Bill Text: NY S04402 | 2021-2022 | General Assembly | Amended

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Bill Title: Enacts the "Gender Recognition Act"; repeals certain provisions relating to driver's licenses.

Spectrum: Partisan Bill (Democrat 15-0)

Status: (Passed) 2021-06-24 - APPROVAL MEMO.9 [S04402 Detail]

Download: New_York-2021-S04402-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                         4402--B
            Cal. No. 515

                               2021-2022 Regular Sessions

                    IN SENATE

                                    February 4, 2021
                                       ___________

        Introduced by Sens. HOYLMAN, BAILEY, BENJAMIN, BIAGGI, COONEY, GIANARIS,
          GOUNARDES,  JACKSON, PARKER, RAMOS, RIVERA, SALAZAR, SEPULVEDA -- read
          twice and ordered printed, and when printed to  be  committed  to  the
          Committee  on Codes -- reported favorably from said committee, ordered
          to first and second report, ordered to a third  reading,  amended  and
          ordered  reprinted,  retaining its place in the order of third reading
          -- again amended and ordered reprinted, retaining  its  place  in  the
          order of third reading

        AN  ACT  to  amend the civil rights law, the vehicle and traffic law and
          the public health law, in relation to enacting the "Gender Recognition
          Act"; and to repeal subdivision 1 of section 502 of  the  vehicle  and
          traffic law relating to driver's licenses

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. Short title. This act shall be known and may  be  cited  as
     2  the "Gender Recognition Act".
     3    §  2.  Section 62 of the civil rights law is amended by adding two new
     4  subdivisions 3 and 4 to read as follows:
     5    3. Except as provided in subdivisions one and two of this section, the
     6  court shall not require any other pre-hearing notice.   The court  shall
     7  not  condition  the entry of an order on notice to any other party or to
     8  any city, state or federal agency except by written order detailing  the
     9  court's  reasoning  for requiring such notice and showing cause why such
    10  notice should be served. Under no circumstances shall the court  require
    11  notice  to  United  States  immigration  and customs enforcement, United
    12  States customs and border  protection,  United  States  citizenship  and
    13  immigration  services, or any successor agencies, or any agencies having
    14  similar duties.
    15    4. The court shall not request or require consent from any party other
    16  than the petitioner, or in the case of a petitioner who  does  not  have
    17  capacity  to  consent,  their  legal  representative,  as a condition of

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05588-10-1
        S. 4402--B                          2

     1  granting the name change or  obtaining  certified  copies  of  the  name
     2  change order.
     3    §  3. Section 63 of the civil rights law, as amended by chapter 253 of
     4  the laws of 2014, is amended to read as follows:
     5    § 63. Order. If the court to which the petition is presented is satis-
     6  fied thereby, or by the affidavit and certificate  presented  therewith,
     7  that  the petition is true, and that there is no reasonable objection to
     8  the change of name proposed, and if the petition be to change  the  name
     9  of  an  infant,  that  the interests of the infant will be substantially
    10  promoted by the change, the court shall make an  order  authorizing  the
    11  petitioner  to  assume the name proposed. The order shall further recite
    12  the date and place of birth of the applicant and, if the  applicant  was
    13  born  in the state of New York, such order shall set forth the number of
    14  [his] the applicant's birth certificate or that no birth certificate  is
    15  available.  The  order shall be directed to be entered and the papers on
    16  which it was granted to be filed [prior to the  publication  hereinafter
    17  directed]  in  the  clerk's office of the county in which the petitioner
    18  resides if [he be] they are an individual, or in the office of the clerk
    19  of the civil court of the city of New York if the order be made by  that
    20  court.    [Such  order shall also direct the publication, at least once,
    21  within sixty days after the making of the order, in a designated newspa-
    22  per in the county in which the order is directed to be  entered  and  if
    23  the  petition  is made by a person subject to the provisions of subdivi-
    24  sion two of section sixty-two of this article, in a designated newspaper
    25  in any county wherein such person was convicted if  different  from  the
    26  county  in  which  the  order  is otherwise directed to be entered, of a
    27  notice in substantially the following form: Notice is hereby given  that
    28  an  order  entered by the ............ court,............ county, on the
    29  ...... day of......., bearing Index Number..........., a copy  of  which
    30  may   be   examined   at   the   office   of   the   clerk,  located  at
    31  ................., in room number......., grants me the right to  assume
    32  the  name  of  ...................    The  city  and state of my present
    33  address are .........................; the month and year  of  my  birth
    34  are  ................; the place of my birth is ....................; my
    35  present name is .................................]
    36    § 4. Section 64 of the civil rights law, as amended by chapter 258  of
    37  the  laws  of  2006,  and the closing paragraph as separately amended by
    38  chapters 258, 320 and 481 of the laws of 2006, is  amended  to  read  as
    39  follows:
    40    § 64. Effect. 1. If the order [shall be fully complied with, and with-
    41  in ninety days after the making of the order, an affidavit of the publi-
    42  cation  thereof  shall  be  filed  in  the office in which the order] is
    43  entered, the petitioner shall be known by  the  name  which  is  thereby
    44  authorized  to  be  assumed.  If  the  surname of a parent be changed as
    45  provided in this article, any minor child of such parent at the time  of
    46  such change may thereafter assume such changed surname.
    47    [Upon compliance with the order and the filing of the affidavit of the
    48  publication,  as  provided  in  this  section, the clerk of the court in
    49  which the order has been entered shall certify that the order  has  been
    50  complied with; and, if] 2. (a) If the petition states that the petition-
    51  er  stands  convicted  of a violent felony offense as defined in section
    52  70.02 of the penal law or a felony defined in article one hundred  twen-
    53  ty-five  of  such  law  or  any  of the following provisions of such law
    54  sections 130.25, 130.30, 130.40, 130.45, 255.25, 255.26, 255.27, article
    55  two hundred sixty-three, 135.10, 135.25, 230.05, 230.06, subdivision two
    56  of section 230.30 or 230.32, [such] the clerk of the court in which  the
        S. 4402--B                          3

