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Somers v. Superior Court of San Francisco City and County

April 10, 2009

GIGI MARIE SOMERS, PLAINTIFF AND APPELLANT,
v.
SUPERIOR COURT OF SAN FRANCISCO CITY AND COUNTY, DEFENDANT AND RESPONDENT.



(San Francisco City and County Super. Ct. No. 544-745) Trial Judge: Hon. William R. Gargano, Commissioner.

The opinion of the court was delivered by: Marchiano, P.J.

CERTIFIED FOR PUBLICATION

I. INTRODUCTION

Plaintiff Gigi Marie Somers (Somers) appeals from an order denying her petition for change of gender on her California birth certificate under Health and Safety Code section 103425.*fn1 The court denied the petition on the basis that the statute requires a petitioner to file in the county of his or her residence, and plaintiff resides in Kansas. Kansas does not permit a change of gender on a birth certificate for plaintiff. We hold that this requirement impermissibly denies California-born transgender individuals who reside outside of California the same right to issuance of a new California birth certificate as California-born transgender individuals residing in California. Accordingly, we reverse.

II. BACKGROUND

Somers was born in Los Angeles, California, on September 12, 1941, and was issued a California birth certificate, which identifies her sex as male. In 2005, Somers underwent gender reassignment surgery. She subsequently obtained an order from the Leavenworth County District Court in Kansas, where she resides, legally changing her name to Gigi Marie Somers. Somers then obtained a Kansas driver's license, reflecting her new name, and indicating her sex as female. She also obtained a Medicare card reflecting her new name and gender.

In 2006, plaintiff sought advice from two Kansas attorneys regarding changing her birth certificate. Both advised her that Kansas law does not permit issuance of a new birth certificate to reflect a change of gender. Additionally, one attorney indicated that "Ms. Somers as a matter of law does not have the ability in the state of Kansas to alter her birth certificate because she is not a Kansas born resident."

On January 30, 2008, Somers filed a petition under section 103425 in San Francisco Superior Court for change of gender and issuance of new California birth certificate. Somers included a declaration from her physician indicating that she had undergone gender reassignment surgery, and a copy of the Kansas order for name change. She also filed her declaration and the declaration of one of her Kansas attorneys, indicating that she could not obtain the relief sought in Kansas.

The court held a hearing on March 4, 2008, at which Somers personally appeared. No objections to the petition were filed.*fn2 The court denied the petition on the basis that Somers was not a resident of California, stating, "I still am having an issue with the residency here. I'm not totally convinced by the paperwork that we can overcome that." This timely appeal followed.

III. DISCUSSION

Somers urges that the statutory requirement that she file her petition for new California birth certificate under section 103425 in her county of residence, when she resided outside California, violated her equal protection rights under the Fourteenth Amendment and the California Constitution. The court indicated in its order that it denied the petition because "[plaintiff] does not reside in the County of San Francisco, nor in the State of California. . . ." Because this appeal presents a pure question of law involving the interpretation and constitutionality of a statute, we conduct a de novo review. (See People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432; People v. Superior Court (Mudge) (1997) 54 Cal.App.4th 407, 411.)

A birth certificate is a vital, primary source of personal identification, necessary to obtain other forms of identification such as a social security card or passport.

We look first to the California statutory procedures for obtaining a new birth certificate to reflect a change in gender. Section 103425 provides: "Whenever a person born in this state has undergone surgical treatment for the purpose of altering his or her sexual characteristics to those of the opposite sex, a new birth certificate may be prepared for the person reflecting the change of gender and any change of name accomplished by an order of a court of this state, another state, the District of Columbia, or any territory of the United States. A petition for the issuance of a new birth certificate in those cases shall be filed with the superior court of the county where the petitioner resides."*fn3 Section 103430 provides in part: "The petition shall be accompanied by an affidavit of a physician documenting the sex change, and a certified copy of the court order changing the applicant's name (if applicable)."

Somers maintains, and we agree, that the trial court had jurisdiction to grant the petition. The court had, pursuant to the statutory scheme, subject matter jurisdiction to order issuance of a new California birth certificate to reflect the gender reassignment of an individual born in California. It also had personal jurisdiction over Somers, who could and did consent to the court's jurisdiction by voluntarily filing the petition and personally appearing at the hearing. ...


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