BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
AB 1121 (Atkins)
As Amended April 22, 2013
Hearing Date: July 2, 2013
Fiscal: Yes
Urgency: No
NR
SUBJECT
Gender identity: petition for change of name
DESCRIPTION
This bill would provide that if no objection is timely filed,
the court shall grant a petition for a change of name without a
hearing. This bill would also provide that if the petition for
a change of name is sought to conform the petitioner's name to
his or her gender identity, that action is exempt from the
requirement for publication, and the petition and order of the
court shall indicate that the proposed name is confidential.
This bill would also require the State Registrar to issue a new
birth certificate, without a court order, for any person born in
this state that has had a gender transition, as specified, and
submits directly to the State Registrar the appropriate
documentation.
BACKGROUND
For many transgender people, living an authentic life means
changing their identity documentation to reflect the way they
see themselves versus the way society identifies them. The
ability to change one's documentation or status can have a
significant impact on all other aspects of a person's life
including employment, marriage, and inheritance rights.
Difficulty is created by the fact that each state (and, for
foreign born U.S. residents and citizens, each country) and the
federal government has its own rules for how to change names and
gender marker information. A court-ordered name change is also a
legal prerequisite to changing the name on many other identity
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documents, including a driver's license, a U.S. passport, or
Social Security records.
California requires a court order, based on a physician's
affidavit attesting to the gender transition surgery, before the
state's Office of Vital Records may change the gender marker
and/or name on a birth certificate. In addition, to receive a
court-ordered name change, a person typically must participate
in a hearing in open court, although judges can waive the
hearing requirement if no one files an objection, and must
publish the order to show cause for four weeks in a newspaper of
general circulation in the county where the petitioner lives.
This bill, sponsored by the Transgender Law Center and Equality
California, would create an administrative procedure for
California-born transgender persons seeking a new birth
certificate that reflects changes to their sex and/or name.
This bill would also make several changes to assist transgender
persons seeking to a court-ordered name change. These changes
would include: (1) requiring the court in all 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.
CHANGES TO EXISTING LAW
Existing law allows any person who has undergone a clinically
appropriate treatment for the purpose of gender transition to
petition the superior court for a judgment and court order
recognizing the change of gender. (Health & Saf. Code Sec.
103425.)
Existing law requires the above petition to be accompanied by:
(1) an affidavit of a physician, attesting that the person has
undergone clinically appropriate treatment for the purpose of
gender transition, as specified; and (2) a certified copy of the
court order changing the applicant's name, if applicable.
(Health & Saf. Code Sec. 103430(a).)
Existing law authorizes the court, upon hearing of the petition,
to examine the petitioner, and any other person having knowledge
of facts relevant to the application, and further 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
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person has undergone clinically appropriate treatment for the
purpose of gender transition. (Health & Saf. Code Sec.
103430(b).)
Existing law provides that the new birth certificate shall
replace any birth certificate previously registered for the
applicant, and be the only birth certificate open to public
inspection. (Health & Saf. Code Sec. 103440.)
Existing law requires a person seeking a change of name to file
a petition with the court, as specified, and the court to make
an order reciting that petition to all interested persons so
that they may file an objection with the court. (Code Civ.
Proc. Sec. 1277.)
Existing law 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 Civ. Proc. Secs. 1277, 1278.)
Existing law authorizes 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 Civ. Proc. Sec.
1278.)
Existing law allows participants in the Secretary of State's
address confidentiality program who petition the court for a
change of name to be exempt from the newspaper publication
requirements and to have increased confidentiality of their name
in court records. (Code Civ. Proc. Sec. 1277.)
This bill would require 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 who submits an affidavit
from a physician, as specified.
This bill would require, rather than authorize, the court to
grant an uncontested name change petition without a hearing.
This bill would exempt any petition for a change of name that is
sought in order to conform the petitioner's name to his or her
gender identity from newspaper publication requirements, and
would require the petition and court order to indicate the
proposed name is confidential rather than reciting the name.
This bill would provide that the current legal name of the
petitioner shall be kept confidential by the court and not
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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.
COMMENT
1.Stated need for the bill
According to the author:
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.
