BILL ANALYSIS                                                                                                                                                                                                    Ó



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           ASSEMBLY THIRD READING
          AB 1121 (Atkins)
          As Amended April 22, 2013
          Majority vote 

           JUDICIARY           9-1         APPROPRIATIONS      12-5        
           
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          |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  |
          |     |                          |     |                          |
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           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  








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            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  








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               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  








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          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  








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          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 

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