Date of Hearing: August 4, 2020

ASSEMBLY COMMITTEE ON HEALTH

Jim Wood, Chair

SBPCA Bill Id:SB 741

Author:(Galgiani) – As Amended Ver:July 27, 2020

SENATE VOTE: 30-8

SUBJECT: Change of gender and sex identifier.

SUMMARY: Recasts and revises the provisions in existing law relating to new birth certificates that provide for a change in gender to include the term “sex identifier” and to specify that a person who was issued a birth certificate by this state, rather than a person born in this state, may obtain a new birth certificate. Authorizes a person to file a petition with the superior court for a court order to issue a new marriage license and certificate, confidential marriage license and certificate, or birth certificate for their minor or adult child to reflect the person’s change in gender and sex identifier to female, male, or nonbinary. Authorizes a person who does not reside in this state to file a petition as previously described if the person lives in a jurisdiction that does not provide these changes by court order and the person is also seeking to change their birth certificate, marriage license and certificate, confidential marriage license and certificate, or the birth certificate of their legal child that was issued by this state. Provides a process for parties who are also identified on these vital records to be given notice and an opportunity to respond to the petition. Specifically, this bill:

Authorizes an application for change of name to be made to a superior court for a person whose name is proposed to be changed and who does not reside in this state if the person whose name is proposed to be changed resides in a jurisdiction that does not provide name changes by court order and the person is seeking to change their name on at least one of the following documents:
1. A birth certificate that was issued in this state to the person whose name is proposed to be changed;
2. A birth certificate that was issued within this state to the legal child of the person whose name is proposed to be changed; or,
3. A marriage license and certificate or a confidential marriage license and certificate that was issued within this state to the person whose name is proposed to be changed.
Specifies that the superior court in the county where the birth under 1) a) and b) above occurred is the proper venue for the proceeding described in 1) above. Requires the name change to be adjudicated in accordance with existing California law.
Requires, if the person seeking the name change does not live in the county where the petition is filed pursuant to 1) above, the copy of the order to show cause to be published in a newspaper of general circulation in the county of the person’s residence. Specifies if a newspaper is not published in the county, a copy of the order to show cause must be posed by the clerk of the court in the county of the person’s residence in three of the most public places in the county.
Authorizes a petition seeking a judgement recognizing the change of gender and sex identifier to female, male, or nonbinary to be made to a superior court in this state, even if the person whose gender and sex identifier is proposed to be changed does not reside in this state if both of the following apply:
1. The person whose gender and sex identifier is proposed to be changed resides in a jurisdiction that does not provide judgement recognizing the change of gender and sex identifier to female, male, or nonbinary to conform to the petitioner’s gender identity by court order; and,
2. The person is seeking to change the designation to reflect their gender on at least one of the following documents:
  1. A birth certificate that was issued within this state to the person whose gender and sex identifier is proposed to be changed;
  2. A birth certificate that was issued within this state to the legal child of the person whose gender and sex identifier is proposed to be changed; or,
  3. A marriage license and certificate or confidential marriage license and certificate that was issued within this state to the person whose gender and sex identifier is proposed to be changed.
Requires the State Registrar to issue a new birth certificate for the minor child or children who have a birth certificate issued by this state without a further court order when a parent submits all of the following directly to the Registrar:
1. An application for a new birth certificate for their minor child or children reflecting the change of the designation of the petitioner as mother, father, or parent, and if applicable, any change of name of the parent;
2. A copy of at least one of the following documents;
  1. The court-ordered change of gender;
  2. The parent’s new birth certificate reflecting a change of gender and sex identifier;
  3. A government-issued identity document reflecting the parent’s change of gender and sex identifier; or,
  4. An affidavit attesting under penalty of perjury that the request for a change of the designation of the petitioner as mother, father, or parent is to conform to the person’s gender identity and is not made for any fraudulent purpose.
3. The required fee described in 29) below; and,
4. A copy of the court-ordered change of name, if applicable.
Requires the new birth certificate to reflect the change of the designation of the parent whose gender and sex identifier has been changed as mother, father, or parent, and, if applicable, any change of name that the parent has legally obtained.
Requires the State Registrar to issue a new birth certificate for an adult child who has a birth certificate issued by this state without a further court order when the parent submits all of the following to the State Registrar:
1. An application for a new birth certificate for their adult child reflecting the change of the designation of the petitioner as mother father, or parent, and if applicable, any change in name of the parent;
2. A copy of at least one of the following documents:
  1. The court-ordered change of gender;
  2. The parent’s new birth certificate reflecting a change of gender and sex identifier;
  3. A government-issued identity document reflecting the parent’s change of gender and sex identifier; and,
  4. An affidavit attesting under penalty of perjury that the request for a change of the designation of the petitioner as mother, father, or parent is to conform to the person’s gender identity and is not made for any fraudulent purpose;
3. A notarized letter from the adult child stipulating to the change in the adult child’s birth certificate;
4. The fee described in 29 ) below; and,