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. AB 1121 would also
remove the expensive and burdensome newspaper publication
requirement for transgender people seeking legal name changes
and would provide that a name change that is uncontested must
be granted without a hearing.
2.Administrative procedure to alter birth certificate
Under existing law, a petition for a gender change must be heard
by the court and be accompanied by an affidavit from a
physician. The resulting court order is then submitted to the
State Registrar who issues an updated birth certificate. Two
years ago, AB 433 (Lowenthal, Ch. 718, Stats. 2011) eliminated
the option for individuals to file objections to a gender change
petition, and required an appropriate affidavit from a physician
to be regarded as conclusive proof of the gender change.
In addition to the process above, this bill would create an
administrative process by which California-born individuals who
have undergone a gender change may submit the required
documentation for the purposes of changing one's gender on a
birth certificate, directly to the State Registrar. By
eliminating the need for the court to review the petition, this
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bill would simplify the process for transgender individuals to
update the gender marker on their birth certificates, and allow
persons born in California, but now residing out of state to
update their birth certificate to match their gender remotely.
Arguably, because the affidavit of a physician attesting to the
gender transition must now be taken as conclusive proof of the
gender of a petitioner, and objections from individuals are no
longer permitted, the court's role in approving gender changes
is largely pro forma. The author argues that creating an
administrative option, "would streamline individuals' access to
corrected birth certificates and reduce the caseloads on our
state's overwhelmed courts. This will be particularly critical
for transgender individuals born in California and currently
residing outside the state, for whom it may not be possible or
affordable to travel back to California to attend a court
hearing. An administrative process that can be completed solely
by mail would be far more cost-effective and accessible for
those individuals. The current process for obtaining a court
order recognizing a person's legal gender transition would
remain available as an option for people living in California
but born in other states and for those who want extra assurance
that the change would be granted full faith and credit by other
states."
3.Name changes for transgender persons
For petitioners seeking a name change to conform a name to his
or her gender identity, this bill would eliminate the existing
publishing requirement, and require the court to maintain the
confidentiality of the proposed name. This bill would
additionally require the court to grant a name change without a
hearing for any name change where no written objection is filed.
In support of this bill, the author argues that privacy is
paramount to the protection of transgender persons seeking to
change their name:
The transgender community experiences a heightened level of
discrimination, harassment, and assault. By requiring a
transgender person to participate in the public forum that is
the current judicial process for legal name changes, we are
putting their safety at risk for no real benefit.
Capitol Resource Family Impact writes, in opposition, that
this bill creates "special privileges for a select segment of
society [which] will pose a significant public safety concern
for the rest of the public. The law would open the door for
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criminals, or any persons with other fraudulent intent, to
obtain a new identity simply by stating that his or her
perceived gender identity differs from the sex assigned to
them at birth."
In response, to these concerns, the author writes:
While the bill removes the publication requirement for
those name changes, the petition is signed under penalty
of perjury and a notice of an order to show cause would
still be required. It is also important to note that name
changes through marriage or domestic partnership do not
require newspaper publication, a hearing, or any kind of
public notice. Those name changes would seem to offer the
same public safety concerns, and a much less compelling
need for confidentiality. There is no public policy
reason that transgender people's name changes should have
to be significantly more public than those name changes,
especially considering the stigma and risk of violence
that transgender people unfortunately continue face in
our society.
Further, the name change petition already requires the
petitioner to indicate whether they are on parole or a
registered sex offender. Anyone on parole in California
must have permission from their parole officer before
they can complete a court-ordered name change, and name
changes for registered sex offenders are completely
entrusted to the discretion of the judge.
a) Granting of uncontested petitions without hearing
Under existing law the court has the authority to grant an
uncontested petition for a change of name without a
hearing. This bill would instead require that the court
must grant all uncontested petitions for change of name
without a hearing. The Civil Justice Association writes in
support that this "will help conserve precious judicial
resources. During a time when our court resources are
overburdened already, we should promote streamlining
measures such as AB 1121."
