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SB-741 Change of gender.(2019-2020)



Current Version: 04/30/19 - Amended Senate         Compare Versions information image


SB741:v97#DOCUMENT

Amended  IN  Senate  April 30, 2019
Amended  IN  Senate  March 27, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Senate Bill
No. 741


Introduced by Senator Galgiani

February 22, 2019


An act to amend Section 1276 of the Code of Civil Procedure and to amend Sections 103425, 103430, 103435, 103440, 103445, and 103725 of, and 103440 of, and to amend the heading of Article 7 (commencing with Section 103425) of Chapter 11 of Part 1 of Division 102 of, the Health and Safety Code, relating to vital records.


LEGISLATIVE COUNSEL'S DIGEST


SB 741, as amended, Galgiani. Change of gender.
Existing law authorizes 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. The judgment, upon request, is required to include an order that a new birth certificate be prepared for the person reflecting the change of gender and any change of name that was ordered in specified jurisdictions.
This bill would authorize a person, as part of a proceeding on a petition for a judgment recognizing the change of gender, to also seek an order to revise a marriage license and certificate of the petitioner or a birth certificate of the petitioner’s child to reflect or children to include the petitioner’s change of gender. The bill would authorize a spouse of the petitioner to object to a revision of the marriage license and certificate by filing a written objection and appearing at the hearing on the petition. The court may examine the petitioner and spouse under oath and may only deny the request to revise the marriage license and certificate if the court finds the change in gender or name request is fraudulent. The bill would require the court to grant the request to revise the marriage license and certificate without a hearing if the spouse does not object by filing a written objection. The bill would require the court to deny the petitioner’s request to revise the birth certificate of the petitioner’s child who is 18 years of age or older, unless the petition includes the adult child’s signed stipulation. The bill would require the court to grant the petitioner’s request to revise the birth certificate of the petitioner’s child who is under 18 years of age, unless the court finds that the change in gender or name is fraudulent.
The the request is fraudulent. The bill would make conforming procedural changes to the issuance of a revised birth certificate and marriage certificate. The bill would impose a fee for the establishment of a new record of marriage under these provisions. license and certificate. The bill would authorize a county to establish a fee to establish a new marriage license and certificate under these provisions, not to exceed an amount as specified.
The bill would make technical, nonsubstantive changes to use gender-neutral language.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 1276 of the Code of Civil Procedure is amended to read:

1276.
 (a) All applications for change of names shall be made to the superior court of the county where the person whose name is proposed to be changed resides, except as specified in subdivision (e), either (1) by petition signed by the person or, if the person is under 18 years of age, by one of the person’s parents, by any guardian of the person or as specified in subdivision (e), or, if both parents are deceased and there is no guardian of the person, then by some near relative or friend of the person or (2) as provided in Section 7638 of the Family Code.
The petition or pleading shall specify the place of birth and residence of the person, his or her the person’s present name, the name proposed, and the reason for the change of name.
(b) In a proceeding for a change of name commenced by the filing of a petition, if the person whose name is to be changed is under 18 years of age, the petition shall, if neither parent of the person has signed the petition, name, as far as known to the person proposing the name change, the parents of the person and their place of residence, if living, or if neither parent is living, near relatives of the person, and their place of residence.
(c) In a proceeding for a change of name commenced by the filing of a petition, if the person whose name is proposed to be changed is under 18 years of age and the petition is signed by only one parent, the petition shall specify the address, if known, of the other parent if living. If the petition is signed by a guardian, the petition shall specify the name and address, if known, of the parent or parents, if living, or the grandparents, if the addresses of both parents are unknown or if both parents are deceased, of the person whose name is proposed to be changed.
(d) In a proceeding for a change of name commenced by the filing of a petition, if the person whose name is proposed to be changed is 12 years of age or older, has been relinquished to an adoption agency by his or her the person’s parent or parents, and has not been legally adopted, the petition shall be signed by the person and the adoption agency to which the person was relinquished. The near relatives of the person and their place of residence shall not be included in the petition unless they are known to the person whose name is proposed to be changed.
(e) All petitions for the change of the name of a minor submitted by a guardian appointed by the juvenile court or the probate court, or by a court-appointed dependency attorney appointed as guardian ad litem shall be made pursuant to rules adopted under Section 326.5 of the Welfare and Institutions Code. All petitions for the change of name of a nonminor dependent may be made in the juvenile court.
(f) If the petition is signed by a guardian, the petition shall specify relevant information regarding the guardianship, the likelihood that the child will remain under the guardian’s care until the child reaches the age of majority, and information suggesting that the child will not likely be returned to the custody of his or her the child’s parents.

SECTION 1.SEC. 2.

