BILL ANALYSIS �
AB 1121
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Date of Hearing: April 16, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 1121 (Atkins) - As Introduced: February 22, 2013
As Proposed to Be Amended
SUBJECT : CIVIL PROCEEDINGS: PETITION FOR CHANGE OF NAME
KEY ISSUE : SHOULD TRANSGENDER PEOPLE HAVE THE OPPORTUNITY TO
USE AN ADMINISTRATIVE PROCEDURE TO AMEND THEIR GENDER AND NAME
ON THEIR CALIFORNIA BIRTH CERTIFICATE WITHOUT HAVING TO OBTAIN A
COURT ORDER OR PUBLISH NOTICE OF THE NAME CHANGE IN A NEWSPAPER?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill, co-sponsored by the Transgender Law Center and
Equality California, seeks to create an administrative procedure
that transgender persons born in California may utilize in
seeking a new birth certificate that reflects changes to their
sex and name. As proposed to be amended, this bill also makes
several changes to assist transgender persons seeking to obtain
an order for a legal name change through the current court
process. Among other things, these changes include: (1)
requiring the court in uncontested cases to grant a petition for
a name change without a hearing; (2) enhancing privacy
protections for the names of transgender persons within various
court records; and (3) waiving the newspaper publication
requirement for transgender-related name changes. The bill is
supported by civil rights groups and other advocates for
transgender people, who contend that current California
court-based procedures to change a person's name and gender are
too lengthy, expensive, and burdensome for many transgender
persons, thus warranting an optional administrative procedure.
This bill has no known opposition.
SUMMARY : Creates an optional administrative procedure for a
transgender person born in California to amend gender and name
on his or her birth certificate without first obtaining a court
order. Specifically, this bill :
1)Requires the State Registrar to issue a new birth certificate
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without a court order for any person born in California who
has undergone clinically appropriate treatment for the purpose
of gender transition and submits an affidavit from a
physician, as specified. Further requires the State Registrar
to follow certain procedures in preparing the birth
certificate so that it reflects the person's correct sex and
name, if applicable.
2)Requires, rather than permits, the court to grant an
uncontested name change petition without a hearing.
3)Exempts from newspaper publication requirements any petition
for change of name that is sought in order to conform the
petitioner's name to his or her gender identity, and requires
the petition and court order to indicate the proposed name is
confidential rather than reciting the name.
4)Provides that, upon request by the petitioner, the current
legal name of the petitioner shall be kept confidential by the
court and not published in any court records or public forum
or media, as specified, when the petition is sought to conform
the petitioner's name to his or her gender identity.
EXISTING LAW :
1)Permits any person who has undergone clinically appropriate
treatment for the purpose of gender transition, to file a
petition with the superior court in any county seeking a
judgment and court order recognizing the change of gender.
(Health & Safety Code Section 103425. Unless otherwise noted,
all further references are to this code.)
2)Requires the petition to be accompanied by: (a) an affidavit
of a physician, to be accepted as conclusive proof of gender
change, attesting that the person has undergone clinically
appropriate treatment for the purpose of gender transition,
based on contemporary medical standards; and (b) a certified
copy of the court order changing the applicant's name, if
applicable. (Section 103430(a).)
3)Permits the court, upon hearing of the petition, to examine
the petitioner, and any other person having knowledge of facts
relevant to the application. Requires the court to grant the
petition at the end of the hearing if the court determines
that the physician's affidavit shows that the person has
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undergone clinically appropriate treatment for the purpose of
gender transition. (Section 103430(b).)
4)Provides that the new birth certificate shall supplant any
birth certificate previously registered for the applicant and
shall be the only birth certificate open to public inspection.
(Section 103440.)
5)Requires a person seeking a change of name to file a petition
with the court, as specified, to obtain a hearing on an order
to show cause, and permits, but does not require, the court to
grant the petition without a hearing if no written objection
is timely filed. (Code of Civil Procedure Section 1277.)
6)Requires a copy of the order to show cause to be published in
a newspaper of general circulation at least once a week for
four weeks. (Code of Civil Procedure Section 1277.)
7)Allows petitioners for name changes who are participants in
the Secretary of State's address confidentiality program
("Safe At Home" program) to be exempt from newspaper
publication requirements and to have increased confidentiality
of their name in court records. (Code of Civil Procedure
Section 1277.)
8)Permits, but does not require, the court to enter an order to
grant a name change without hearing if no objection is filed
at least two court days before the hearing date. (Code of
Civil Procedure Section 1278.)
COMMENTS : This bill, co-sponsored by the Transgender Law Center
and Equality California, seeks to create an administrative
procedure that transgender persons born in California may
utilize in seeking a new birth certificate that reflects changes
to their sex and name. This bill also makes several changes to
reduce burdens on and protect privacy for transgender persons
seeking to obtain an order for a legal name change through the
current court process. Among other things, these changes
include requiring the court in uncontested cases to grant a
petition for a name change without a hearing, and enhancing
privacy protections for the names of transgender persons within
various court records.
Author's statement : According to the author:
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The current California procedures to change a person's
name and/or gender are extremely costly and burdensome,
particularly for low-income transgender individuals who
may not meet the extremely low income limits to be
eligible for court fee waivers and who generally do not
have access to attorneys to help them navigate the court
system. While many other states have simple
administrative procedures that permit transgender people
to amend the gender marker and/or name on their birth
certificates, California still requires a lengthy,
expensive, and burdensome process that includes a
mandatory court petition as a prerequisite before the
state's Office of Vital Records will change the gender
marker and/or name on a birth certificate. An alternative
administrative-only route for CA born residents would
both streamline individuals' access to corrected birth
certificates and reduce the caseloads on overwhelmed
courts.