     1  order  has been entered [(1)] shall deliver, by first class mail, a copy
     2  of such certified order to the division of criminal justice services  at
     3  its  office in the county of Albany and [(2) upon the clerk of the court
     4  reviewing  the  petitioner's  application for name change and subsequent
     5  in-court inquiry, may, in the  clerk's  discretion,  deliver,  by  first
     6  class  mail,  the petitioner's new name with such certified order to the
     7  court of competent jurisdiction which imposed  the  orders  of  support.
     8  Such  certification shall appear on the original order and on any certi-
     9  fied copy thereof and shall be entered in the  clerk's  minutes  of  the
    10  proceeding]  (b) if the petition states that the petitioner is responsi-
    11  ble for spousal support or child support obligations pursuant  to  court
    12  order,  upon  review of the petitioner's application for name change and
    13  subsequent inquiry, the court may, in its discretion,  order  the  peti-
    14  tioner  to  deliver  by first class mail, the petitioner's new name with
    15  such certified order  to  the  court  of  competent  jurisdiction  which
    16  imposed  the  orders  of support. Such certification shall appear on the
    17  original order and on any certified copy thereof and shall be entered in
    18  the court's minutes of the proceeding.
    19    3. A name change order or other documentation of name change shall  be
    20  sufficient  to  change  the  petitioner's name on any document or record
    21  issued or maintained by the state of New York or any subdivision  there-
    22  of,  or  any  private  entity,  including but not limited to, all school
    23  records for current and past students,  archival  records  and  marriage
    24  certificates.  Failure of a public or private entity to comply with such
    25  a request may constitute a violation of section two  hundred  ninety-six
    26  of the executive law, section forty-c of this chapter and any applicable
    27  local non-discrimination law and may be the basis for a complaint to the
    28  New  York  state  division  of  human  rights  and  any other applicable
    29  enforcement entity.
    30    § 5. Section 64-a of the civil rights law, as amended by  chapter  241
    31  of the laws of 2015, is amended to read as follows:
    32    §  64-a. [Exemption from publication requirements] Sealing name change
    33  papers. 1. If the court shall find that [the publication] open record of
    34  an applicant's change of name would jeopardize such applicant's personal
    35  safety, based on  totality  of  the  circumstances  [the  provisions  of
    36  sections  sixty-three  and sixty-four of this article requiring publica-
    37  tion shall be waived and shall be inapplicable. Provided,  however,  the
    38  court  shall  not deny such waiver soley on the basis that the applicant
    39  lacks specific instances of or a personal history of threat to  personal
    40  safety.    The], the court shall, at the request of the applicant or sua
    41  sponte, order the records of such change  of  name  proceeding  [to]  be
    42  sealed,  to be opened only by order of the court for good cause shown or
    43  at the request of the applicant.   For the  purposes  of  this  section,
    44  "totality  of the circumstances" shall include, but not be limited to, a
    45  consideration of the risk of  violence  or  discrimination  against  the
    46  applicant,  including  such  applicant's status as transgender or as the
    47  subject of domestic violence.   The court shall not  deny  such  sealing
    48  request  solely on the basis that the applicant lacks specific instances
    49  of or a personal history of threat to personal safety.
    50    2. Notwithstanding any other provision of law, pending such a  finding
    51  in subdivision one of this section where an applicant seeks relief under
    52  this  section, the court shall immediately order the applicant's current
    53  name, proposed new name, residential and business  addresses,  telephone
    54  numbers,  and any other information contained in any pleadings or papers
    55  submitted to the court to be safeguarded and sealed in order to  prevent
        S. 4402--B                          4

