BILL ANALYSIS �
AB 1121
Page 1
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
FN: 0000330