Diversity, Gender, and Gestational Agreements
This month I attended the Interim Judicial Committee meeting because Senator Todd Weiler is bringing back his bil for gender marker changes on the birth certificate, which in its current state poses a couple of problems for the transgender community because it requires a minimum age of 18 and requires the change be annotated on the revised birth certificate. The Transgender Inclusion Project, which I chair, felt strongly that if those two requirements are not removed, they would oppose the bill. So I wrote an email to Senator Weiler, spoke with my representative who sits on the committee, Bruce Cutler, and with Senator Gene Davis, who is the Senate Minority Leader and also sits on the committee. I went fully intending to speak, but delegated my position in line to people who were better messengers as there was not enough time for everyone to speak. There was a lot of content is that meeting, so I will be focusing on the first three issues in this newsletter: diversity on the bench, change of legal gender, and gestational agreements.
Diversity on Utah's Bench
In the prior July meeting, the committee discussed issues relating to diversity in Utah's legal profession, particularly diversity on Utah's bench.
Kim Cordova, Executive Director, Commission on Criminal and Juvenile Justice, and staff to Utah's nine judicial nominating commissions, elaborated on the nominating conventions and diversity on the bench. When the notice goes out that there’s a vacancy, it goes from her to all the lawyers in Utah. Her office staffs the commissions and is involved from the very beginning to the very end. When the judge is confirmed by the Senate, she hands them off to AOC. As she see it, we need outreach, connection, and education. Our nominating system is good enough for the trial court, the appellate court, and the supreme court. There are nominating commissions in each district. Nominations come from the Utah State Bar on the commissions. The lawyers in the room have a lot of influence on who to review and send to the governor for consideration. The governor’s appointment is limited by these commissions. There should be no fear as to barriers to the bench. Kim believes it’s about getting high school students to be interested in becoming lawyers. She has connected with the University of Utah Law School to make a presentation to make the process more visible and transparent. She tried to explain that diversity is more than just gender and race, and only plays one component of many in the selection process and that how one has navigated a diverse background can be used to determine fitness.
Kyler O’Brian, Board Member, LGBT and Allied Lawyers of Utah, came to give his perspective on diversity on the bench. In his opinion, there doesn’t need to be a change to the standard. Diversity is a multi-faceted issue. The Allied Lawyers of Utah want to make sure the fittest, most-qualified candidates are rising through the ranks. A lot of fear comes from applicants when they consider rising to the bench. Without a lot of support from members in your own social circles, rising to the bench can be quite difficult. Having open access to the information so they can prepare candidates is a big issue for his organization. We need to retain people in the state of Utah to maintain a large pool of people. The kinds of qualifications and life experiences one has should determine what the best of candidate looks like, It is a complex issue involving development and growth. He reiterated that fitness is the appropriate standard.
Change of Legal Gender
The 2018 General Session 4th Sub. S.B. 138, "Sex Change Amendments" bill did NOT pass. It would have addressed a process for legally changing an individual's legal gender.
Senator Todd Weiler told the committee the story of how the bill wound up in front of them. In the 1970s the legislature enacted a statute that allowed judges to change name and gender. In terms of gender changes the legislature did not provide any guidelines. Most criteria in name changes have to do with the prevention of fraud. Currently, a number of judges grant gender change petitions. One case concerning a denied gender marker change is currently before the Utah Supreme Court. Senator Weiler was expecting a decision by May, but no decision and no explanations have been forthcoming. There is currently no law for judges to apply or interpret on how to grant a gender marker change or what guidelines to apply. The legislature has filled in the blanks for name changes. Senator doesn’t know what the supreme court is doing other than being in pause mode. In his opinion, the supreme court will either affirm the denial of the petition or send it back to the lower court to clarify their decision. Currently, if a court orders a gender change, the applicant will take the order to the Department of Vital Statistics to get a new birth certificate. There are a few people in Utah showing a gender marker of X or U. Some birth certificates that have been reissued are marked as amended and some of them aren’t. Once a person has the court order, they can then obtain a new driver’s license with the new gender marker. As it is, any judge can make up any criteria or court order. Furthermore, if someone has obtained a changed gender passport from the US State Department, they can use that to change the gender marker on their driver’s license.
Senator Weiler said he is running this because he feels it the rule of the legislature to make the law. As long as the legislature continues to leave the status quo in place, every judge in Utah is forced to make up their own law when presented with a gender marker change petition. The reason he feels that the bill failed is because advocates in the LGBT community felt that the bill didn’t go far enough and opponents felt it went too far. There is an education role that needs to go into this. He argued on the Senate floor that if know one was happy, maybe he struck the right balance.