     1  their  inadvertent or unauthorized use or disclosure while the matter is
     2  pending.
     3    §  6.  The  civil rights law is amended by adding a new article 6-A to
     4  read as follows:
     5                                 ARTICLE 6-A
     6                          CHANGE OF SEX DESIGNATION
     7  Section 67. Petition to change of sex designation.
     8          67-a. Order.
     9          67-b. Sealing change of sex designation papers.
    10    § 67. Petition to change of sex designation. 1. A petition  for  leave
    11  to  change sex designation may be made by a resident of the state to the
    12  county court of the county or the supreme court in the county  in  which
    13  such  resident  resides, or, if such resident resides in the city of New
    14  York, either to the supreme court or to any branch of the civil court of
    15  the city of New York, in any county of the city of New York.  The  peti-
    16  tion  to  change  the  sex  designation  of an infant may be made by the
    17  infant through either of such infant's  parents,  or  by  such  infant's
    18  general guardian or by the guardian of such infant's person.
    19    2.    When an individual petitions the court to recognize their gender
    20  identity or to amend the sex designation on an  identity  document,  the
    21  court  shall  issue such an order upon receipt of an affidavit from such
    22  individual attesting to their gender identity or reason for the  change.
    23  No  additional medical evidence shall be required to grant such request.
    24  No such order shall be required to amend  an  identity  document  issued
    25  within  New  York  state.  No  such order shall be required to otherwise
    26  recognize the gender of an individual and  treat  them  consistent  with
    27  their gender identity within New York state or under New York state law.
    28  No  fee shall be charged for a request for judicial intervention associ-
    29  ated with a petition to change sex designation.
    30    3.  Such request may be made simultaneously with a petition for change
    31  of name pursuant to section sixty or sixty-five of this  chapter  or  on
    32  its own.
    33    §  67-a.  Order.  If  the  court to which the petition is presented is
    34  satisfied thereby, or by the affidavit and certificate presented  there-
    35  with,  that  the  petition  is  true,  and  that  there is no reasonable
    36  objection to the change of sex designation proposed, and if the petition
    37  be to change the sex designation of an infant, that the interests of the
    38  infant will be substantially promoted by the  change,  the  court  shall
    39  make  an  order authorizing the petitioner to assume the sex designation
    40  proposed.
    41    § 67-b. Sealing change of sex designation papers. 1. Upon  request  of
    42  the  applicant  or sua sponte, the court shall order the records of such
    43  change of sex designation proceeding to be sealed, to be opened only  by
    44  order  of the court for good cause shown or at the request of the appli-
    45  cant.
    46    2. Notwithstanding any other provision of law, pending such a  finding
    47  in subdivision one of this section where an applicant seeks relief under
    48  this  section, the court shall immediately order the applicant's current
    49  name, sex designation, proposed new  sex  designation,  residential  and
    50  business   addresses,  telephone  numbers,  and  any  other  information
    51  contained in any pleadings or papers submitted to the court to be  safe-
    52  guarded and sealed in order to prevent their inadvertent or unauthorized
    53  use or disclosure while the matter is pending.
    54    §  7.  Subdivision 2 of section 490 of the vehicle and traffic law, as
    55  amended by chapter 465 of the laws of 2012, the third undesignated para-
        S. 4402--B                          5