 The heading of Article 7 (commencing with Section 103425) of Chapter 11 of Part 1 of Division 102 of the Health and Safety Code is amended to read:
Article  7. Revision of Birth and Marriage Records to Reflect Change of Gender

SEC. 2.SEC. 3.

 Section 103425 of the Health and Safety Code is amended to read:

103425.
 (a) A person may file a petition with the superior court in any county seeking a judgment recognizing the change of gender to female, male, or nonbinary.
(b) If requested, the judgment shall 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 of this state, another state, the District of Columbia, or any territory of the United States.
(c) Subject to the requirements of Section 103430, if requested, the judgment shall include an order that a new marriage license and certificate be prepared for the person reflecting the change of gender in “first person data” or “second person data” on the marriage license and certificate and any change of name accomplished by an order of a court of this state, another state, the District of Columbia, or any territory of the United States.
(d) Subject to the requirements of Section 103430, if requested, the judgment shall include an order that a new birth certificate be prepared for the person’s child or children reflecting the change of gender to the designation of the person as mother, father, or parent and any change of name of the petitioner accomplished by an order of a court of this state, another state, the District of Columbia, or any territory of the United States.

SEC. 3.SEC. 4.

 Section 103430 of the Health and Safety Code is amended to read:

103430.
 (a) A petition for a court order to recognize a change in the petitioner’s gender as female, male, or nonbinary shall be accompanied by an affidavit from the petitioner and a certified copy of the court order changing the petitioner’s name, if applicable. The petitioner’s affidavit shall be accepted as conclusive proof of gender change if it contains substantially the following language: “I, (petitioner’s full name), hereby attest under penalty of perjury that the request for a change in gender to (female, male, or nonbinary) is to conform my legal gender to my gender identity and is not for any fraudulent purpose.”
(b) (1) Except as provided in subdivisions (i) and (k), the court shall grant the petition without a hearing if no written objection is timely filed within 28 days of the filing of the petition.
(2) (A) If an objection showing good cause is timely filed, the court may set a hearing at a time designated by the court. Objections based solely on concerns over the petitioner’s actual gender identity or gender assigned at birth shall not constitute good cause.
(B) At the hearing, the court may examine under oath the petitioner and any other person having knowledge of the facts relevant to the petition. At the conclusion of the hearing, the court shall grant the petition if the court determines that the petition is not made for any fraudulent purpose.
(c) If the judgment includes an order for a new birth certificate and if the petitioner was born in this state, a certified copy of the decree of the court ordering the new birth certificate, shall, within 30 days from the date of the decree, be filed with the State Registrar. Upon receipt thereof together with the fee prescribed by Section 103725, the State Registrar shall establish a new birth certificate for the petitioner.
(d) The new birth certificate shall reflect the gender of the petitioner, as specified in the judgment of the court, and shall reflect any change of name, as specified in the court order, as prescribed by Section 103425. No reference shall be made in the new birth certificate, nor shall its form in any way indicate, that it is not the original birth certificate of the petitioner.
(e) If the judgment includes an order for a new marriage license and certificate and the marriage license and certificate was issued from this state, a certified copy of the decree of the court ordering the new marriage license and certificate, shall, within 30 days from the date of the decree, be filed with the State Registrar. county in which the marriage license and certificate was issued. Upon receipt thereof, together with the fee prescribed by Section 103725, the State Registrar established by the county, not to exceed the fee for any other marriage license and certificate issued by the county and not to exceed the reasonable cost to provide the marriage license and certificate, the county shall establish a new marriage license and certificate for the petitioner.
(f) If a new marriage license and certificate is requested under subdivision (e), the new marriage license and certificate shall reflect the gender of the petitioner, as specified in the judgment of the court, and shall reflect any change of name, name and change in “first person data” or “second person data” on the marriage license and certificate, as specified in the court order, as prescribed by Section 103425. Notwithstanding Sections 103235 and 103255, no reference shall be made in the new marriage license and certificate, nor shall its form in any way indicate, that it is not the original marriage license and certificate of the petitioner.
(g) If the judgment includes an order for a new birth certificate for the petitioner’s child and if the petitioner’s child was born in this state, a certified copy of the decree of the court ordering the new birth certificate, shall, within 30 days from the date of the decree, be filed with the State Registrar. Upon receipt thereof, together with the fee prescribed by Section 103725, the State Registrar shall establish a new birth certificate for the petitioner’s child.
(h) If a new birth certificate is requested under subdivision (g), the new birth certificate for the petitioner’s child shall reflect the gender of the petitioner, as specified in the judgment of the court, and shall reflect the change of the designation of the petitioner as mother, father, or parent and, if applicable, any change of name of the petitioner, as specified in the court order, order and as prescribed by Section 103425. No reference shall be made in the new birth certificate, nor shall its form in any way indicate, that it is not the original birth certificate of the petitioner’s child.
(i) The following rules apply when a petition requesting a new marriage license and certificate does not include the signed stipulation of the spouse who appears on that marriage license and certificate:
(1) The petition shall be served on the spouse of the petitioner who appears on the marriage license and certificate with notice and an order to show cause pursuant to Section 413.10, 414.10, 415.10, or 415.40 of the Code of Civil Procedure at least 30 days before the date for hearing set in the order to show cause. If service cannot reasonably be accomplished pursuant to Section 415.10 or 415.40, the court may order that service be accomplished in a manner that the court determines is reasonably calculated to give actual notice to the spouse of the petitioner.
