BILL ANALYSIS Ó AB 1121 Page 1 ASSEMBLY THIRD READING AB 1121 (Atkins) As Amended April 22, 2013 Majority vote JUDICIARY 9-1 APPROPRIATIONS 12-5 ----------------------------------------------------------------- |Ayes:|Wieckowski, Alejo, Chau, |Ayes:|Gatto, Bocanegra, | | |Dickinson, Garcia, | |Bradford, | | |Gorell, Maienschein, | |Ian Calderon, Campos, | | |Muratsuchi, Stone | |Eggman, Gomez, Hall, | | | | |Holden, Pan, Quirk, Weber | | | | | | |-----+--------------------------+-----+--------------------------| |Nays:|Wagner |Nays:|Harkey, Bigelow, | | | | |Donnelly, Linder, Wagner | | | | | | ----------------------------------------------------------------- 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 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 AB 1121 Page 2 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. FISCAL EFFECT : According to the Assembly Appropriations Committee: 1)Minor costs to the State Registrar, covered by an existing $11 fee for issuance of a new birth certificate. 2)Negligible fiscal impact to the courts. 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. 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 AB 1121 Page 3 issue; inspection of one's birth 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.) 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 United States (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 AB 1121 Page 4 court process. 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. 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. 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, as recently amended the bill exempts from the newspaper publication requirement only petitions seeking a name change to conform the AB 1121 Page 5 petitioner's name to his or her gender identity. Significantly, the scope of the bill is more narrowly tailored 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 Assembly Judiciary 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 bill deletes an outdated January 1, 2010, statutory deadline, and makes other corresponding technical changes. Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334 FN: 0000330