5. A copy of the court-ordered change of name, if applicable.
Requires the notarized letter from the adult child to be accepted if it contains substantially the following language: “I, (adult child’s full name) stipulate to an issuance of a new birth certificate for me that reflects my parent’s legal gender and name.”
Requires the new birth certificate to reflect the change of the designation of the parent whose gender and sex identifier has been changed as mother, father, or parent, and if applicable, any change of name that the parent has legally obtained.
Requires a county clerk to issue a new marriage license and certificate or confidential marriage license and certificate for any person that was issued those documents from their county without a further court order when the person submits all of the following directly to the State registrar, which the State Registrar must send as a notice to the county clerk:
1. An application from the spouse who has legally changed their gender and sex identifier for a new marriage license and certificate or confidential marriage license and certificate reflecting the change to the designation of the person as bride, groom, or having neither box checked on those documents, and if applicable, any change of name of the spouse;
2. A copy of at least one of the following documents:
  1. The court-ordered change of gender;
  2. The spouse’s new birth certificate reflecting a change of gender and sex identifier;
  3. A government-issued identity document reflecting the spouse’s change of gender and sex identifier; or,
  4. An affidavit attesting under penalty of perjury that the request for a change of the designation of the petitioner as bride, groom or having neither box checked is to conform to the person’s gender identity and is not made for any fraudulent purpose.
3. A notarized letter from the spouse who is not requesting the new marriage license and certificate or confidential marriage license and certificate stipulating to the change in the documents;
4. The required fee; and,
5. A copy of the court-ordered change of name, if applicable.
Specifies that the notarized letter from the spouse who is not requesting the new marriage license and certificate or confidential marriage license and certificate will be accepted if it contains substantially the following language; “I (spouse’s full name), stipulate to an issuance of a new marriage license and certificate or confidential marriage license and certificate for me that reflects my spouse’s legal gender and sex identifier an name.”
Requires the new document provided pursuant to 10) above to reflect the change to the designation of the person as bride, groom, or having neither box checked, and if applicable, any change of name that the spouse has legally obtained.
Requires a court-ordered change of gender or name to include a change of gender or name accomplished by an order of a court of this state, another state, the District of Columbia, any territory of the United States, or any foreign court.
Repeals and recasts the provisions in existing law regarding a petition for a court order to recognize a change in the petitioner’s gender to include the following provisions:
1. To recognize a change in the petitioner’s sex identifier;
2. To direct the issuance of new administrative documents to reflect those changes;
3. To require the petition to be signed by the spouse who shares the marriage license and certificate or confidential marriage license and certificate that would be changed by granting the petition if the spouse is living and capable of signing the petition;
4. To specify that a petition that requests a new birth certificate for an adult child that does not include the signature of the adult child will not be granted with respect to the new birth certificate for that child if the child is living and capable of providing a signature;
5. To specify if the person whose gender is to be changed requests the issuance of a new birth certificate for their minor child, the petition need not include the signature of the child if the child is under 18 years of age; and,
6. To specify, in the case of a minor requesting a gender change in juvenile court, if the petition does not include a signature by a guardian, that the court must make an order directing the person or persons whose required signatures are not on the petition to show cause why the petition for a court order to recognize a change in the minor’s gender to female, male, or nonbinary should not be granted by filing a written objection. Specifies, if a timely objection is filed by a parent who objects to changes to their minor child’s birth certificate, after holding a hearing, the court may deny the petition if it finds that the change in gender is not in the best interest of the minor.
Requires, if a petition for a change of gender does not include a signature of the petitioner’s spouse, the court to make an order reciting the filing of the petition, the proposed changes to the petitioner’s marriage license and certificate or confidential marriage license and certificate, and the name of the person by whom it is filed. Requires the order to direct the spouse of the petitioner who appears on the documents to make known any objection to the changes requested on the documents, by filing a written objection and if no objection showing good cause to oppose the changes to the document is timely filed, the court to, without a hearing, enter the order that the gender recognition is granted.
Requires, if a judgement for a change of gender includes a new birth certificate for the petitioner and the petitioner has a birth certificate issued by this state, a certified copy of the judgment ordering the new birth certificate to be filed by the petitioner with the State Registrar within 30 days from the date of the judgement. Requires the State Registrar, upon receipt of the judgment and the required fee, to establish a new birth certificate for the petitioner.
Requires the new birth certificate to reflect the gender of the petitioner and any name change as specified in the court order. Prohibits any reference to be made in the new birth certificate, or its form in any way to indicate that it is not the original birth certificate of the petitioner.
