BILL ANALYSIS Ó
AB 1121
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1121 (Atkins)
As Amended August 26, 2013
Majority vote
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|ASSEMBLY: |57-17|(May 9, 2013) |SENATE: |25-11|(September 3, |
| | | | | |2013) |
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Original Committee Reference: JUD.
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
reflecting a change of sex without a court order for any
person born in California who has undergone clinically
appropriate treatment for the purpose of gender transition and
submits a signed affidavit from a licensed 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 any change in name if
accompanied by a court order for a change of name.
2)Provides that if a petition for name change seeks to conform
the petitioner's name to his or her gender identity and no
objection is timely filed, then the court shall grant the
petition without a hearing.
3)Provides that if a petition for change of name is sought in
order to conform the petitioner's name to his or her gender
identity, the action for a change of name is exempt from
newspaper publication requirements, and, at the request of the
petitioner, the petition and court order shall indicate the
proposed name is confidential instead of reciting the name.
4)Provides 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.
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5)Provides that 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.
6)Delays the operative effect of these provisions until July 1,
2014.
The Senate amendments do all of the following: 1) Clarify that
the court retains discretion over name change petitions
generally, but shall grant uncontested petitions without a
hearing to persons seeking to change their name to conform with
their gender identity; 2) Require a name change to be
confidential only if the transgender petitioner requests it; 3)
Requires the affidavit submitted to the State Registrar be
signed by a licensed physician; 4) Clarify that the Department
of Public Health can issue new birth certificates without a
court order to reflect an individual's corrected gender under
Health and Safety Code Sections 103440 and 103445; and 5) Delay
the operative effect of this bill until July 1, 2014.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
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:
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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. (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 affadavit 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
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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.
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. 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.
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. 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.
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 bill
exempts from the newspaper publication requirement only those
petitions seeking a name change to conform the petitioner's name
to his or her gender identity.
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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, presumably because these crime victims
have a strong basis to fear for their continued safety, thus
warranting protection. According to the author, 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 requires that the affidavit submitted to the
State Registrar be signed by a licensed physician, clarifies the
Department of Public Health's ability to issue a new birth
certificate to reflect an individual's corrected gender under
existing law, and delays the operative date of these provisions
until July 1, 2014, in order to allow the Judicial Council
sufficient time to update relevant forms affected by these
changes.
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334
FN: 0001973