SB38

SECTION 1. The legislature finds that in 2019, it passed H.B. No. 1165, which the governor signed into law as Act 148. This law expanded gender markers for Hawai‘i's driver's licenses and state identification cards. The legislature further acknowledges that on July 1, 2020, that law went into effect smoothly. In other states, such as Washington, the third gender marker has also been instated for other official documents, such as birth certificates. This ensures that an individual's gender markers match on the individual's driver's license, state identification card, and other official documents. The purpose of this Act is to add the third gender marker "X" as a third gender option on birth certificates.

SECTION 2. Section 338-17.7, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The department of health shall establish, in the following circumstances, a new certificate of birth for a person born in this State who already has a birth certificate filed with the department and who is referred to below as the "birth registrant":

(1) Upon receipt of an affidavit of paternity, a court order establishing paternity, or a certificate of marriage establishing the marriage of the natural parents to each other, together with a request from the birth registrant, or the birth registrant's parent or other person having legal custody of the birth registrant, that a new birth certificate be prepared because previously recorded information has been altered pursuant to law;

(2) Upon receipt of a certified copy of a final order, judgment, or decree of a court of competent jurisdiction that determined the nonexistence of a parent and child relationship between a person identified as a parent on the birth certificate on file and the birth registrant;

(3) Upon receipt of a certified copy of a final adoption decree, or of an abstract of the decree, pursuant to sections 338-20 and 578-14;

(4) Upon receipt of an affidavit [~~from a United States licensed physician or physician assistant attesting that:~~

~~(A)~~ ~~The physician or physician assistant has a bona fide provider-patient relationship with the birth registrant;~~

~~(B)~~ ~~The physician or physician assistant has treated and evaluated the birth registrant and has reviewed and evaluated the birth registrant's medical history;~~

~~(C)~~ ~~The birth registrant has had appropriate clinical treatment for gender transition to the new gender and has completed the transition to the new gender; and~~

~~(D)~~ ~~The new gender does not align with the sex designation on the birth registrant's birth certificate;~~]

for a change in sex designation on a person's own birth certificate by an adult, or for a change in sex designation of a minor's birth certificate by a minor's parent or legal guardian; provided that:

(A) Only an adult may apply for a change in sex designation on a certificate for oneself;

(B) Only the parent or legal guardian of a minor may apply for a change of sex designation on the minor's birth certificate;

(C) To change sex designation on a birth certificate, an adult, or parent or legal guardian of a minor, shall submit to the department a completed, signed, and dated application provided by the state registrar that includes, at a minimum, the following information for the person named on the birth certificate:

(i) Full name listed on the birth certificate;

(ii) Date of birth;

(iii) Place of birth;

(iv) Both parents' full names as listed on the birth certificate;

(v) Contact information; and

(vi) Sex designation requested (male, female, or X);

(D) If an adult, or parent or legal guardian, cannot provide the information in paragraph (C), the adult, or parent or legal guardian, shall submit a written explanation of the circumstances to the state registrar. The department may change the sex designation on the birth certificate if, in the state registrar's judgment, these circumstances prevent the adult, or parent or legal guardian, from knowing one or more of the required items;

(E) The sex designation change application of an adult shall be notarized and signed under penalty of perjury;

(F) The sex designation change application of a minor shall include a signed statement by the minor's licensed health care provider attesting that:

(i) The minor identified on the application is under the care of the provider; and

(ii) The provider has determined the request to change sex designation on the birth certificate is consistent with the minor's identity; and

(G) Only licensed health care providers whose scope of practice allows for attestation of a sex designation change may provide this attestation;

(H) As used in this paragraph:

"Adult" means a person who is at least eighteen years of age or older, or is an emancipated minor under chapter 577-25; and

"X" means a third non-binary gender option;

(5) Upon request of a law enforcement agency certifying that a new birth certificate showing different information would provide for the safety of the birth registrant; provided that the new birth certificate shall contain information requested by the law enforcement agency, [~~shall~~] be assigned a new number and filed accordingly, and [~~shall~~] not substitute for the birth registrant's original birth certificate, which shall remain in place."

SECTION 3. The department of health shall create and make available the necessary forms for the application for the establishment of a new certificate of birth for all categories listed in section 338-17.7, Hawaii Revised Statutes.

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect on July 1, 2023; provided that section 2 shall take effect on January 1, 2024.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	38
THIRTY-SECOND LEGISLATURE, 2023
STATE OF HAWAII