     1  graph as amended by chapter 248 of the laws of 2016, is amended to  read
     2  as follows:
     3    2. Application. (a) Any person to whom a driver's license or learner's
     4  permit  has  not  been  issued  by  the  commissioner, or whose driver's
     5  license or learner's permit is expired, suspended,  revoked  or  surren-
     6  dered,  may  make application to the commissioner for the issuance of an
     7  identification  card.  The  commissioner  shall  ensure  that  space  is
     8  provided  on  the  application  so  that the applicant shall register or
     9  decline registration in the donate life registry for  organ  and  tissue
    10  donations  pursuant  to  section  forty-three  hundred ten of the public
    11  health law and that the following is stated on the application in  clear
    12  and conspicuous type:
    13    "You  must  fill out the following section: Would you like to be added
    14  to the Donate Life Registry? Check box for 'yes'  or  'skip  this  ques-
    15  tion'."
    16    The  commissioner  of  health shall not maintain records of any person
    17  who checks "skip this question". Except where the application is made in
    18  person or electronically, failure to check a box shall  not  impair  the
    19  validity of an application, and failure to check "yes" or checking "skip
    20  this  question" shall not be construed to imply a wish not to donate. In
    21  the case of an applicant under eighteen years  of  age,  checking  "yes"
    22  shall  not constitute consent to make an anatomical gift or registration
    23  in the donate life registry, except as otherwise  provided  pursuant  to
    24  the  provisions  of  paragraph  (b) of subdivision one of section forty-
    25  three hundred one of the public  health  law.  Where  an  applicant  has
    26  previously  consented  to  make  an anatomical gift or registered in the
    27  donate life registry, checking "skip this question" or failing to  check
    28  a box shall not impair that consent or registration.
    29    (b) The identification card shall display the sex designation of M, F,
    30  or  X  as  certified  by the applicant, with no additional documentation
    31  required. The applicant may amend the sex designation of their identifi-
    32  cation card upon request.
    33    § 8. Subdivision 1 of section 502 of the vehicle and traffic  law,  as
    34  amended by chapter 487 of the laws of 2012, is REPEALED.
    35    §  9.  Subdivision 1 of section 502 of the vehicle and traffic law, as
    36  amended by chapter 37 of the  laws  of  2019,  is  amended  to  read  as
    37  follows:
    38    1.  Application  for license. Application for a driver's license shall
    39  be made to the commissioner. The fee prescribed by law may be  submitted
    40  with such application. The applicant shall furnish such proof of identi-
    41  ty,  age,  and  fitness  as  may be required by the commissioner.   With
    42  respect to a non-commercial driver's license or learner's  permit  which
    43  does  not  meet federal standards for identification, in addition to the
    44  acceptable proofs of age and identity approved by the commissioner as of
    45  January first, two thousand nineteen, acceptable proof of identity shall
    46  also include, but not be limited to, a valid, unexpired foreign passport
    47  issued by the applicant's country of citizenship (which  shall  also  be
    48  eligible  as  proof  of age), a valid, unexpired consular identification
    49  document issued by a consulate from the applicant's country of  citizen-
    50  ship, or a valid foreign driver's license that includes a photo image of
    51  the  applicant  and  which is unexpired or expired for less than twenty-
    52  four months of its date of expiration, as primary forms of  such  proof.
    53  Nothing  contained  in  this subdivision shall be deemed to preclude the
    54  commissioner from approving additional proofs of identity and age.   The
    55  license  shall display the sex designation of M, F, or X as certified by
    56  the applicant, with no additional documentation required. The  applicant
        S. 4402--B                          6

