Name and Gender Marker Change

by | Jun 30, 2023 | Firm News

Legally changing your name and gender-marker can be an intimidating process. Although we still have a long way to go as a country on this issue, California has enacted several statutes over the last several years to address the prevalent issue of persons wanting to legally change their names and gender-markers. This is an issue binary and nonbinary people in the LGBTQ+ community face when their gender identity and/or gender expression differs from the sex they were assigned at birth. For cisgendered people, the issue of having something like a driver’s license or school records label you as something you do not identify as has likely never come up as an issue. As fellow humans, however, it should be recognized and appreciated how difficult that could be to deal with in your everyday life.

Time for a quick and important history lesson. Name and gender-marker designations are often determined by state law. Many states have different gender options, standards, and systems. For those in California, there is a set process for obtaining name and gender-marker changes. In 2011, the Vital Statistics Modernization Act clarified that persons who currently reside in California, or born in California, may petition a California court for a gender-marker change. Importantly, the Act removed the requirement that a person must have surgery before the court could issue the gender-marker change order. In 2014, California made another step forward with AB 1121 which made it possible for a person seeking only a gender-marker change to go directly to the State Registrar and eliminated the requirement for a hearing and publication. In 2017, the California legislature passed the Gender Recognition Act with implemented nonbinary as a third gender marker in addition to male and female on California government identity documents such as birth certificates, identity cards and driver’s licenses (as of 2019). Importantly, the Gender Recognition Act also removed the requirement for a physician’s statement and mandatory court hearing for gender change petitions. Person’s seeking a gender-marker change can now submit a self-affidavit instead. If you are a minor seeking a gender-marker change, the Gender Recognition Act also changed your requirements by allowing one parent to file on behalf of the minor instead of requiring the consent of both parents. The other parent is required to be given official notice, however, and if the other parent objects, the court will then hold a hearing to determine what is in the best interest of the minor. In October of 2021, AB 218 was signed into law which created a process for Californian’s seeking a gender-marker change to also request other documents such as marriage licenses, and their children’s birth certificates be reissued with their updated gender affirming information.

To obtain a court order for a gender-marker change, you must submit a petition to the court requesting the change and pay the court’s filing fee. You can also request your name be changed at that time.  If you cannot afford the filing fee, courts do often have a fee waiver you can submit to request the court waiver the filing fee. A hearing is generally not required unless the Court receives an objection. Once the petition is approved by the judge handling your case, you will receive a signed Decree Changing Name and Order Recognizing Change of Gender that you can then use to update your legal documents such as your birth certificate, driver’s license, social security card, passport, and school records. Once you get to this step, it is recommend you purchase several certified copies of the Decree and Order from the Court, so you have enough to submit to the various governmental agencies, schools, medical providers, DMV, etc.

Everyone’s identity document needs are different, and there is no rule or standard requiring a person to change the gender marker on their legal documents and identification if they don’t want to.  Getting a California court-ordered gender change can be very helpful in establishing a person’s affirming gender on their different identification documents, but unfortunately is not a complete solution if the person lives in another state. Since every state and federal agency has its own rules governing gender change it is possible that even with a California court order, a person will still have different gender markers on different forms of I.D. if they are from different states.  For nonbinary individuals it is important to note that only a few states and countries around the world recognize a gender marker other than male or female, and there is no uniformity. As such, it is possible to modify California state identity documents to be gender affirming, while simultaneously having a birth certificate or passport that has a non-affirming binary marker.

California Code of Civil Procedure §1275 et seq. establishes a person’s right to change their name through the Court. A court order recognizing a person’s name change is generally necessary to get state and federal identity documents issued/reissued to reflect a person’s name. California Code of Civil Procedure §1277 states a name changes for the purposes of conforming to gender identity do not require publication. To obtain a name change, the person must generally be a resident of the county where they are filing, by over 18, or if under 18 have permission from both parents if living and sharing legal custody, unless the court makes a finding the name change is in the minor’s best interest despite a parent’s objection.  A name change may also be delayed if the person has any outstanding warrants. Changing your name, however, will not always completely eliminate your dead name if you have debt records under your dead name. As such, your dead name may continue to show up on background checks.

We have a long way to go as a state, country, and world to provide all humans with these basic equal rights. If you identify in a way that does not currently match your legal identifying documents, California has made it possible for you to address this issue. There are several resources available here in San Diego to assist you. It is difficult enough to address the societal pressures and obstacles found in our world today without having additional barriers to basic fundamental issues such as changing your driver’s license from your dead name. We wish you all the best!

Happy Pride!