(2) The order to show cause issued under paragraph (1) shall direct the spouse of the petitioner to appear before the court at a time and place specified, which shall be not less than 6 weeks nor more than 12 weeks from the time of making the order to show cause, unless the court orders a different time, to show cause why the petition for a court order to amend the marriage license and certificate to reflect the petitioner’s change in gender changes ordered by a court pursuant to subdivision (f) should not be granted. The order to show cause shall direct the spouse of the petitioner to make known any objection to the granting of the petition by filing a written objection that includes the reasons why the name change would be fraudulent with the court at least two court days before the matter is scheduled to be heard and by appearing in court at the hearing to show cause why the petition should not be granted. The order to show cause shall state that if the spouse of the petitioner does not timely file a written objection and appear in the court hearing, the court shall grant the petition without a hearing.
(3) The court shall grant the petition to amend the marriage license and certificate to reflect the petitioner’s change in gender changes ordered by a court pursuant to subdivision (f) without a hearing, unless a spouse who was served with notice and an order to show cause timely filed a written objection. Upon a timely objection, the court may hold a hearing on the matter. The request to amend the petitioner’s marriage license and certificate may only be denied based on the spouse’s objection if the court finds that the request to amend the marriage license and certificate to reflect the petitioner’s change in gender or name is fraudulent. At the hearing, the court may examine under oath the petitioner and the spouse.
(4) If the spouse of the petitioner is deceased, the death certificate of the spouse shall be sufficient in order for the court to grant the petition without a hearing.
(j) (1) If, subject to the requirements of subdivision (d) of Section 103425, the petitioner requests in their petition that their child’s birth certificate be amended to reflect the gender of the petitioner change to the designation of the petitioner as mother, father, or parent and, if applicable, any change of the petitioner’s name, the petition shall include the signed stipulation of the petitioner’s child if the child is 18 years of age or older. A petition that requests an amendment to an adult child’s birth certificate that does not include the signed stipulation of the adult child shall not be granted with respect to the amendment of the adult child’s birth certificate if the adult child is living and capable of providing a signed stipulation. The failure to obtain an adult child’s signed stipulation shall not be considered by the court for any purpose other than determining whether to order an amendment to that child’s birth certificate.
(2) If, subject to the requirements of subdivision (d) of Section 103425, the petitioner requests in their petition that their child’s birth certificate be amended to reflect the gender of the petitioner change to the designation of the petitioner as mother, father, or parent and, if applicable, any change of the petitioner’s name, the petition need not include the signed stipulation of the petitioner’s child if the child is under 18 years of age. The request to amend the petitioner’s minor child’s birth certificate may only be denied if the court finds that the request to amend the birth certificate to reflect the petitioner’s change in gender or name is fraudulent.
(k) (1) If the person whose gender is to be changed is under 18 years of age, the petition shall be signed either (i) by at least one of the minor’s parents, any guardian of the minor, or a person specified in subdivision (f); or (ii) if both parents are deceased and there is no guardian of the minor, by either a near relative or friend of the minor. The affidavit pursuant to subdivision (a) may be signed by the minor.
(A) A petition that does not include the signatures of both living parents shall be served on the parent who did not sign the petition with notice and an order to show cause pursuant to Section 413.10, 414.10, 415.10, or 415.40 of the Code of Civil Procedure at least 30 days before the date for hearing set in the order to show cause. If service cannot reasonably be accomplished pursuant to Section 415.10 or 415.40, the court may order that service be accomplished in a manner that the court determines is reasonably calculated to give actual notice to the parent who did not sign the petition.
(B) The order to show cause shall direct the living parent who did not sign the petition to appear before the court at a time and place specified, which shall be not less than 6 weeks nor more than 12 weeks from the time of making the order to show cause, unless the court orders a different time, to show cause why the petition for a court order to recognize a change in the petitioner’s gender of a minor to female, male, or nonbinary should not be granted. The order to show cause shall direct the living parent who did not sign the petition to make known any objection to the granting of the petition by filing a written objection that includes the reasons for the objection with the court at least two court days before the matter is scheduled to be heard and by appearing in court at the hearing to show cause why the petition should not be granted. The order to show cause shall state that if the living parent who did not sign the petition does not timely file a written objection and appear in the court hearing, the court shall grant the petition without a hearing.
(2) The court shall grant the petition without a hearing, unless a living parent who was required to be served with notice and an order to show cause timely filed a written objection. Upon a timely objection, the court may hold a hearing on the matter and may deny the petition if it finds that the change of gender is not in the best interest of the minor. At the hearing, the court may examine under oath the minor and any other person having knowledge of the facts relevant to the petition.
(l) (1) All petitions to recognize a change of the gender of a minor signed by a guardian appointed by the juvenile court or the probate court, or by a court-appointed dependency attorney appointed as guardian ad litem pursuant to rules adopted under Section 326.5 of the Welfare and Institutions Code shall be made in the appointing court. All petitions to recognize a change of the gender of a nonminor dependent may be made in the juvenile court.
(2) For a petition filed under subdivision (1), if either or both parents are deceased or cannot be located, the guardian or guardian ad litem shall cause, not less than 30 days before the hearing, a notice of the time and place of the hearing or a copy of the order to show cause to be served on the child’s grandparents, if living and if known to petitioner, pursuant to Section 413.10, 414.10, 415.10, or 415.40.
(m) (1) If the petition is signed by a guardian, the petition shall specify relevant information regarding the guardianship, the likelihood that the child will remain under the guardian’s care until the child reaches the age of majority, and information suggesting that the child will not likely be returned to the custody of the child’s parents.
(2) Before granting such a petition, the court shall first find that the ward is likely to remain in the guardian’s care until the age of majority and that the ward is not likely to be returned to the custody of the parents.