Given the current budget crisis facing the courts of this
state, it is unclear why a court would require a hearing
for a name change unless the court had some concern about
its purpose. The following amendment would preserve the
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court's discretion with respect to name changes in general,
but continue to require the court to grant uncontested
petitions without a hearing to persons seeking to change
their name to conform to their gender identity.
Suggested amendments:
1. On page 5, line 18, strike "shall" and insert "may"
2. On page 5, line 18, after "hearing." Insert: "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."
3. On page 8, line 23, strike "shall" and insert "may"
4. On page 8, line 24, after "granted." Insert: "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."
a) Confidential name changes
A National Transgender Discrimination Survey found that 90
percent of transgender people had experienced mistreatment
or discrimination at work or took actions to avoid such
discrimination. Nearly 47 percent of those surveyed lost
their jobs, were denied a promotion, or were denied a job
as a direct result of being transgender. The survey also
reported that hiring discrimination was rampant, and rates
of discrimination were higher for those whose driver's
license gender marker did not match their gender identity.
(Jaime M. Grant et. al., Injustice at Every Turn: A Report
of the National Transgender Discrimination Survey 12-15
(2011).)
Supporters of this bill argue that confidential name
changes will protect transgender persons from much of this
discrimination. Staff notes, however, that confidential
name changes can come with a host of problems. Individuals
lose their social security numbers, their credit history,
and drivers' licenses. Adult children may lose the ability
to collect inheritance. In short, confidential name changes
may negatively undermine a person's public record and
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identity. As such, they should be used as a last resort.
As drafted, this bill would require the court to issue a
confidential name change for a transgender petitioner, as
specified. The following amendment would instead require a
confidential name change only at a transgender petitioner's
request, and would provide a process for a person who had
undergone a confidential name change to request
documentation of that process from the court.
Suggested amendments:
1. On page 6, line 28, after "and" insert "at the
request of the petitioner"
2. On page 7, before line one insert: "Notwithstanding
subdivision (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."
4.Additional author's amendment
At the request of the Judicial Council, the author has agreed to
add a delayed operative date of July 1, 2014 to the provisions
in the bill that affect the court process in order to allow
sufficient time for the Judicial Council to adopt the necessary
revisions to the relevant name change forms.
Suggested amendment:
Delay the operative date of Sections one and two of this
bill to July 1, 2014.
Support : California Immigrant Policy Center; City of West
Hollywood; Civil Justice Association of California (CJAC);
Spectrum LGBT Center; two individuals
Opposition : Capitol Resource Family Impact
HISTORY
Source : Transgender Law Center; Equality California
Related Pending Legislation : SB 545 (Anderson) was
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substantially similar SB 1477 (Anderson, 2012). This bill is in
Senate Judiciary Committee.
Prior Legislation :
SB 1477 (Anderson, 2012) provided that when specified evidence
demonstrating a history of domestic violence against a minor is
included in a petition for a confidential name change for the
minor, the noncustodial parent need not be notified of the
hearing on the petition for the name change. This bill died in
the Assembly Appropriations Committee.
AB 433 (Lowenthal, Chapter 718, Statutes of 2011) authorized an
individual who has undergone gender transition, as specified, to
file a petition with the superior court in any county to seek a
judgment recognizing the change of gender, and required that the
physician's accompanying affidavit must be accepted as
conclusive proof of the gender change.
AB 1185 (Lieu, 2009) would have allowed an individual who has
undergone a sex change operation to obtain a new birth
certificate, by court order from his or her county of birth, in
addition to his or her county of residence. This bill was
vetoed by the Governor.
AB 1851 (Longville, 2000) would have allowed non-California
residents who were born in California to petition their county
of birth, rather than their county of residence, to obtain a new
birth certificate. This bill was vetoed by the Governor.
AB 194 (Longville, 2001) would have allowed non-California
residents who were born in California to petition their county
of birth, rather than their county of residence, to obtain a new
birth certificate. This bill was vetoed by the Governor.
Prior Vote :
Assembly Floor (Ayes 57, Noes 17)
Assembly Appropriations Committee (Ayes 12, Noes 5)
Assembly Judiciary Committee (Ayes 9, Noes 1)
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