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Introduced Version House Bill 3193 History

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Key: Green = existing Code. Red = new code to be enacted

WEST virginia legislature

2021 regular session

Introduced

House Bill 3193

By Delegates Walker, Young, Thompson, Rowe and Hansen

[Introduced March 16, 2021; Referred to the Committee on Health and Human Resources then the Judiciary]

A BILL to amend and reenact §16-5-18 of the Code of West Virginia, 1931, as amended; to amend and reenact §17B-2-8 of said code; to amend and reenact §17B-2-13 of said code; and to amend said code by adding thereto a new article, designated §55-19-1, §55-19-2, §55-19-3, §55-19-4, and §55-19-5, all relating to obtaining an appropriate gender marker for state documents; to providing an avenue by which persons may petition the courts to change their gender; providing for an objection process; providing guidelines for when judges may or may not grant the request; and providing for a joint petition process.

Be it enacted by the Legislature of West Virginia:

CHAPTER 16. PUBLIC HEALTH.


ARTICLE 5. VITAL STATISTICS.


§16-5-18. Certificates of birth following adoption, legitimation, gender change, paternity acknowledgment and court determination of paternity.

(a) The State Registrar shall establish a new certificate of birth for a person born in West Virginia when he or she the registrar receives the following:

(1) A certificate of adoption as provided in section sixteen of this article or a certificate of adoption prepared and filed in accordance with the laws of another state, or a certified copy of the order of adoption, together with the information necessary to identify the original certificate of birth and to establish a new certificate of birth; or

(2) A request that a new certificate be established as prescribed by legislative rule, based upon evidence that:

(A) The person for whom the certificate is sought has been legitimated;

(B) A court of competent jurisdiction has determined the paternity of the person; or

(C) Both parents have acknowledged the paternity of the person; or

(3) A request that a new certificate be established based on evidence of gender change.

(b) A new certificate of birth shall show the actual city, county and date of birth, if known, and shall be substituted for the original certificate of birth on file. The original certificate of birth and the evidence of adoption, legitimation, court determination of paternity, evidence of gender change, or affidavit of paternity may not be inspected except for the administration of the system of vital statistics or the Bureau for Child Support Enforcement, or upon order of a court of competent jurisdiction, or, in the case of an affidavit of paternity, the signatories to the affidavit or the adult subject of the affidavit, or as provided by legislative rule or as otherwise provided by state law.

(c) Upon receipt of a report of an amended order of adoption, the State Registrar shall amend the certificate of birth as provided by legislative rule.

(d) Upon receipt of a report or order of annulment of adoption, the State Registrar shall restore the original certificate of birth to its place in the files and the new certificate and evidence may not be inspected except for the administration of the system of vital statistics or Bureau for Child Support Enforcement, or upon order of a court of competent jurisdiction, or as provided by legislative rule or as otherwise provided by state law.

(e) Upon receipt of a written request and a sworn affidavit of paternity signed by both parents of a child born out of wedlock, the State Registrar shall place the name of the father on the certificate of birth and, if the child is under the age of 18 and at the request of the parents, change the surname of the child in the manner prescribed by legislative rule.

(f) Upon receipt of a written request and an affidavit signed by the individual or the individual’s parent or legal guardian indicating the request for a new birth certificate is for the purpose of ensuring the certificate accurately reflects their gender and is not for any fraudulent or other unlawful purpose, the State Registrar shall issue a new certificate with the requested designation of male, female, or X.

(f) (g) If no certificate of birth is on file for the person for whom a new certificate of birth is to be established under this section, a delayed certificate of birth must be filed with the state Registrar as provided in section fourteen or fifteen of this article before a new certificate of birth is established, except that when the date and place of birth and parentage have been established by a court of competent jurisdiction, a delayed certificate is not required.

(g) (h) When a new certificate of birth is established by the state Registrar, all copies of the original certificate of birth in the custody of any other custodian of vital records in this state shall be sealed from inspection or forwarded to the state Registrar, as he or she shall direct.

(h) (i) Upon receipt of the documentation set forth in subdivision (1) of this subsection, the state Registrar shall prepare and register a certificate in this state for a person born in a foreign country who is not a citizen of the United States and who was adopted through a court of competent jurisdiction in this state.

(1) The State Registrar shall establish the certificate upon receipt of:

(A) A certificate of adoption from the court ordering the adoption;

(B) Proof of the date and place of the child’s birth; and

(C) A request that the certificate be prepared, from the court, the adopting parents, or the adopted person if he or she that person has attained the age of 18 years.

