On July 9, 2021, California Gov. Gavin Newsom signed Assembly Bill 439 (AB 439) into law which, effective Jan. 1, 2022, authorizes a person completing a death certificate to record the decedent’s gender identity as female, male, or nonbinary. Expanding the protections of California’s Respect After Death Act of 2014, the bill is a victory for members of the queer community in the continued struggle for gender inclusivity in the law.
History of the Respect After Death Act
The Respect After Death Act of 2014 was a response to the events surrounding the death of Christopher Lee, a queer political activist, artist, and filmmaker who co-founded the San Francisco Transgender Film Festival in 1997. Lee was also the first openly transgender man to serve as Grand Marshal of San Francisco’s Gay Pride Parade in 2002.
On Dec. 22, 2012, Lee passed away. Although the Alameda County coroner was provided with various identification documents (including Lee’s driver’s license) that listed Lee as male, Lee’s death certificate misgendered and deadnamed him. At the time, the protocol regarding death certificates and gender identity was impossibly vague — such that it was at the discretion of a coroner or funeral director to use their own judgment, in the face of conflicting information, to identify the decedent. Here, a conflict arose as to Lee’s name and gender identity, and according to the protocol at the time, coroners and funeral directors relied on the sexual anatomy of the decedent and the directives of the next-of-kin to avoid legal liability. Such conflicts typically presented among transgender and nonbinary communities, who were often denied their dignity in death due to pervasive misgendering or deadnaming on their death certificates.
Passage of the Respect After Death Act in 2014
Lee’s chosen family sought the aid of the Transgender Law Center, Equality California, and then-Assemblymember Toni Atkins (D-San Diego). Addressing the insufficiency of California law governing the completion of death certificates, Assemblymember Atkins authored Assembly Bill 1577 (Stats. 2014, ch. 631) with the Transgender Law Center and Equality California as co-sponsors of the bill. The bill directly resolved the conflict presented in Lee’s case by providing adequate direction to authorities responsible for determining a decedent’s gender designation in completing a death certificate.
Former California Gov. Jerry Brown signed the bill on Sept. 26, 2014. AB 1577 amended section 102875 of California’s Health and Safety Code, relating to the completion of a death certificate, by adding the following subsection:
- A person completing the certificate shall record the decedent’s sex to reflect the decedent’s gender identity.
- If the person completing the certificate is presented with certain records (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), the person shall record the decedent’s sex as that which corresponds to the decedent’s gender identity as indicated in those documents.
(Health & Saf. Code, § 102875, subd. (a)(1)(B), as amended by Stats. 2014, ch. 631, § 2.)
Passage of the Gender Recognition Act of 2017
While AB 1577 required a legal license as one of the identifying documents to prove an individual’s gender, it has historically been difficult for transgender and nonbinary individuals to obtain access to comprehensive means of aligning their gender identity with their legal gender. To address this, now-State Sen.Toni Atkins (D-San Diego) authored Senate Bill 179 (Stats. 2017, ch. 853), the Gender Recognition Act of 2017, which made it easier for transgender and nonbinary individuals to obtain legal documents that reflect their genders without a declaration or certification by a physician. In relevant part, the bill:
- Added a third gender (nonbinary) option on state driver’s licenses, identification cards, and birth certificates;
- Modified the process by which an individual could obtain a name change on legal records to conform with their gender identity (Code Civ. Proc., § 1277.5, subd. (a)(1), as added by Stats. 2017, ch. 853, § 5); and
- Created a new procedure for individuals to obtain a court-ordered change of gender (Health & Saf. Code, § 103425 et seq.)
In the Gender Recognition Act of 2017, the Legislature declared, “[i]t is the policy of the State of California that every person deserves full legal recognition and equal treatment under the law and to ensure that intersex, transgender, and nonbinary people have state-issued identification documents that provide full legal recognition of their accurate gender identity.” (Italics added.). Many of the provisions of SB 179 have been largely recast and further expanded through Assembly Bill 218 (AB 218), which restructures and streamlines the process by which individuals may update their marriage certificates and the birth certificates of their children to reflect their legal name and gender.
Bauer-Kahn Passes AB 439 in 2021
In light of the precedent set by the Gender Recognition Act of 2017 (and its subsequent amendments), Assemblymember Rebecca Bauer-Kahan (D-Orinda) authored Assembly Bill 439 (AB 439) in 2021. The bill amended section 102875, subdivision (a)(1)(B) of the Health and Safety Code in relevant part by stating, “a person completing the [death] certificate shall record the decedent’s sex to reflect the decedent’s gender identity as female, male, or nonbinary.” (Italics added.) By expanding the protections of the Respect After Death Act of 2014, AB 439 inscribes the nonbinary gender option into the statute, thereby “ensur[ing] nonbinary individuals’ right to equal treatment under the law,” as stated by Assemblymember Bauer-Kahan.
With the passage of AB 439 and AB 218 in 2021, the respect of an individual’s gender identity shall be preserved, in the words of Equality California Legislative Director Tami A. Martin, “in life and in death.”