BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 1577 (Atkins)
As Amended June 3, 2014
Hearing Date: June 24, 2014
Fiscal: Yes
Urgency: No
NR
SUBJECT
Certificates of death: gender identity
DESCRIPTION
This bill would require a person completing a certificate to
record the decedent's sex to reflect the decedent's gender
identity as reported by an informant, unless the person
completing the certificate is presented with other
documentation, or proof of clinical treatment for gender
transition, in which case the person completing the certificate
shall record the decedent's sex as that which corresponds to the
decedent's gender identity as indicated in that document.
This bill would provide that if a document is not presented and
a majority of persons who have equal rights to control the
disposition of the remains do not agree with the gender identity
of the decedent as reported by the informant, any one of those
persons may file a petition seeking an order of the court
determining who among those parties shall determine the gender
identity of the decedent.
This bill would additionally provide that a person completing
the death certificate in compliance with specified provisions of
this bill is not liable for any damages or costs arising from
claims related to the sex of the decedent as entered on the
certificate of death.
BACKGROUND
For many transgender people, living an authentic life means
changing their identity documentation to reflect the way they
(more)
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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. The
death of filmmaker and activist Christopher Lee in 2012 brought
to light problems funeral directors and coroners face when
creating a certificate of death for some transgender people.
The following excerpt is from the California Report in April of
this year:
Lee lived the last two decades of his life as a man. He
committed suicide in 2012 when he was 48. His friends were
left grieving not just his death, but what happened after
his death. They had explained to the coroner that Lee was
transgender. They turned over his driver's license with his
sex indicated with a capital "M." But when the death
certificate came back, Christopher was listed as Kristina.
Sex: female?
It's not uncommon for a transgender person to retain some
physical characteristics of the gender assigned to them at
birth even though they have transitioned to a new gender
identity?That can leave coroners in a quandary. Christopher
Lee was taking testosterone when he died. The Alameda
County medical examiner described the body at the autopsy:
A short mustache and beard. A receding hairline consistent
with male balding. And, female genitalia. That's why the
"F" ended up on the death certificate.
"We don't have a lot of leeway in that," says Lt. Riddic
Bowers of the Alameda County Coroner's Bureau. He says a
driver's license is not enough to override anatomy. An
updated birth certificate would work, but that requires a
court order. And until 2012 getting a court order meant
getting surgery.
"Barring that, we have to rely on the documentation that
exists, someone's existing birth certificate and their
correlating anatomical description," Bowers says. (April
Dembosky, Transgender Activist's Death Opens Political
Battle, The California Report, April 2014, found at <
http://www.californiareport.org /archive/R201404181630/b>
as of June 19, 2014.)
This bill, seeking to ensure accuracy of gender identity in
certificates of death, would authorize a funeral director or
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coroner to rely on information about a decedent's gender
identity from individuals other than family, would authorize the
coroner to rely on additional documents which may indicate a
decedent's gender identity, and would make other conforming
changes.
CHANGES TO EXISTING LAW
Existing law requires a certificate of death to include items
necessary to establish the fact of death, including:
full name, sex, color or race, marital status, name of spouse,
date of birth and age at death, birthplace, usual residence,
and occupation and industry or business of decedent;
date of death, including month, day, and year;
place of death;
full name of father and birthplace of father and mother;
informant; and
information related to the disposition of body, information
including information regarding the embalmer, funeral
director, and the date accepted for registration and signature
of local registrar. (Health & Saf. Code Sec. 102875(a).)
Existing law provides that the funeral director shall prepare
the certificate of death and obtain the required information
other than medical and health section data from the person or
source best qualified to supply this information. (Health & Saf.
Code Secs. 102780, 102790.)
