Metropolitan News-Enterprise


Monday, April 13, 2009


Page 1


Court Rules Transgender Birth Certificate Restriction Unconstitutional


By STEVEN M. ELLIS, Staff Writer


A state law that allows transgender individuals to change the gender on their California birth certificates but requires them to file to do so where they reside unconstitutionally penalizes those who move out of state, the First District Court of Appeal ruled Friday.

Concluding the law effectively denied a California-born Kansas resident the right to a new birth certificate because Kansas law does not permit such a change, Div. One held the residency requirement violated the right of interstate travel under the U.S. Constitution.

Gigi Marie Somers was born in Los Angeles in 1941 and was issued a California birth certificate identifying her sex as male. After undergoing gender reassignment surgery in 2005 and obtaining a legal name change from a Kansas court, she sought a new birth certificate.

Kansas Resident

Somers had obtained a Kansas driver’s license reflecting her new name and indicating her sex as female, as well as a Medicare card reflecting her new name and gender. However, when she sought advice from Kansas attorneys about changing her birth certificate, she was advised state law did not permit issuance of a new certificate to reflect a change of gender.

Somers then filed a petition in the San Francisco Superior Court in 2008 to change her California birth certificate under Health and Safety Code Sec. 103425, citing her surgery, name change and her lack of ability to obtain relief in Kansas.

But despite the lack of any filed objection, Commissioner William R. Gargano denied the request, reasoning that Somers could not obtain relief because she was not a California resident.

Sec. 103425 provides that persons born in California who undergo surgery to alter sexual characteristics to those of the opposite sex can obtain a birth certificate reflecting the change and any name change by order of a court in any state or U.S. territory. However, it requires that a petition to do so be filed “with the superior court of the county where the petitioner resides.”

On appeal, Somers contended the requirement violated her equal protection rights, and Presiding Justice James J. Marchiano agreed, explaining that it potentially implicated a constitutional right of citizens to travel between states.

Right to Travel

Noting that the U.S. Constitution guarantees the right through the Privileges and Immunities Clause of Article IV, and the Equal Protection and Privileges or Immunities Clauses of the Fourteenth Amendment, Marchiano commented that the right had three components: the right to enter and leave another state, to be treated as a welcome visitor rather than an unfriendly alien when temporarily present, and to be treated like other citizens of that state.

Pointing to a Maryland court’s opinion under similar circumstances, he wrote:

“While Sec. 103425 on its face does not appear to create a classification of petitioners that is treated differently, the requirement that individuals seeking a new birth certificate under the section file their petition in their county of residence acts to deny the rights created under the statute to the classification of California-born transgender individuals who reside outside of California.

“Those individuals for whose benefit the statute was enacted who reside outside of California are effectively denied the right to issuance of a new birth certificate. Whether or not the state in which they reside has a similar statute, ‘[o]bviously, the Legislature cannot direct officials in other States to change birth certificates issued in those states….’

“Accordingly, Sec. 103425 penalizes California-born transgender individuals for moving to a state outside of California.”

Perceiving no rational basis for the Legislature to include such a requirement in the statute, “[e]ven if constitutional rights were not implicated,” the Court of Appeal reversed and remanded for Gargano to consider the petition on its merits.

Justice Sandra L. Margulies and retired Marin Superior Court Judge John “Steve” Graham, sitting by assignment, joined Marchiano in his opinion.

The case is Somers v. Superior Court of San Francisco City and County, 09 S.O.S. 2167.


Copyright 2009, Metropolitan News Company