SEC. 4.SEC. 5.

 Section 103435 of the Health and Safety Code is amended to read:

103435.
 (a) In lieu of separate proceedings, a single petition may be filed with the superior court to change the petitioner’s name and recognize the change to petitioner’s gender and, if requested, to order the issuance of a new birth certificate, marriage license and certificate, or birth certificate of the petitioner’s child. With respect to a single petition, the court shall follow the procedure set forth in Title 8 (commencing with Section 1275) of Part III of the Code of Civil Procedure; however, the order to show cause shall not include the petition to recognize the change of gender.
(b) (1) A certified copy of the decree of the court issued pursuant to this section shall, within 30 days, be filed with the Secretary of State.
(2) A certified copy of the decree of the court issued pursuant to this section shall, within 30 days, be filed with the State Registrar, if any of the following conditions are met:
(A) The judgment includes an order for a new birth certificate and the petitioner was born in this state.
(B) The judgment includes an order for a new marriage license and certificate and the marriage license and certificate was issued by this state.
(C) The judgment includes an order for a new birth certificate for the petitioner’s child and the petitioner’s child was born in this state.
(c) Upon receipt of a certified copy of a decree of the court issued pursuant to this section, the State Registrar shall establish a new birth certificate or marriage certificate as provided in this article.
(d) Upon receipt of a certified copy of a decree of the court issued pursuant to this section, a county shall establish a marriage license and certificate as provided in this article.

SEC. 5.SEC. 6.

 Section 103440 of the Health and Safety Code is amended to read:

103440.
 The new birth certificate or marriage license and certificate established pursuant to this article shall supplant any birth certificate or marriage license and certificate previously registered for the registrant and shall be the only birth certificate or marriage license and certificate open to public inspection. The application and supporting affidavit filed pursuant to Section 103426 shall be filed with the original record of birth or marriage, that shall remain as a part of the records of the State Registrar. All records and information specified in this article, other than the newly issued birth certificate or marriage license and certificate shall be available only upon written request of the registrant or an order of a court of record.
When a new birth certificate or marriage certificate is established under this article, the State Registrar shall transmit copies of the newly established birth certificate or marriage certificate for filing to the local registrar and the county recorder whose records contain copies of the original certificate, who shall forward the copies of the original certificate to the State Registrar for filing with the original certificate, if it is practical for the local registrar or the county recorder to do so. If it is impractical for the local registrar or the county recorder to forward the copy to the State Registrar, the local registrar or the county recorder shall 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. Thereafter the information contained in the record shall be available only upon written request of the registrant or on order of a court of record.

SEC. 6.Section 103445 of the Health and Safety Code is amended to read:
103445.

The State Registrar shall transmit a certified copy of a birth certificate or marriage certificate newly established under this article to the registrant without additional charge.

SEC. 7.Section 103725 of the Health and Safety Code is amended to read:
103725.

A fee of eleven dollars ($11) shall be paid to the State Registrar by the applicant for establishment of a new record of birth or marriage under Article 7 (commencing with Section 103425) of Chapter 11.