(2) The certificate shall be labeled “Certificate of Foreign Birth” and shall show the actual country of birth. The certificate shall include a statement that it is not evidence of United States citizenship for the person for whom it is issued.

(3) After registration of the certificate of birth in the new name of the adopted person, the State Registrar shall seal and file the certificate of adoption, which may not be inspected except for the administration of the system of vital statistics, or upon order of a court of competent jurisdiction, or as provided by legislative rule or as otherwise provided by state law.


CHAPTER 17B. MOTOR VEHICLE DRIVER’S LICENSES.


ARTICLE 2. ISSUANCE OF LICENSE, EXPIRATION AND RENEWAL.


§17B-2-8. Issuance and contents of licenses; fees.


(a) The division shall, upon payment of the required fee, issue to every applicant qualifying therefor a driver’s license, which shall indicate the type or general class or classes of vehicle or vehicles the licensee may operate in accordance with this chapter or chapter 17E of this code, or motorcycle-only license. Each license shall contain a coded number assigned to the licensee, the full legal name, to be displayed in a manner selected by the applicant when supported by appropriate documentation and consistent with federal law, this code, and existing system capabilities of the division, date of birth, residence address, a brief description and a color photograph of the licensee, a sex designation of M, F or X as selected by the applicant, and either a facsimile of the signature of the licensee or a space upon which the signature of the licensee is written with pen and ink immediately upon receipt of the license. No license is valid until it has been so signed by the licensee.

(b) A driver’s license which is valid for operation of a motorcycle shall contain a motorcycle endorsement. A driver’s license which is valid for the operation of a commercial motor vehicle shall be issued in accordance with chapter 17E of this code.

(c) The division shall use such process or processes in the issuance of licenses that will, insofar as possible, prevent any identity theft, alteration, counterfeiting, duplication, reproduction, forging or modification of, or the superimposition of a photograph on, the license.

(d) The fee for the issuance of a Class E driver’s license is $5 per year for each year the license is valid. The Division of Motor Vehicles may adjust this fee every five years on September 1, based on the U.S. Department of Labor, Bureau of Labor Statistics most current Consumer Price Index: Provided, That an increase in such fee may not exceed 10 percent of the total fee amount in a single year. The fee for issuance of a Class D driver’s license is $6.25 per year for each year the license is valid. An additional fee of 50 cents  shall be collected from the applicant at the time of original issuance or each renewal, and the additional fee shall be deposited in the Combined Voter Registration and Driver’s Licensing Fund established pursuant to the provisions of §3-2-12 of this code. The additional fee for adding a motorcycle endorsement to a driver’s license is $1 per year for each year the license is issued.

(e) The fee for issuance of a motorcycle-only license is $2.50 for each year for which the motorcycle license is valid. The fees for the motorcycle endorsement or motorcycle-only license shall be paid into a special fund in the State Treasury known as the Motorcycle Safety Fund as established in §17B-1D-7 of this code.

(f) The fee for the issuance of either the level one or level two graduated driver’s license as prescribed in §17B-2-3a of this code is $5.

(g) The fee for issuance of a federally compliant driver’s license or identification card for federal use is $10 in addition to any other fee required by this chapter. Any fees collected under the provisions of this subsection shall be deposited into the Motor Vehicle Fees Fund established in accordance with §17A-2-21 of this code.

(h) The division may use an address on the face of the license other than the applicant’s address of residence if:

(1) The applicant has a physical address or location that is not recognized by the post office for the purpose of receiving mail;

(2) The applicant is enrolled in a state address confidentiality program or the alcohol test and lock program;

(3) The applicant’s address is entitled to be suppressed under a state or federal law or suppressed by a court order; or

(4) At the discretion of the commissioner, the applicant’s address may be suppressed to provide security for classes of applicants such as law-enforcement officials, protected witnesses, and members of the state and federal judicial systems.

(i) Notwithstanding any provision in this article to the contrary, a valid military identification card with an expiration date issued by the United States Department of Defense for active duty, reserve, or retired military personnel containing a digitized photo and the holder’s full legal name may be used to establish current full legal name and legal presence. The commissioner may at his or her discretion expand the use of military identification cards for other uses as permitted under this code or federal rule.

(j) The division may accept any document as proof of identity, residency, and lawful presence that is acceptable under the Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302 (May 11, 2005), 49 U.S.C. §30301 et seq.