AB 1121 would create a new administrative option for
transgender people seeking to amend the gender and/or
name on a California birth certificate, eliminating the
unnecessary interim step of getting a court order before
the State Registrar can change a birth certificate.
Accurate gender designation on a birth certificate is essential,
particularly for transgender people. The birth certificate is
widely used as an identity document for a multitude of purposes,
including proving age, obtaining other forms of government
identification, and demonstrating eligibility for employment
(including, in some cases, in the office of President of the
United States.) According to a recent law review article:
There are many practical, legal, and social realities
that result from having an inaccurate gender marker, some
of them with potentially fatal consequences. Although the
gender recorded on a person's birth certificate may not
be considered legally binding, in many circumstances, it
is an important factor in determining whether or how an
individual's gender is recognized as a practical matter.
In addition, transgender people holding birth
certificates that are not corrected following gender
transition risk having their transgender histories
revealed, which can lead to a number of serious harms.
This is not an abstract issue; inspection of one's birth
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certificate (or documents it generates) can lead directly
to discrimination and even violence, especially when a
situation involves interactions with security officers,
employment, or access to sex-segregated facilities. (Lisa
Mottet, "Modernizing State Vital Statistics Statutes . .
."; 19 Mich. Journal Gender and Law 373, 391-392.)
Administrative procedure for amending gender and/or name on a
California birth certificate. While many other states have
simple administrative procedures that permit transgender people
to amend the gender marker and/or name on their birth
certificates, California still requires a court order before the
state's Office of Vital Records will change the gender marker
and/or name on a birth certificate. This bill would provide a
new administrative-only route for transgender people seeking to
amend the gender and/or name on a California birth certificate,
eliminating the interim step of a court order. Under this
change, an individual could simply apply directly to the Office
of Vital Records to change the gender and/or name on a birth
certificate, supplying the required physician's declaration to
that office instead of to the court.
Proponents of the bill contend that an administrative process
that can be completed solely by mail would be far more
cost-effective and accessible for many transgender individuals,
particularly those born in California but currently residing
outside the state, for whom it may not be possible or affordable
to travel back to California to attend a court hearing. They
also note that other essential identification documents, such as
a U.S. Passport or Social Security records, are handled
administratively and do not require a court order. (See, e.g.,
U.S. Department of State, Foreign Affairs Manual, Volume 7, 7
FAM 1300, Appendix M, available at
http://www.state.gov/documents/organization/143160.pdf .)
Because California officials cannot administratively alter a
non-California birth certificate belonging to a current
California resident, the current court process for obtaining a
court order recognizing a person's legal gender transition must
remain available as an option for people living in California
but born in other states. In addition, persons who desire extra
assurance that birth certificate changes would be granted full
faith and credit by other states may wish to pursue the current
court process.
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Petitions for change of name. In addition to amending their
birth certificate, many transgender people need to change their
legal names in order to complete their gender transition. A
court-ordered name change is also a legal prerequisite to
changing the name on many other identity documents, including a
California driver's license, a U.S. passport, or Social Security
records. Under current California law, in order to receive a
court-ordered name change, a person generally has to participate
in a hearing in open court, although judges can waive the
hearing requirement if no one files an objection, and publish an
order to show cause for four weeks in a newspaper of general
circulation in the county where they live.
Among other things, this bill seeks to require the court in
uncontested cases to grant a petition for a name change without
a hearing, and, upon request by the petitioner, to keep
confidential the current legal name of the petitioner and not
publish the name in any court records or public forum or media,
as specified.
As proposed to be amended, this bill recasts existing law to
ensure that the current legal name of the petitioner shall be
kept confidential by the court and not published in any court
records or public forum or media, as specified, when the
petition is sought to conform the petitioner's name to his or
her gender identity. Under existing law, only victims of
domestic violence, stalking, and sexual assault participating in
the Safe At Home address confidentiality program run by the
Secretary of State are entitled to this highest level of
confidentiality throughout court records. It is the premise of
this bill that because of safety concerns, all transgender
persons seeking a legal change of name require the same
automatic confidentiality protections as victims of domestic
violence, stalking, and sexual assault, and no individual
showing of need for safety is required.
As proposed to be amended, this bill narrowly tailors the
newspaper publication requirement for name change orders.
According to the author and sponsor, many transgender persons
understandably are concerned with preserving their privacy as
they navigate the court process for obtaining an order for name
change. Rather than eliminating the general newspaper
publication requirement for all legal name changes, the author
prudently has proposed to amend the bill to instead exempt from
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the newspaper publication requirement only petitions seeking a
name change to conform the petitioner's name to his or her
gender identity. Significantly, this proposed amendment more
narrowly tailors the scope of the bill to carry out its stated
intent-namely, to streamline the name change process and protect
privacy for transgender persons that are the focus of this bill.
Under existing law, only victims of domestic violence, stalking,
and sexual assault participating in the Safe At Home address
confidentiality program are entitled to exemption from newspaper
publication requirements. The Committee notes that by virtue of
their participation in the Safe At Home program, these crime
victims have shown a strong basis to fear for their continued
safety, thus warranting protection. According to the sponsors
of this bill, most if not all transgender persons also have
reason to fear for their safety if publication of the name
change is required in the newspaper, and thus exemption from the
publication requirement is justified.
Finally, the proposed author amendments also delete an outdated
January 1, 2010 statutory deadline, and make corresponding
technical changes to the bill.
REGISTERED SUPPORT / OPPOSITION :
Support
Transgender Law Center (co-sponsor)
Equality California (co-sponsor)
AIDS Legal Referral Panel
California Immigrant Policy Center
Civil Justice Association of California (CJAC)
Larkin Street Youth Services
Los Angeles Gay & Lesbian Center
National Center for Lesbian Rights
Spectrum LGBT Center
Approximately 100 individuals
Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334
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