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

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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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--A
            Cal. No. 515

                               2021-2022 Regular Sessions

                    IN SENATE

                                    February 4, 2021
                                       ___________

        Introduced   by   Sens.   HOYLMAN,  BAILEY,  BENJAMIN,  BIAGGI,  COONEY,
          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

        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
    18  granting  the  name  change  or  obtaining  certified copies of the name
    19  change order.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05588-08-1
        S. 4402--A                          2

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

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

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

     1  required. The applicant may amend the sex designation of their identifi-
     2  cation card upon request.
     3    §  8.  Subdivision 1 of section 502 of the vehicle and traffic law, as
     4  amended by chapter 487 of the laws of 2012, is REPEALED.
     5    § 9. Subdivision 1 of section 502 of the vehicle and traffic  law,  as
     6  amended  by  chapter  37  of  the  laws  of  2019, is amended to read as
     7  follows:
     8    1. Application for license. Application for a driver's  license  shall
     9  be  made to the commissioner. The fee prescribed by law may be submitted
    10  with such application. The applicant shall furnish such proof of identi-
    11  ty, age, and fitness as may be required by the commissioner. The license
    12  shall display the sex designation of M, F, or  X  as  certified  by  the
    13  applicant, with no additional documentation required.  The applicant may
    14  amend  the  sex designation of their driver's license upon request. Upon
    15  amendment of the sex designation, the change shall  be  made  consistent
    16  through  all  affiliated  records  within the control of the department.
    17  With respect to a non-commercial driver's license  or  learner's  permit
    18  which does not meet federal standards for identification, in addition to
    19  the  acceptable  proofs of age and identity approved by the commissioner
    20  as of January first, two thousand nineteen, acceptable proof of identity
    21  shall also include, but not be limited to, a  valid,  unexpired  foreign
    22  passport  issued  by the applicant's country of citizenship (which shall
    23  also be eligible as proof of age), a valid, unexpired consular identifi-
    24  cation document issued by a consulate from the  applicant's  country  of
    25  citizenship,  or  a valid foreign driver's license that includes a photo
    26  image of the applicant and which is unexpired or expired for  less  than
    27  twenty-four  months  of its date of expiration, as primary forms of such
    28  proof. Nothing contained in this subdivision shall be deemed to preclude
    29  the commissioner from approving additional proofs of identity  and  age.
    30  The  commissioner  may also provide that the application procedure shall
    31  include the taking of a photo  image  or  images  of  the  applicant  in
    32  accordance with rules and regulations prescribed by the commissioner. In
    33  addition, the commissioner also shall require that the applicant provide
    34  [his  or her] such applicant's social security number or, in lieu there-
    35  of, with respect to an application for a non-commercial driver's license
    36  or learner's permit which does not meet federal standards for  identifi-
    37  cation,  an  affidavit  signed by such applicant that they have not been
    38  issued a social security number and shall  provide  space  so  that  the
    39  applicant may request a notation upon such license that the applicant is
    40  a  veteran  of  the  United States armed forces.   The commissioner also
    41  shall provide space on the application so that the applicant may  regis-
    42  ter  in the New York state organ and tissue donor registry under section
    43  forty-three hundred ten of the public  health  law  with  the  following
    44  stated on the application in clear and conspicuous type:
    45    "You  must  fill out the following section: Would you like to be added
    46  to the Donate Life Registry? Check box for 'yes'  or  'skip  this  ques-
    47  tion'."
    48    The  commissioner  of  health shall not maintain records of any person
    49  who checks "skip this question". Except where the application is made in
    50  person or electronically, failure to check a box shall  not  impair  the
    51  validity of an application, and failure to check "yes" or checking "skip
    52  this  question" shall not be construed to imply a wish not to donate. In
    53  the case of an applicant under eighteen years  of  age,  checking  "yes"
    54  shall  not constitute consent to make an anatomical gift or registration
    55  in the donate life registry, except as otherwise  provided  pursuant  to
    56  the  provisions  of  paragraph  (b) of subdivision one of section forty-
        S. 4402--A                          6