Existing law allows a decedent, prior to death, to direct, in
writing, the disposition of his or her remains and specify
funeral goods and services to be provided. If the directions are
contained in a will, they shall be immediately carried out,
regardless of the validity of the will or of the fact that the
will may not be offered for probate until a later date. (Health
& Saf. Code Sec. 7100.1)
Existing law provides that, unless other directions have been
made by a decedent in writing such as a will, the right to
control the disposition of the remains of the decedent, the
location and conditions of interment, and arrangements for
funeral goods and services to be provided, vests in, and the
duty of disposition and the liability for the reasonable cost of
disposition of the remains devolves upon, the following in the
order named:
an agent under a power of attorney for health care who has the
right and duty of disposition, as specified;
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the competent surviving spouse;
the sole surviving competent adult child or children, as
specified, of the decedent;
the surviving competent parent or parents of the decedent, as
specified;
the sole surviving competent adult sibling(s) of the decedent,
as specified;
the surviving competent adult person or persons respectively
in the next degrees of kinship, as specified; and
the public administrator when the deceased has sufficient
assets. (Health & Saf. Code Sec. 7100.)
Existing law provides that if any persons that would otherwise
have equal rights to control the disposition of remains fail to
agree on a disposition, any person who has equal right to
control the disposition of the remains may file a petition in
the superior court seeking an order of the court determining who
among those parties will have the control of disposition of the
remains. (Health & Saf. Code Sec. 7105(c).)
This bill would require the person completing the certificate of
death to record the decedent's sex to reflect the decedent's
gender identity, as reported by the informant, unless the person
completing the certificate is presented with one of the
following documents, in which case the certificate shall
indicate the decedent's sex as that which corresponds to the
decedent's gender identity in the document:
birth certificate;
a driver's license;
a social security record;
a court order approving a name or gender change;
a passport,
an advanced health care directive; or
proof of clinical treatment for gender transition.
This bill would provide that if none of the above documents are
presented and the person with the right, or a majority of
persons who have equal rights, to control the disposition of the
remains are in disagreement with the gender identity reported by
the informant, the gender identity of the decedent recorded on
the death certificate shall be as reported by that person or
majority of persons.
This bill would provide that a person completing the death
certificate, as specified, is not liable for any damages or
costs arising from claims related to the sex of the decedent as
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entered on the certificate.
COMMENT
1.Stated need for the bill
According to the author:
California Health and Safety Code Section 102875 requires that
a variety of personal and medical data be included on
California death certificates. For example, death certificates
must list personal data such as the name, sex, race, and
marital status of the person who has died.
Health and Safety Code Section 102790 requires that a funeral
director obtain the information other than medical and health
section data from "The person or source best qualified to
supply this information." However, there is no statutory or
regulatory guidance on whether sex should be listed according
to their gender identity or the anatomy of the deceased. The
lack of guidance can create complications when friends and
family disagree about the decedent's gender.
AB 1577, the Respect After Death Act, will provide much-needed
clarity to the
authorities responsible for completing death certificates. The
bill clarifies that, for a transgender person who has passed
away, the "sex" information on the death certificate should
indicate the person's gender identity if the authority is
presented with documentation of that gender identity, such as
written instructions from the deceased person confirming their
wishes, an updated birth certificate or driver's license, or
evidence of medical treatment for gender transition. If none
of those documents are presented, the gender reported by the
person's legal next of kin will be used. The bill also
provides that the person completing the death certificate will
not be legally liable for any claims related to the
designation of the decedent's gender on the death certificate
as long as those procedures are followed.
2.Documentation supporting gender identity
This bill would require the person executing the certificate of
death to record the decedent's gender identity as reported by
the informant. Existing law allows for the funeral director to
obtain the information required to register a death from "the
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person or source best qualified to supply the information." In
many cases this will be a spouse, significant other, or friend
of the decedent. In opposition to this bill, The Capitol
Resource Family Institute argues that this bill would give an
acquaintance the legal authority to change person's gender after
death. Staff notes that under existing law the "best qualified"
person may already give the funeral director necessary
information. Thus, authorizing an "informant" to provide
information is arguably a clarification of existing law.
