on behalf of, a victim of sexual
assault, as defined in Section 1036.2 of the Evidence Code.

(3) If the petition for a change of name is sought in order to
conform the petitioner’s name to his or her gender identity, the
action for a change of name is exempt from the requirement for
publication of the order to show cause under subdivision (a), and,
at the request of the petitioner, the petition and order of the court
shall, in lieu of reciting the proposed name, indicate that the
proposed name is confidential.

(4) For any petition under this subdivision, the current legal
name of the petitioner shall be kept confidential by the court and
shall not be published or posted in the court’s calendars, indexes,
or register of actions, as required by Article 7 (commencing with
Section 69840) of Chapter 5 of Title 8 of the Government Code,
or by any means or in any public forum, including a hardcopy or
an electronic copy, or any other type of public media or display.

(5) Notwithstanding paragraph (4), the court may, at the request
of the petitioner, issue an order reciting the name of the petitioner
at the time of the filing of the petition and the new legal name of
the petitioner as a result of the court’s granting of the petition.

(6) A petitioner may request that the court file the petition and
any other papers associated with the proceeding under seal. The
court may consider the request at the same time as the petition for
name change, and may grant the request in any case in which the
court finds that all of the following factors apply:

(A) There exists an overriding interest that overcomes the right
of public access to the record.

(B) The overriding interest supports sealing the record.

(C) A substantial probability exists that the overriding interest
will be prejudiced if the record is not sealed.

(D) The proposed order to seal the records is narrowly tailored.

(E) No less restrictive means exist to achieve the overriding
interest.

(c) A proceeding for a change of name for a witness
participating in the state Witness Protection Program established
by Title 7.5 (commencing with Section 14020) of Part 4 of the
Penal Code who has been approved for the change of name by the
program is exempt from the requirement for publication of the
order to show cause under subdivision (a).

(d) If application for change of name is brought as part of an
action under the Uniform Parentage Act (Part 3 (commencing
with Section 7600) of Division 12 of the Family Code), whether
as part of a petition or cross-complaint or as a separate order to
show cause in a pending action thereunder, service of the
application shall be made upon all other parties to the action in
a like manner as prescribed for the service of a summons, as is set
forth in Article 3 (commencing with Section 415.10) of Chapter 4
of Title 5 of Part 2. Upon the setting of a hearing on the issue,
notice of the hearing shall be given to all parties in the action in
a like manner and within the time limits prescribed generally for
the type of hearing (whether trial or order to show cause) at which
the issue of the change of name is to be decided.

(e) If a guardian files a petition to change the name of his or
her minor ward pursuant to Section 1276:

(1) The guardian shall provide notice of the hearing to any
living parent of the minor by personal service at least 30 days
prior to the hearing.

(2) If either or both parents are deceased or cannot be located,
the guardian shall cause, not less than 30 days prior to the hearing,
to be served a notice of the time and place of the hearing or a copy
of the order to show cause on the child’s grandparents, if living,
pursuant to Section 413.10, 414.10, 415.10, or 415.40.

(f) This section shall become operative on July 1, 2014.

end insert

begin delete SEC. 2. end delete
begin insert SEC. 3. end insert   

Section 1278 of the Code of Civil Procedure is
amended to read:

1278.  

(a) Except as provided in subdivisions (c) and (d), the
petition or application shall be heard at the time designated by the
court, only if objections are filed by begin delete a end delete begin insert any end insert person who can, in those
objections, show to the court good reason against the change of
name. At the hearing, the court may examine on oath any of the
petitioners, remonstrants, or other persons, touching the petition
or application, and may make an order changing the name, or
dismissing the petition or application, as to the court may seem
right and proper.

If no objection is filed at least two court days before the date set
for hearing, the court begin delete shall end delete begin insert may end insert , without hearing, enter the order
that the change of name is granted.

(b) If the provisions of subdivision (b) of Section 1277 apply,
the court shall not disclose the proposed name unless the court
finds by clear and convincing evidence that the allegations of
domestic violence begin delete , stalking, sexual assault, or gender identity in
the petition end delete begin insert or stalking end insert are false.

(c) If the application for a change of name is brought as part of
an action under the Uniform Parentage Act (Part 3 (commencing
with Section 7600) of Division 12 of the Family Code), the hearing
on the issue of the change of name shall be conducted pursuant to
statutes and rules of court governing those proceedings, whether
the hearing is conducted upon an order to show cause or upon trial.

(d) If the petition for a change of name is filed by a guardian
on behalf of a minor ward, the court shall first find that the ward
is likely to remain in the guardian’s care until the age of majority
and that the ward is not likely to be returned to the custody of his
or her parents. Upon making those findings, the court shall consider
the petition and may grant the petition only if it finds that the
proposed name change is in the best interest of the child.

begin insert

(e) This section shall remain in effect only until July 1, 2014,
and as of that date is repealed, unless a later enacted statute, that
is enacted before July 1, 2014, deletes or extends that date.

end insert

begin insert

begin insert SEC. 4. end insert   

end insert

begin insert Section 1278 is added to the end insert begin insert Code of Civil Procedure end insert begin insert ,
to read: end insert

begin insert

begin insert 1278. end insert   

(a) (1) Except as provided in subdivisions (c) and (d),
the petition or application shall be heard at the time designated
by the court, only if objections are filed by a person who can, in
those objections, show to the court good reason against the change
of name. At the hearing, the court may examine on oath any of the
petitioners, remonstrants, or other persons touching the petition
or application, and may make an order changing the name, or
dismissing the petition or application, as to the court may seem
right and proper.

(2) If no objection is filed at least two court days before the date
set for hearing, the court may, without hearing, enter the order
that the change of name is granted. If the petition seeks to conform
the petitioner’s name to his or her gender identity and no objection
is timely filed, the court shall grant the petition without a hearing.

(b) If the provisions of subdivision (b) of Section 1277 apply,
the court shall not disclose the proposed name unless the court
finds by clear and convincing evidence that the allegations of
domestic violence, stalking, sexual assault, or gender identity in
the petition are false.

(c) If the application for a change of name is brought as part
of an action under the Uniform Parentage Act (Part 3 (commencing
with Section 7600) of Division 12 of the Family Code), the hearing
on the issue of the change of name shall be conducted pursuant to
statutes and rules of court governing those proceedings, whether
the hearing is conducted upon an order to show cause or upon
trial.

(d) If the petition for a change of name is filed by a guardian
on behalf of a minor ward, the court shall first find that the ward
is likely to remain in the guardian’s care until the age of majority
and that the ward is not likely to be returned to the custody of his
or her parents. Upon making those findings, the court shall
consider the petition and may grant the petition only if it finds that
the proposed name change is in the best interest of the child.

(e) This section shall become operative on July 1, 2014.

end insert

begin delete SEC. 3. end delete
begin insert SEC. 5. end insert   

Section 103426 is added to the Health and Safety Code,
to read:

103426.  

The State Registrar shall issue a new birth certificate
without a court order for any person born in this state who has
undergone clinically appropriate treatment for the purpose of
gender transition and submits directly to the State Registrar the
documentation described in subdivision (a) of Section 103430.
Upon receipt of the documentation and the fee prescribed by
Section 103725, the State Registrar shall establish a new birth
certificate reflecting the person’s correct sex and name, if
applicable, pursuant to subdivision (d) of Section 103430 and
Sections 103440 and 103445.