     1  three hundred one of the public  health  law.  Where  an  applicant  has
     2  previously  consented  to  make  an anatomical gift or registered in the
     3  donate life registry, checking "skip this question" or failing to  check
     4  a  box  shall  not  impair that consent or registration. In addition, an
     5  applicant for a commercial driver's license who will operate  a  commer-
     6  cial motor vehicle in interstate commerce shall certify that such appli-
     7  cant  meets  the  requirements to operate a commercial motor vehicle, as
     8  set forth in public law 99-570, title XII, and title 49 of the  code  of
     9  federal  regulations,  and  all  regulations  promulgated  by the United
    10  States secretary of transportation under the hazardous materials  trans-
    11  portation  act.  In  addition,  an  applicant  for a commercial driver's
    12  license shall submit a medical certificate at such intervals as required
    13  by the federal motor carrier safety improvement act  of  1999  and  Part
    14  383.71(h)  of  title  49  of the code of federal regulations relating to
    15  medical certification and in a manner prescribed  by  the  commissioner.
    16  For  purposes  of  this  section  and  sections five hundred three, five
    17  hundred ten-a, and five hundred ten-aa of this title, the terms "medical
    18  certificate" and "medical certification" shall mean a form substantially
    19  in compliance with the form set forth in Part 391.43(h) of title  49  of
    20  the code of federal regulations. Upon a determination that the holder of
    21  a commercial driver's license has made any false statement, with respect
    22  to  the application for such license, the commissioner shall revoke such
    23  license.
    24    § 10. Section 4132 of the public health law is amended by adding a new
    25  subdivision 5 to read as follows:
    26    5. Each parent of the  child  may  choose  to  be  designated  on  the
    27  original certificate of birth or by amendment as "father" or "mother" or
    28  "parent".
    29    §  11.  The  section  heading  and  paragraph  (e) of subdivision 1 of
    30  section 4138 of the public health law, the section heading as amended by
    31  chapter 201 of the laws of 1972 and paragraph (e) of  subdivision  1  as
    32  amended  by  section  9 of part L of chapter 56 of the laws of 2020, are
    33  amended and a new paragraph (f) is added to subdivision  1  to  read  as
    34  follows:
    35    Birth  certificate;  new certificate in case of subsequent marriage of
    36  unwed parents; adoption; adjudication of parentage; change  of  name  of
    37  registrant or parent; gender transition of registrant or parent.
    38    (e) the certificate of birth of a child born out of wedlock as defined
    39  in paragraph (b) of subdivision one of section four thousand one hundred
    40  thirty-five  of this article has been filed without entry of the name of
    41  the signatory other than the person who gave birth and the  commissioner
    42  thereafter  receives the acknowledgment of parentage pursuant to section
    43  one hundred eleven-k of the social services law or section four thousand
    44  one hundred thirty-five-b of this article executed  by  the  person  who
    45  gave  birth  and  the  other signatory which authorizes the entry of the
    46  name of such other signatory, and which may also authorize a  conforming
    47  change in the surname of the child[.]; or
    48    (f)  any  person  born in New York state who submits an application to
    49  change the gender on the birth certificate and  an  affidavit  attesting
    50  under  penalty  of  perjury  that  the request for a change of gender to
    51  (female, male, or X) is to conform the person's documents and records to
    52  the person's gender identity and is not made for any fraudulent purpose.
    53  A sex designation of X shall not be a required sex  designation  of  any
    54  individual.  Upon  receipt  of the documentation, the commissioner shall
    55  establish a new birth certificate reflecting the gender  stated  in  the
    56  application  and any change in name, if accompanied by a court order for
        S. 4402--A                          7

     1  a change of name.  If such application is made on  behalf  of  a  person
     2  younger  than  seventeen, such affidavit shall be signed by the person's
     3  parent, legal guardian, mental health or  medical  provider,  or  social
     4  services provider.
     5    §  12.  This  act  shall  take effect on the one hundred eightieth day
     6  after it shall have become a law. Effective immediately,  the  addition,
     7  amendment  and/or  repeal  of  any  rule or regulation necessary for the
     8  implementation of this act on its effective date are  authorized  to  be
     9  made and completed on or before such effective date.