Preventing a Final Indignity

Death certificates are the latest battleground for gay rights advocates trying to ensure that the gender a person identifies with in life carries over into death.

A bill introduced recently aimed at ensuring the death certificates of transgender persons reflect their chosen gender is the latest legislative effort to vouchsafe the rights of this small category of Californians.

“A person should rest in peace after death as the same person they were during life. For transgender people, their gender identity may not be consistently recognized after death by family, friends and even officials,” said Assemblywoman Toni Atkins, a San Diego Democrat who is carrying the death certificate bill, AB 1577. 

“This bill provides an objective way to make sure that a transgender person’s gender will be correctly identified after they pass on.”

Self-styled “traditional values” groups like Advocates for Faith & Freedom that have opposed past transgender rights legislation have yet to take a position on Atkins’ latest measure.

Advocates for Faith & Freedom filed a referendum to overturn a high profile law last year that made California the first state in the country to require that transgender pupils be allowed to use a restroom or locker room that matches the gender the student identifies with, not necessarily the gender whose sex organs he or she received at birth.

County registrars are hand-counting the signatures submitted to place the referendum on the ballot, which in random samples didn’t appear to have the 504,760 valid signatures needed.  A final tally is due by February 24.

Even without passage of state legislation, many California public schools had already adopted policies regarding transgender students. For instance, Los Angeles Unified – the second largest school district in the country – created rules accommodating transgender pupils in 2004 and updated them in 2011. The district reports no incidents or lawsuits.

Equality California, an advocacy group for gays, lesbians, bisexuals and transgender persons, was a backer of last’s year school policy legislation and, in tandem with the Transgender Law Center, sponsors Atkins’ new death certificate legislation.  

The genesis of the death certificate bill is the case of Christopher Lee, a Bay Area artist and transgender advocate who was “mis-gendered” after his death in 2012. Lee was born female but “had long identified and expressed himself as a transgender man,” according to Equality California.

Despite a driver’s license showing his sex to be male, Lee was wrongly identified as female by the coroner.

Under Atkins’ bill, a transgender person’s death certificate would show that person’s gender identity if there’s documentation provided such as “written instructions from the deceased confirming their wishes, an updated birth certificate or driver’s license or evidence of medical treatment for gender transition.”

Sometimes a transgender person appears externally as their preferred gender identity but still maintains the private physical characteristics of their gender at birth. 

“This can lead to confusion at death if authorities have only the sometimes conflicting physical attributes to rely on,” Atkins says. 

Atkins, a lesbian, is scheduled to become the next speaker of the Assembly later this year, increasing the already good odds her death certificate legislation will land on Gov. Jerry Brown’s desk where it’s likely to win a signature.

The measure has yet to be scheduled for a legislative hearing.

Last October, the Democratic governor signed another bill by Atkins, AB 1121, which allows changing the sex on a birth certificate if a transgender person provides proof of undergoing the appropriate medical treatment.

Previously, the only way to amend a birth certificate was through a court order, which required publication of a legal notice.

“Trans issues are definitely a priority this legislative session but I wouldn’t say they’re the focus any more or any less than in previous years,” said Steve Roth, a spokesman for Equality California.    

On hold in the Legislature is another Equality California-backed bill that would remove state tax exemptions from youth groups that discriminate against leaders and members based on sexual orientation or gender identity.

The not-so-thinly-veiled legislative attack on the Boy Scouts of America, whose membership policy banned both gay troop leaders and scouts, stalled after the organization voted in May to not reject youth based solely on their sexual orientation or preference. The resolution, which passed with a 61 percent majority, didn’t change the group’s policy on gay adult leaders.

Equality California called the policy change  “alarmingly inadequate.”

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