Requires, if a judgement for a change of gender includes an order for a new marriage license and certificate or new confidential marriage license and certificate, and the original document was issued within this state, a certified copy of the judgment of the court ordering the new document to be filed by the petitioner with the State Registrar, along with the required fee within 30 days of the date of the judgment. Requires the State Registrar to send a notice to the county clerk in which the original document was issued along with the fee. Requires the county clerk, upon receipt, to issue a new marriage license and certificate or confidential marriage license and certificate for the petitioner.
Requires, if a new marriage license and certificate or confidential marriage license and certificate is requested pursuant to 22) below, the new document to reflect any change in the designation of the person as bride, groom, or having neither box checked as requested, and to reflect any change of name, as specified by the court order. Requires, if the “New Names” section of the original marriage license refers to the person whose gender and sex identifier was changed does not match any change of name as specified in the court order, then the “New Names” section for that person to be left blank on the new document. Specifies that a new document does not entitle the parties to the marriage to change their names at the time of the issuance of a new marriage license and certificate or new confidential marriage license and certificate. Specifies that the new license or certificate will not reference or in any way indicate, that it is not the original marriage license or certificate or original confidential marriage license and certificate of the petitioner.
Requires a petitioner, if a judgement for a change of gender includes an order for a new birth certificate for the petitioner’s child, and if the child has a birth certificate issued by this state, to file a certified copy of the judgment ordering the new birth certificate with the State Registrar within 30 days of the date of the judgment. Requires the State Registrar, upon receipt of the order and the required fee, to establish a new birth certificate for the petitioner’s child.
Requires a new birth certificate for a petitioner’s child to reflect the change of the designation of the petitioner as mother, father, or parent, and any change of name as applicable. Prohibits any reference in the new birth certificate from indicating that it is not the original birth certificate of the petitioner’s child.
Requires, in lieu of separate proceedings, a single petition to be filed with the superior court to change the petitioner’s name and recognize the change to the petitioner’s gender and sex identifier and, if requested, to order the issuance of a new birth certificate, marriage license and certificate, confidential marriage license and certificate, or birth certificate of the petitioner’s child. Requires the court, with respect to a single petition, to comply with both of the following:
1. To not require the order to show cause to include the petition to recognize the change of gender and sex identifier; and,
2. The provisions described in 14) above regarding a petition for a change of gender, if there is a request for a new marriage license and certificate, confidential marriage license and certificate, or for a new birth certificate for any child of the petitioner.
Requires a certified copy of the judgment of the court issued pursuant to 22) above to be filed by the petitioner with the State Registrar within 30 days, if any of the following conditions are met:
1. The judgment includes an order for a new birth certificate and the petitioner has a birth certificate issued by this state;
2. The judgment includes an order for a new marriage license and certificate or new confidential marriage license and certificate and the original document was issued in this state; or,
3. The judgment includes an order for a new birth certificate for the petitioner’s child and the original was issued in this state.
Requires the State Registrar, upon receipt of a certified copy of a judgment of the court pursuant to 22) above, to establish a new birth certificate as specified, and requires the State Registrar to direct the county clerk to issue a new marriage license and certificate or confidential marriage license and certificate.
Specifies that the new birth certificate, marriage license and certificate, or confidential marriage license and certificate established by this bill supplants any such document previously registered for the registrant, and will become the only such document open to public inspection.
Requires the application and supporting affidavits filed when requesting the new documents specified in 25) above, to be filed with the original record of birth or marriage, and to remain as a part of the State Registrars records, or the county clerk, as appropriate. Specifies that all records and information, other than the newly issued birth certificate or marriage license and certificate, are available only upon written request of the registrant or an order of a court of record. Specifies that nothing in this bill changes the confidentiality of or access to a confidential marriage certificate.
Requires the State Registrar, when a new birth certificate is established, to transmit copies of the new birth certificate to the local registrar and the county recorder whose records contain copies of the original, and the county clerk or local registrar to forward copies of the original to the State Registrar, if it is practical for the local officials to do so. Requires the local officials, if it is not practical, to effectually seal a cover over the copy of the original certificate in a manner as not to deface or destroy the copy and forward a verified statement of the action to the State Registrar. Specifies that thereafter, the information in the record is only available upon written request of the registrant or on order of a court of record.
Requires a county clerk, after a new marriage license and certificate has been issued, to transmit the new document to the county recorder. Requires the State Registrar to direct the county recorder to effectually seal a cover over the original marriage certificate in a manner as not to deface or destroy the copy and to file the new license and certificate in its place. Specifies that thereafter the information contained in the record is only available upon written request of the registrant or on order of a court of record. Provides for a similar process with a confidential marriage license and certificate.
Lowers the percentage of the fees collected for requests for fetal death records, birth certificates, and marriage records that is transmitted to the State Registrar, from 45% to 35%.
Makes other technical and conforming changes.

