Joan Frawley Desmond, is the Register’s senior editor. She is an award-winning journalist widely published in Catholic, ecumenical and secular media. A graduate of the Pontifical John Paul II Institute for Studies of Marriage and Family, she lives with her family in California..
Last week, California Governor Jerry Brown signed into law the Gender Recognition Act of 2017. The law adds “nonbinary” to male and female in official state documents. Residents who identify as transgender have applauded the new legislation, which will also make it easier for them to change their gender on official state documents.
According to the National Center for Transgender Equality, “non-binary” means that an individual doesn’t identify as either male or female.
California is the first state to include nonbinary as an option for birth certificates.
At a reported cost of $500,000, the state’s Department of Motor Vehicles will change official documents to offer this third gender category. That option will also be available for birth certificates, allowing those who no longer identity with male or female to obtain a new birth certificate that documents their nonbinary status.
Authored by Democratic state senators Toni Atkins and Scott Wiener, the Gender Recognition Law of 2017, S.B. 179, takes effect in January 2018.
It will also allow individuals who now identify as transgender to change their official gender status without the previous requirement that they provide a physician’s affidavit to confirm they had undergone treatment for gender transition. The law would require court appearances only if a petition were challenged.
Though many details are not spelled out, it would seem that the Gender Recognition Act will allow a biological male to have his birth certificate changed to identify him as a female, without undergoing hormone treatment or sex reassignment surgery.
While some have raised questions about the need for an individual to change their gender in official state documents without transitioning to the opposite gender or adopting a nonbinary identity, a member of the staff at KQED, a public radio station in California, said this law would be welcomed by residents who found the previous requirement too burdensome.
“I’ve been very privileged because I live in an area where people support me. There’s a lot of people that live in other areas where it’s difficult to find a doctor that’s willing to write that note.” Kazmarek explained.
Governor Brown has also signed legislation that allows individuals in the state’s prisons and jails to change their gender identity and name before their release.
Given the strong support for LGBTQ rights in a Democrat-controlled state legislature, criticism of the proposed legislation has been muted.
But earlier this year, Jonathan Keller, of the California Family Council, urged state lawmakers to oppose the bill in a column for the San Diego Union-Tribune that raised serious questions about the “lack of medical oversight and age requirements.”
“Changing one’s gender identity is not a light and transitory matter. But this bill treats the process as a mere legal formality, not the radical and life-altering decision it truly is,” argued Keller.
SB 179 does not merely lower the age requirement for changing one’s legal gender identity, but removes it altogether. At a news conference when introducing the bill, Sen. Atkins told The Bay Area Reporter: ‘I have personal friends I know who had to confront and face this issue with their children who were as young as 3.’
“How can a parent make such a life-changing decision for a child who hardly understands the meaning of gender?
Keller raised an additional issue:
SB 179 would create an administrative minefield for California organizations and institutions. The new ‘nonbinary’ gender created by this bill would likely be subject to the federal Title IX statute.
“This means California’s nearly 150 public colleges and universities, and all 10,453 public schools would be required to provide not only male and female athletic teams and facilities but non-binary ones as well. This would result in a massive new federally mandated expense to the state.
Some legal experts have disputed the last point, but in the shifting landscape of gender identity politics and legal arguments worked out in federal courts, Keller’s concerns on this last point may prove to be prescient.
Ned Dolejsi, who leads the California Catholic Conference, told me that his organization had also opposed the bill and “invited the governor to veto it.”
As gender identity issues continue to gain traction as a new civil rights issue, some public-school communities and religious schools and nonprofits have opposed policy changes that would allow biological males to enter girls’ and women’s bathrooms and shower facilities. In a number of such disputes, opponents have insisted that gender identity issues do not provide sufficient justification for putting public safety at risk, and birth certificate that confirm an individual’s gender reassignment are required.
I asked Dolejsi if this new law could render such objections moot, and he said it was too soon to speculate on the law’s long-term ramifications.
“This is early in the process,” he said, while noting that Catholic schools across the state and the country have developed a variety of policies to address such matters.
“Private Catholic schools have religious freedom protections,” he added, ”whether we are sued, is another story.”
More importantly, he underscored the Church’s concern that young people struggling with gender identity issues would not get the help they needed, and would simply be given a document registering a new gender marker. This is not a real solution for a troubled person, he said.
For now, though, most Californians are marking this new moment with applause or keeping their mouths shut.
Sasha Buchert, an attorney with the Oakland-based Transgender Law Center, is one Californian who has embraced the new benchmark for LGBTQ advocates as another step toward a brighter future.
“Hopefully we’re working toward a day,” Buchert told San Jose’s Mercury News, “where we don’t have gender markers on our documents at all.”