§17B-2-13. Notice of change of address, gender or name.


(a) Whenever any person after applying for or receiving a driver’s license moves from the address named in the application or in the license issued to the person, or when the name of a licensee is changed by marriage or otherwise, or when the person has changed their gender the person shall within 20 days thereafter notify the division in writing of the old and new addresses, the new sex designation, or of the former and new names and of the number of any license then held by the person on the forms prescribed by the division.

(b) Whenever any person, after applying for or receiving a driver’s license, is assigned a new address by the United States Postal Service or other legally constituted authority, the person shall notify the division in writing of the old and new address and of the number of any license held by the person. The notification of change of address shall be made at least 20 days prior to the final date on which mail with the old address is deliverable by the United States Postal Service.

(c) The provisions of section one, article five of this chapter relating to imprisonment do not apply to persons who violate the provisions of this section.


CHAPTER 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.


Article 19. Petitions for change of gender.

§55-19-1. Petition to circuit court or family court for change of gender; contents thereof; notice of application.

(a) A person desiring legal recognition of a change of gender may apply to the circuit court or family court of the county in which the person resides by a verified petition setting forth and affirming the following:

(1) That they have been a bona fide resident of the county for at least six months prior to the filing of the petition or that they are a nonresident of the county who was born in the county and was previously a resident of the county for a period of at least 15 years;

(2) The appropriate gender designation of the claimant, which shall include “male”, “female”, or “x”.

(3) The legal recognition of gender is not for purposes of avoiding debt or creditors;

(4) The legal recognition of gender sought is not for purposes of avoiding any state or federal law;

 (5) The legal recognition of gender sought is not for any purpose of evading detection, identification or arrest by any local, state or federal law-enforcement agency;

 (6) The legal recognition of gender sought is not for any improper or illegal purpose;

 (7) Whether or not the petitioner desires to protect his or her identity for personal safety reasons;

 (8) That, pursuant to §55-19-3 (b) of the code, if petitioner seeking the legal recognition of gender is registered sex offender pursuant to any state or federal law or is a convicted felon in any jurisdiction, the claimant has notified the appropriate authorities of the petitioner’s intent to change their gender designation; and

(b) The petitioner shall provide a sworn affidavit indicating the request for legal recognition of their gender is for the purpose of ensuring their documents and records accurately reflect their gender and is not for any fraudulent or other unlawful purpose.

§55-19-2. Objections to change of gender.


Any person who knows of any reason why the gender of any such petitioner should not be changed, may appear and shall be heard in opposition to such change.

§55-19-3. When court may or may not order change of gender.


(a) Upon the filing of the verified petition and being satisfied that no injury will be done to any person by reason of the change, and upon a finding that the applicant meets all requirements of this article, and that the change is not desired because of any fraudulent or evil intent on the part of the petitioner, the court or judge shall order a change of gender. The court shall not deny a petition based on the appearance or medical history of the petitioner.

(b) The court shall require proof of notice of the recognition of the petitioner’s gender to any state official with supervision over the petitioner for any petitioner who:

(1) Is required to register with the State Police pursuant to the provisions of §15-12-1 et seq. of this code, during the period that the person is required to register;

(2) Has been convicted of first-degree murder in violation of §61-2-1 of this code, for a period of 10 years after the person is discharged from imprisonment or is discharged from parole, whichever occurs later.

(3) Has been convicted of violating any provision of §61-2-14a of this code, for a period of 10 years after the person is discharged from imprisonment or is discharged from parole, whichever occurs later.

§55-19-4. Recordation of order changing gender.


(a) When such an order is made, the petitioner shall forthwith cause a certified copy thereof to be filed in the office of the clerk of the county commission of the county where petitioner resides, and such clerk shall record the same in a book to be kept for the purpose. For such recording and indexing the clerk shall be allowed the same fee as for a deed.       

(b) The court shall issue no few than three certified copies of the order to the petitioner for the purposes of changes pursuant to §16-5-15 and §17B-2-13 of this code.

§55-19-5. Joint petition for name and gender change.


A petition made pursuant to this article may be made and considered jointly with a petition pursuant to §48-25-1 et seq. of this code.

 

NOTE: The purpose of this bill is to remove medical and legal barriers to obtaining an appropriate gender marker on state documents, and provide an appropriate gender marker option for nonbinary, intersex, and other individuals.

Strike-throughs indicate language that would be stricken from a heading or the present law, and underscoring indicates new language that would be added.

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