Family Law

Attorney LGBTQ+ Advocacy Leads To New California Law

The law regarding name and gender changes on birth and marriage certificates will go into effect on January 1, 2023.

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(Image via Getty)

The transition to a kinder, friendlier world for LGBTQ+ individuals has been rapid over the past decade in many areas, but outmoded relics are still found in places like the law, where things can move slower than the rate of social change. In this context, Amira Hasenbush, an attorney and LGBTQ+ rights activist, saw a problem for her transgender clients. She lives and practices law in California, where it is relatively easy for a transgender person to update their own birth certificate and driver’s license for name and gender — M, F, or X for a driver’s license; female, male, nonbinary, or (-) for a birth certificate. But those aren’t the only government-issued documents where names and gender markers appear. For many transgender people, transition takes places after major life events such as marriage or having children. And, of course, names and gender markers appear on a marriage certificate and a child’s birth certificate.

Hasenbush told me her story. A few years ago, she was working to help a transgender client who had gotten married prior to legally updating her name and gender marker to reflect her gender identity. The client wanted to update her marriage certificate to correct her name and gender. Her spouse was on board, and the couple wanted their marriage certificate to look like an original document, and not a two-page version that raised red flags as an amended certificate, which invariably prompts questions.

Hasenbush explained she was not entirely surprised when a judge denied the request, noting that it was not a judicial problem but a legislative one. The law needed to be changed.

Luckily, from Hasenbush’s time with the Williams Institute — UCLA School of Law’s think-tank on sexual orientation and gender identity law and public policy — she was no stranger to legislative advocacy. She drafted a bill to correct the problem, making it clear that transgender individuals could have both their marriage certificates and their children’s birth certificates corrected for names and gender, without the new version either being multiple pages, having a notation that it was amended, or otherwise raising questions. The new law gives notice and opportunity for response for others named on the document — the spouse or other parent (a nonminor child must consent to the change on their own birth certificate), and does not place a limit on how long after the birth or marriage the new certificate may be issued.

Correcting A Second Problem — Non-California Residents

As a surrogacy specialist, Hasenbush witnessed another serious flaw with California birth certificates. Some of her clients sought to update birth certificates after the original was issued in California, but were not California residents and thus were without legal standing to ask for the update. For example, a Thai parent may have a child born by surrogacy in California. If the parent wanted to change the child’s name and update the birth certificate, they would be required to give California Vital Records department a court-ordered name change decree in order to do so. However, Thailand does not have a judicial process for name changes (only an administrative one), so there was no way to get the required court order from Thailand. If the parent sought the court-ordered name change in California, they would be denied standing to do so, not being a resident of California.

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Hasenbush figured, while she was at it, she might as well fix that problem with California law as well.

As with most legislative change, it took time. Hasenbush explained that in 2020, the bill was set to pass, but last-minute technical concerns forced the bill to be held over for another year. So this was the year to get it done. The bill was signed into law by Gov. Gavin Newsom on October 6, 2021.

The Result

The law will go into effect on January 1, 2023. The state needs a year to create the necessary forms, Hasenbush explains. Once in effect, Californians and non-Californians with California-issued government documents, including their own birth certificates, their children’s birth certificates, and marriage certificates, can appropriately update their documents.

Kudos to Hasenbush and California for identifying a problem with the law and fixing it. Hopefully, other states will follow suite to support their LGBTQ+ communities, and the need for accurate state-issued documentation.

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Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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