EXISTING LAW:

Establishes the Department of Public Health (DPH) to, among other responsibilities, serve as State Registrar relating to vital records and health statistics.
Requires the State Registrar, local registrar, or county recorder, upon request and payment of a fee, to supply an applicant with a certified copy of the record of a birth, fetal death, death, marriage, or marriage dissolution registered with the official.
Permits a person to file a petition with the superior court in any county seeking a judgment recognizing the change of gender to female, male, or nonbinary. Requires the judgement, if requested, to include an order that a new birth certificate be prepared for the person reflecting the change of gender and any change of name accomplished by an order of a court, as specified.
Requires a certified copy of the decree ordering the new birth certificate, if the judgment includes an order for a new birth certificate and if the petitioner was born in this state, to be filed with the State Registrar within 30 days from the date of the decree. Requires the State Registrar, upon receipt of the certified copy and a specified fee, to establish a new birth certificate for the petitioner.
Requires the new birth certificate to reflect the gender of the petitioner, as specified in the judgment of the court, and reflect any change of name, as specified in the court order. Prohibits any reference from being made in the new birth certificate, nor its form in any way indicating, that it is not the original birth certificate of the petitioner.
Requires the new birth certificate to supplant any previously registered birth certificate and be the only one open to public inspection. Requires all records other than the newly issued certificate to be available only upon written request of the registrant or a court order.

FISCAL EFFECT: As amended July 27, 2020, this bill has not been analyzed by a fiscal committee.

COMMENTS:

PURPOSE OF THIS BILL. According to the author, current law allows transgender Californians to petition courts to change their name and gender to conform to their gender identity. The law then allows such a person’s old birth certificate to be sealed and a new one issued as an original to both protect the person’s privacy and respect their identity. However, according to the author, there is no such provision in the law as to the treatment of transgender people’s marriage certificates and the birth certificates of their children. The author concludes that this bill will help to protect the privacy of transgender people and prevent discrimination when a transgender person enrolls their child in school, applies for a loan, or seeks to make medical decisions on behalf of an incapacitated spouse.
BACKGROUND.
1. State Registrar. The Office of Vital Records within DPH is the State Registrar for the State of California. The State Registrar is charged with the responsibility of maintaining a uniform system for registration and a permanent central registry with a comprehensive and continuous index for all birth, death, fetal death, marriage, and dissolution certificates registered for vital events which occur in California. Certified copies of these records are available from the State Registrar which maintains a permanent, public record of every birth and death that has occurred in California since July 1905, and has more than 50 million records on file. The State Registrar is a separate entity from local registrars and county recorders, but has supervisory power over local registrars.
2. Local Registrar and County Recorder. Health officers of local health departments serve as the local registrars for their respective health jurisdiction, and perform all the duties of a local registrar of births and deaths. Before birth and death records are registered with the State Registrar, the records are first registered by the county health department and recorded by the county recorder’s office in the local jurisdiction where the birth or death took place. The county health department keeps birth and death records for current year events and one year prior, but records for all years are maintained by the county recorder. If an amendment is made to a vital record the State Registrar sends the updates to the county recorder. An amendment to any vital records results to an added page of the record. This bill intends to seal the original record and subsequently create a new record with the updated name and gender of the individual who petitioned for a change in gender. For the birth certificate of the child or children of the individual granted a change in gender, this process can be completed by the State Registrar in the same existing process used to seal and establish a new birth or death record. Marriage certificates, however, undergo a different process.
3. Marriage License and Certificates. A marriage license is issued by the county clerk or county recorder. The marriage license is the document an individual uses to ‘apply’ to be married. According to a county clerk, a couple obtains a marriage license and then has 90 days to get married. On the marriage license, there are fields for ‘first person data’ and ‘second person data’ and option sections for each person to signify if the person is a bride or a groom, if they wish. Once the couple submits the marriage license back to the county clerk, the county clerk and/or county recorder is responsible for registering the marriage license to obtain a marriage certificate. In order to change the name of one or both individuals, there is also a field on the marriage license to do so, without a need to go through with the official name change process in civil court.