     1  may  amend  the  sex designation of their driver's license upon request.
     2  Upon amendment of the sex designation, the change shall be made consist-
     3  ent through all affiliated records within the control of the department.
     4  The  commissioner  may also provide that the application procedure shall
     5  include the taking of a photo  image  or  images  of  the  applicant  in
     6  accordance with rules and regulations prescribed by the commissioner. In
     7  addition, the commissioner also shall require that the applicant provide
     8  [his  or her] such applicant's social security number or, in lieu there-
     9  of, with respect to an application for a non-commercial driver's license
    10  or learner's permit which does not meet federal standards for  identifi-
    11  cation,  an  affidavit  signed by such applicant that they have not been
    12  issued a social security number.   The commissioner also  shall  provide
    13  space  on  the  application so that the applicant may request a notation
    14  upon such license that such applicant is a veteran of the United  States
    15  armed  forces,  and  space  on the application so that the applicant may
    16  register in the New York state organ and  tissue  donor  registry  under
    17  section  forty-three  hundred  ten  of  the  public  health law with the
    18  following stated on the application in clear and conspicuous type:
    19    "You must fill out the following section: Would you like to  be  added
    20  to  the  Donate  Life  Registry? Check box for 'yes' or 'skip this ques-
    21  tion'."
    22    The commissioner of health shall not maintain records  of  any  person
    23  who checks "skip this question". Except where the application is made in
    24  person  or  electronically,  failure to check a box shall not impair the
    25  validity of an application, and failure to check "yes" or checking "skip
    26  this question" shall not be construed to imply a wish not to donate.  In
    27  the  case  of  an  applicant under eighteen years of age, checking "yes"
    28  shall not constitute consent to make an anatomical gift or  registration
    29  in  the  donate  life registry, except as otherwise provided pursuant to
    30  the provisions of paragraph (b) of subdivision  one  of  section  forty-
    31  three  hundred  one  of  the  public  health law. Where an applicant has
    32  previously consented to make an anatomical gift  or  registered  in  the
    33  donate  life registry, checking "skip this question" or failing to check
    34  a box shall not impair that consent or  registration.  In  addition,  an
    35  applicant  for  a commercial driver's license who will operate a commer-
    36  cial motor vehicle in interstate commerce shall certify that such appli-
    37  cant meets the requirements to operate a commercial  motor  vehicle,  as
    38  set  forth  in public law 99-570, title XII, and title 49 of the code of
    39  federal regulations, and  all  regulations  promulgated  by  the  United
    40  States  secretary of transportation under the hazardous materials trans-
    41  portation act. In addition,  an  applicant  for  a  commercial  driver's
    42  license shall submit a medical certificate at such intervals as required
    43  by  the  federal  motor  carrier safety improvement act of 1999 and Part
    44  383.71(h) of title 49 of the code of  federal  regulations  relating  to
    45  medical  certification  and  in a manner prescribed by the commissioner.
    46  For purposes of this section  and  sections  five  hundred  three,  five
    47  hundred ten-a, and five hundred ten-aa of this title, the terms "medical
    48  certificate" and "medical certification" shall mean a form substantially
    49  in  compliance  with the form set forth in Part 391.43(h) of title 49 of
    50  the code of federal regulations. Upon a determination that the holder of
    51  a commercial driver's license has made any false statement, with respect
    52  to the application for such license, the commissioner shall revoke  such
    53  license.
    54    § 10. Section 4132 of the public health law is amended by adding a new
    55  subdivision 5 to read as follows:
        S. 4402--B                          7

     1    5.  Each  parent  of  the  child  may  choose  to be designated on the
     2  original certificate of birth or by amendment as "father" or "mother" or
     3  "parent".
     4    §  11.  The  section  heading  and  paragraph  (e) of subdivision 1 of
     5  section 4138 of the public health law, the section heading as amended by
     6  chapter 201 of the laws of 1972 and paragraph (e) of  subdivision  1  as
     7  amended  by  section  9 of part L of chapter 56 of the laws of 2020, are
     8  amended and a new paragraph (f) is added to subdivision  1  to  read  as
     9  follows:
    10    Birth  certificate;  new certificate in case of subsequent marriage of
    11  unwed parents; adoption; adjudication of parentage; change  of  name  of
    12  registrant or parent; gender transition of registrant or parent.
    13    (e) the certificate of birth of a child born out of wedlock as defined
    14  in paragraph (b) of subdivision one of section four thousand one hundred
    15  thirty-five  of this article has been filed without entry of the name of
    16  the signatory other than the person who gave birth and the  commissioner
    17  thereafter  receives the acknowledgment of parentage pursuant to section
    18  one hundred eleven-k of the social services law or section four thousand
    19  one hundred thirty-five-b of this article executed  by  the  person  who
    20  gave  birth  and  the  other signatory which authorizes the entry of the
    21  name of such other signatory, and which may also authorize a  conforming
    22  change in the surname of the child[.]; or
    23    (f)  any  person  born in New York state who submits an application to
    24  change the gender on the birth certificate and  an  affidavit  attesting
    25  under  penalty  of  perjury  that  the request for a change of gender to
    26  (female, male, or X) is to conform the person's documents and records to
    27  the person's gender identity and is not made for any fraudulent purpose.
    28  A sex designation of X shall not be a required sex  designation  of  any
    29  individual.  Upon  receipt  of the documentation, the commissioner shall
    30  establish a new birth certificate reflecting the gender  stated  in  the
    31  application  and any change in name, if accompanied by a court order for
    32  a change of name.  If such application is made on  behalf  of  a  person
    33  younger  than  seventeen, such affidavit shall be signed by the person's
    34  parent, legal guardian, mental health or  medical  provider,  or  social
    35  services provider.
    36    §  12.  This  act  shall  take effect on the one hundred eightieth day
    37  after it shall have become a law. Effective immediately,  the  addition,
    38  amendment  and/or  repeal  of  any  rule or regulation necessary for the
    39  implementation of this act on its effective date are  authorized  to  be
    40  made and completed on or before such effective date.