Specified individuals with the right to control the remains of
the decedent, such as the surviving spouse, children, parents,
or adult sibling(s) of the decedent and in that order, supersede
the authority of an informant. If there is more than one person
with an equal right to control, the majority of the class may
control the disposition of the remains. For example, if a
person was survived only by three adult children, those children
(or the majority of them if opinions differed) would have the
right to control the remains of the deceased over any wishes of
surviving siblings or next of kin.
This bill would maintain the hierarchy described above, but
would provide that specified documentation indicating a person's
gender identity would control over the wishes of the informant
or other persons with a right to control the remains of the
deceased. These documents would include: a birth certificate,
driver's license, passport, or social security record; a court
order approving a name or gender change, or proof of clinical
treatment for gender transition; or an advanced health care
directive.
The bill, however, does not provide any insight into how a
funeral director would make a gender determination if presented
with multiple documents from this list, with conflicting
information about the deceased's gender identity. The bill also
does not incorporate other legally recognized documents that
would offer insight to a person's gender identity and wishes
after death. Specifically, existing law allows a decedent,
prior to death, to direct the disposition of his or her remains
and specify funeral goods and services to be provided in
writing. If these directions are contained in a will, they must
be carried out, even if the will is otherwise invalid. (Health &
Saf. Code Sec. 7100.1.) Unlike the other types of
documentation, a writing by the decedent prior to death
instructing others on his or her post-death wishes, requires
little formality and is free to execute. Accordingly, the
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author should continue working with staff and stakeholders to
determine whether other types of documents which may indicate a
decedent's gender identity and preferences should also be
included, and whether there should be guidelines for funeral
directors in the event that more than one type of document with
conflicting information is presented.
3.Authorizing persons to petition the court to determine right
to determine gender identity
In the event that a document, as specified above, is not
provided and there are a majority of persons with equal rights
to control the disposition of the remains who cannot agree as to
the gender identity of the decedent, this bill would expressly
authorize any one of those persons to file a petition with the
court for a determination of the person who should determine the
gender identity of the decedent. This is similar to a provision
under existing law in which persons with a right to control the
remains of a decedent may petition the court to determine who
should have control over the disposition of the remains. (Health
& Saf. Code Sec. 7105(c).)
4.Immunity for persons completing certificates of death
This bill would provide that a person completing the death
certificate in compliance with the provisions of this bill is
not liable for any damages or costs arising from claims related
to the sex of the decedent as entered on the certificate of
death.
As a matter of policy, immunity provisions are generally
disfavored because they act to preclude a party from recovering
when he or she is injured. Liability acts not only to allow a
victim to be made whole, but to encourage appropriate compliance
with legal requirements. In this case, the immunity would
essentially act to protect an individual who follows the law.
While it is unclear how that individual would be liable for
following the requirements of this bill, the immunity provision
arguably codifies that a person is required to comply with this
bill.
Support : American Federation of State, County and Municipal
Employees, (AFSCME) AFL-CIO; California Communities United
Institute; California Teachers Association; City and County of
San Francisco; Civil Justice Association of California
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Opposition : Capitol Resource Family Impact
HISTORY
Source : Equality California; Transgender Law Center
Related Pending Legislation : AB 1121 (Atkins, Chapter 651,
Statutes of 2013) created, as of July 1, 2014, 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.
Prior Legislation :
AB 905 (Pan, Chapter 321, Statutes of 2011) added to the list of
persons authorized to take control of a decedent's remains the
person authorized to direct disposition indicated on a United
States Department of Defense Record of Emergency Data, DD Form
93 (DD Form 93).
SB 647 (Committee on Judiciary, Chapter 308, Statutes of 2011)
among other things, would add conservators of the person or
estate to the list of individuals with the right to control and
duty of disposition of remains.
Prior Vote :
Senate Health Committee (Ayes 7, Noes 1)
Assembly Floor (Ayes 62, Noes 5)
Assembly Appropriations Committee (Ayes 14, Noes 3)
Assembly Health Committee (Ayes 17, Noes 1)
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