After the marriage license is registered and a certificate is obtained, the original record gets transmitted and stored with the State Registrar. Any changes that need to be made to a marriage certificate prior to this bill would be processed by the county clerk or county recorder as an amendment, meaning that the record would contain an extra page and would be inclusive of the whole record of the marriage.

This bill intends to establish a new marriage license and certificate for an individual who has been granted an official change in gender. This new marriage license and certificate is intended to be the only record and is intended to reflect gender changes (if the person wishes to change the optional ‘bride’ or ‘groom’ selections) and any associated name changes.

1. Vital Record Updates for Transgendered and Gender Nonconforming Californians. The ability to change vital record documentation is beneficial to the well-being of a person’s life. Within the transgender and gender nonconforming communities, employment, marriage and inheritance rights, and more can be at severe risk when their vital records do not match their gender identity. A 2015 U.S. survey by the National Center for Transgender Equality showed that only 11% of respondents had vital record documents that matched their preferred name and gender. Additionally, this study revealed that over one third of these respondents have had negative experiences when presenting identity document with a name or gender that did not match their gender presentation. A National Transgender Discrimination Survey from 2011 found that 90% of transgender people experienced mistreatment or discrimination at work or took actions to avoid such discrimination. Forty-seven percent of those surveyed lost their jobs, were denied a promotion, or were denied a job as a direct result of being transgender. Creating a process for any person changing their gender and name to also update all of their vital records documentation is one way to improve the health and well-being of these individuals.

SUPPORT. According to the sponsor, Equality California, this bill would simply align the process for updating transgender people’s marriage certificates and the birth certificates of their children. Equality California concludes that this bill will help to protect the privacy of transgender people and prevent discrimination when a transgender person enrolls their child in school, applies for a loan, or seeks to make medical decisions on behalf of an incapacitated spouse.
DOUBLE REFERRAL. This bill was heard in the Assembly Judiciary Committee on June 25, 2019 and passed with a 9-2 vote.
PREVIOUS LEGISLATION.
1. SB 179 (Atkins), Chapter 853, Statutes of 2017, provides for a third gender option on the state driver’s license, identification card, and birth certificate; restructures the process for individuals to change their name to conform with their gender identity; and creates a new procedure for an individual to secure a court-ordered change of gender.
2. AB 1951 (Gomez) Chapter 334, Statutes of 2014, requires the State Registrar to modify birth certificates to recognize same-sex couples, allowing for a gender neutral option on the certificate identifying a "parent."
3. AB 1121 (Atkins), Chapter 651, Statutes of 2013, permits a person to file a petition with the superior court in any county seeking a judgment recognizing the change of gender to female, male, or nonbinary. Requires the judgement, if requested, to include an order that a new birth certificate be prepared for the person reflecting the change of gender and any change of name accomplished by an order of a court, as specified.
4. AB 433 (Lowenthal), Chapter 718, Statutes of 2011, authorizes an individual who has undergone certain medical procedures, as specified, to file a petition with a superior court 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.

REGISTERED SUPPORT / OPPOSITION:

Support

Equality California (sponsor)

Family Health Centers of San Diego

Human Rights Campaign
Lambda Legal
Los Angeles LGBT Center

Opposition

None on file.

Analysis Prepared by: Lara Flynn / HEALTH / (916) 319-2097

SB 741: Change of gender and sex identifier.

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