BILL ANALYSIS
AB 1185
Page 1
Date of Hearing: May 12, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1185 (Lieu) - As Introduced: February 27, 2009
SUBJECT : BIRTH CERTIFICATES: VENUE FOR ISSUANCE
KEY ISSUE : JUST AS CALIFORNIA RESIDENTS MAY DO TODAY, SHOULD
INDIVIDUALS BORN IN CALIFORNIA BUT NOW LIVING ELSEWHERE, WHO
HAVE SURGICALLY CHANGED THEIR GENDER, BE PERMITTED TO OBTAIN A
REVISED BIRTH CERTIFICATE?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
Existing law allows individuals born, and currently residing, in
California, who have surgically changed their gender, to obtain
a new birth certificate from their county of residence, amended
to reflect their revised gender and any change of name.
However, there is no similar option for such individuals who,
while born in California, have since moved out of the state.
This non-controversial bill, sponsored by Equality California,
permits individuals born in California, but now living outside
the state, who have surgically changed their gender, to obtain a
new birth certificate from their county of birth reflecting
their change of gender and any name change. There is no known
opposition.
SUMMARY : Provides that an individual who has undergone a sex
change operation may obtain, by court order, a new birth
certificate reflecting his or her change of sex and any name
change requested, from his or her county of birth, in addition
to his or her county of residence.
EXISTING LAW provides that individuals who have undergone a sex
change operation may obtain, by court order, a new birth
certificate reflecting the change of sex and any name change
from his or her county of residence. (Health and Safety Code
Section 103425.)
COMMENTS : In 1977, California became the first state in the
nation to permit individuals to obtain a new birth certificate
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after undergoing a surgical sex change. In order to obtain the
new birth certificate, a transgender individual must first go to
court in his or her county of residence seeking a court order
for a new birth certificate reflecting the change of gender and
any change of name. That court process, however, requires that
the individual be a current resident of California. The process
cannot be used by those who were born in California, but now
live elsewhere. This bill allows anyone who has a California
birth certificate to petition the court in his or her county of
birth for a new birth certificate reflecting his or her new
gender and new name.
According to the author:
Current law allows a person born in California who has
undergone sex reassignment surgery to petition the
superior court to obtain a new birth certificate
reflecting a change of gender and any associated name
change. However, the law permits a petition for the
issuance of a new birth certificate to be filed only
in the superior court in the county in which the
petitioner resides. This restriction arbitrarily
discriminates against transgender people born in
California but now living outside the state, who have
otherwise complied with the law, in accessing accurate
identity documentation.
Birth certificates form the foundation of our everyday
identity documents, including drivers license, social
security cards, and passports. Having accurate
documentation is necessary to function in our society.
Identity is required for opening bank accounts,
traveling, establishing employment, and even for basic
purchases. When the gender on a birth certificate
results in the inability to change basic identifying
documents it can be a traumatic and frustrating
experience.
The bill's sponsor adds that this bill "will end an unnecessary
limitation for California-born transgender people to accessing
proper identity documentation."
A recent appellate court decision found California's current
statutory scheme, which limits revised birth certificates to
California residents only, to be unconstitutional . Just last
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month, a California appellate court determined that California's
refusal to issue new birth certificates to individuals who
underwent gender reassignment surgery and who, while born in
California, now reside elsewhere, violates the Privileges and
Immunities Clause of the United States Constitution. (Somers v.
Superior Court (2009) 172 Cal.App.4th 1407.) The court in that
case held that the requirement that a person seeking a new birth
certificate file a petition in his or her county of residence
effectively denies the right to an amended birth certificate to
California-born transgender individuals who now reside outside
of California. The court found that this restriction penalizes
individuals for moving outside of California and found no
compelling state interest in treating California-born
transgender individuals residing out of state differently from
California-born transgender individuals residing in California.
Furthermore, the court did not even find any rational basis for
this disparate treatment.
Prior Legislation : AB 194 (Longville, 2001), which was nearly
identical to the current bill, was vetoed by Governor Gray Davis
who saw no compelling reason to expand existing law.
AB 1851 (Longville, 2000), which contained a similar provision
to this bill, was also vetoed by Governor Davis.
REGISTERED SUPPORT / OPPOSITION :
Support
Equality California (sponsor)
Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334