The bill that he ran required that you had to be 18 to petition for a gender change. We issue a state driver’s license at 16. Many advocates argued that this was cruel. The advocates for the LGBT community prefer that there be no mark on the birth certificate and that there be no age requirement or not as high as 18. As it is now, if parents have an eight year old, they can petition for a gender change. There are also some judges will deny any petition for a gender change. Judges are able to make up there own criteria because the legislature hasn’t given them any. According to Senator Weiler, it is the legislature's duty to wrap their arms around this issue and give the judges clear guidelines.
Rich Oborn, State Registrar, Office of Vital Records and Statistics, Department of Health, stated that there haven’t been any challenges that they have received concerning an amended birth certificate. You can clearly see in the birth certificate an amendment for a sex change, and it is typically on the first page. Only 10% of the judges specifically order that the amendment not appear. If there is not language in the court order requiring confidentiality, the amendment will be added and shown. This has been occurring in about 90% of court-ordered sex changes. The number of court-ordered sex change amendments has been steadily increasing, and there have been 36 court-order sex changes through July for 2018. During adoption, a clean supplemental birth certificate can be created showing the new parents, sealing the original and not showing the annotation. Someone who changes their name by court order or who adds a middle name may also gets a new birth certificate issued if the judge orders it with no annotation shown.
Senator Weiler presented a list of potential harms that the Eagle Forum submitted, and stated that practically all of the "so-called" harms and fears were already existant under the current code, implying that there actually was no damage. He invited Gayle Ruzicka of the Eagle Forum to address his comments, and she testified that she believed there should be local control, in other words letting judges decide whether they want to grant gender change petitions. Next up, a woman brought her intersex child with her to ask that they not take her child's freedom away, Sue Robbins, Chair of the Utah Pride Center testified, as did the father of a transgender boy. Family Watch had a representative testify that gender is chromosomal (something that most modern psychiatrists and researchers disagree with), and Salt Lake City Councilman Chris Wharton, the lead attorney on the Utah Supreme Court case, provided clarification of the legal issues involved. He also closed the testimony by reading the note I passed him regarding the Transgender Inclusion Project's stance on the bill.
The committee agreed to have Senator Weiler continue work on the bill and bring it back for further consideration.
The committee then discussed issues relating to gestational agreements and Title 78B, Chapter 15, Part 8, Gestational Agreement.
Senator Lyle Hillyard was the sponsor of the bill allowing surrogacy in 2004. He said he did this on the express condition that it would be revisited when courts addressed restrictive surrogacies. According to Senator Hillyard, surrogacy has been a helpful thing in the state of Utah. His first issue of concern is making sure the state protects the gestational mother. To be a gestational mother you must be at least 21, not on financial assistance, and have already had a prior birth. In addition, counseling is involved. He remarked on the issue pending before the Utah supreme court concerning surrogacy being limited to a heterosexual married couple.. Because same sex marriage is the law of the land, the court may rule the current law unconstitutional. Senator Hillyard testified that there are groups in this country that will contact you about providing surrogate services and trying to match desires, and will abort children until one matches at least the desired gender. He is also concerned about people just selling babies.
Davian Davenport, an attorney in the area of assisted reproduction, stated that he hasn’t heard of designed baby solicitation happening in Utah. There also have been no parental disputes in the last 13 years with regards to surrogacy. There are also contractual requirements in place for the adoptive parents. All parties have a counseling requirement. The American Society for Reproductive Medicine has created medical and psychological guidelines for both the intended and surrogate parents. Mr. Davenport feels that the best way to protect the surrogates and intended parents is to keep the statute in place. He recommends adding legal counsel for the surrogate parent so that she and her spouse can understand the intricacies and legalities of their situation and the intended parents should be expected to pay for this. In the current statute, intended parents must demonstrate medical necessity before they can avail themselves of surrogacy.
The committee went on to discuss government immunity, which I will report on in the next newsletter. For now, I am still reading through reports submitted to the Interim Committee on Business and Labor.
The next interim meeting of the Judiciary Committee is scheduled for October 17 at 8:30 am in the Utah House Building Room 20. The meeting schedule and transcripts are available at http://le.utah.gov
Always in Service,
Sophia Hawes-Tingey is the Chair of the Board of Directors for the Transgender Inclusion Project, Legislative Liaison for the Utah Gay and Lesbian Chamber of Commerce, the Co-Chair of the Business and Labor Committee of the Women’s State Legislative Council of Utah, member of the Board of Directors for the Utah Stonewall Democrats, the Vice Chair of the Community Council of Midvale, and co-founder of People Empowered, LLC. You can visit Sophia’s webpage at http://www.sophiahawes.com or follow her on Facebook and Twitter.