Gender Identity: What Happens Upon Death?

Complex subject that has invoked heated debate in society 

For example, upon a person’s death, how shall the state (in this case, California) record a person’s gender?  Throughout history, it’s been done through tangible, physical evidence.

Beginning July 2015, things become a little more complex upon a person’s death in the State of California with the passing of AB1577.

Speaker of the California State Assembly Toni G. Atkins, representing 78th district in San Diego introduced AB1577, An act to amend Section 102875 of the Health and Safety Code, relating to certificates of death.   The legislation passed 67-4 during the summer session.   Local Assemblywoman Beth Gaines did not record a vote on this legislation.

TEXT AB 1577

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. This act shall be known, and may be cited, as the Respect After Death Act.
SEC. 2. Section 102875 of the Health and Safety Code is amended to read:
102875. The certificate of death shall be divided into two sections.

(a) The first section shall contain those items necessary to establish the fact of the death, including all of the following and those other items as the State Registrar may designate:
(1) (A) Personal data concerning decedent including full name, sex, color or race, marital status, name of spouse, date of birth and age at death, birthplace, usual residence, and occupation and industry or business.

(B) Commencing July 1, 2015, a person completing the certificate shall record the decedent’s sex to reflect the decedent’s gender identity. The decedent’s gender identity shall be reported by the informant, unless the person completing the certificate is presented with a birth certificate, a driver’s license, a social security record, a court order approving a name or gender change, a passport, an advanced health care directive, or proof of clinical treatment for gender transition, in which case the person completing the certificate shall record the decedent’s sex as that which corresponds to the decedent’s gender identity as indicated in that document. If none of these documents are presented and the person with the right, or a majority of persons who have equal rights, to control the disposition of the remains pursuant to Section 7100 is in disagreement with the gender identity reported by the informant, the gender identity of the decedent recorded on the death certificate shall be as reported by that person or majority of persons.
(C) Commencing July 1, 2015, if a document specified in subparagraph (B) is not presented and a majority of persons who have equal rights to control the disposition of the remains pursuant to Section 7100 do not agree with the gender identity of the decedent as reported by the informant, any one of those persons may file a petition, in the superior court in the county in which the decedent resided at the time of his or her death, or in which the remains are located, naming as a party to the action those persons who otherwise have equal rights to control the disposition and seeking an order of the court determining, as appropriate, who among those parties shall determine the gender identity of the decedent.

(D) Commencing July 1, 2015, a person completing the death certificate in compliance with subparagraph (B) is not liable for any damages or costs arising from claims related to the sex of the decedent as entered on the certificate of death.

(E) Commencing July 1, 2015, a person completing the death certificate shall comply with the data and certification requirements described in Section 102800 by using the information available to him or her prior to the deadlines for completion specified in that section.

(2) Date of death, including month, day, and year.

(3) Place of death.

(4) Full name of father and birthplace of father, and full maiden name of mother and birthplace of mother.

(5) Informant.

(6) Disposition of body information including signature and license number of embalmer if body embalmed or name of embalmer if affixed by attorney-in-fact; name of funeral director, or person acting as such; and date and place of interment or removal. Notwithstanding any other provision of law to the contrary, an electronic signature substitute, or some other indicator of authenticity, approved by the State Registrar may be used in lieu of the actual signature of the embalmer.

(7) Certification and signature of attending physician and surgeon or certification and signature of coroner when required to act by law. Notwithstanding any other provision of law to the contrary, the person completing the portion of the certificate setting forth the cause of death may attest to its accuracy by use of an electronic signature substitute, or some other indicator of authenticity, approved by the State Registrar in lieu of a signature.

(8) Date accepted for registration and signature of local registrar. Notwithstanding any other provision of law to the contrary, the local registrar may elect to use an electronic signature substitute, or some other indicator of authenticity, approved by the State Registrar in lieu of a signature.
(b) The second section shall contain those items relating to medical and health data, including all of the following and other items as the State Registrar may designate:

(1) Disease or conditions leading directly to death and antecedent causes.

(2) Operations and major findings thereof.

(3) Accident and injury information.

(4) Information indicating whether the decedent was pregnant at the time of death, or within the year prior to the death, if known, as determined by observation, autopsy, or review of the medical record. This paragraph shall not be interpreted to require the performance of a pregnancy test on a decedent, or to require a review of medical records in order to determine pregnancy.
SEC. 3. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution for certain costs that may be incurred by a local agency or school district because, in that regard, this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.

However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.