This is a bill that I authored and endeavored to present to the Alabama legislature. No senators or representatives were willing to take the risk. TO BE VERY CLEAR, THIS PROPOSED BILL NEVER BECAME LAW. In 2023 I decided to make it available online in hopes that the right eyes might find it and effect the change that I could not. I would explain that this is not a perfect bill. Humans are not perfect. Society is not perfect. This was a design that I thought could pass, a design which reached tolerable compromises, a design that could allay conservative concerns and objections and add teeth to prevent abuse.
Alabama Gender Recognition, Equity, and Enforcement (A.G.R.E.E)
Whereas a federal civil rights action has this week commenced in United States District Court (Corbitt, et al. v. Taylor, et al., M. D. ALA. 2:18-CV-00091) to force arbitrary changing of sex/gender markers on driver licenses and non-driver identification cards; and
Whereas the Alabama Media Group (“AL.com”) reports that Corbitt v. Taylor is patterned after prior successful litigation against the states of Alaska and Michigan; and
Whereas Alabamians are loath to allow federal courts to dictate state and local policy; and
Whereas accurate and precise vital records and identity documents are crucial interests of the State; but
Whereas two-thirds of states and the District of Columbia allow residents to change their sex/gender markers on driver licenses and non-driver identification cards; and
Whereas some jurisdictions even permit selection of an ambiguous “X” designation; and
Whereas such measures conceivably hinder legitimate law enforcement interests and potentially impede provision of emergent medical care to incapacitated persons; and
Whereas section § 202(b)(3) of the federal REAL ID Act of 2005 (H.R. 1268) only requires specification of an individual’s “gender” on driver licenses and identification cards; and
Whereas section § 202(b)(3) of the federal REAL ID Act of 2005 (H.R. 1268) does NOT require enumeration of a cardholder’s “sex”; and
Whereas an established and appreciable body of peer-reviewed academic and scientific research indicates that “SEX” and “GENDER” are different and distinct human traits; and
Whereas SEX is a BIOLOGICAL FACT irrefutably defined by the twenty-third chromosomal pair of a person’s DNA and the anatomical features flowing therefrom; and
Whereas GENDER is a semi-artificial sociocultural construct reflecting a person’s identification and expression of biological sex; and
Whereas the State of Alabama wishes to ensure RATIONAL and LOGICAL policy, to resolve legal and social conflicts, to respect all persons equally, to set itself apart as a new-century leader in civil rights, and to present a sound model for nation-wide implementation;
BE IT THEREFORE RESOLVED AS ABOVE AND ENACTED AS FOLLOWS:
A BILL
TO BE ENTITLED
AN ACT
Section 1. Section 22-9A-1 (“Health, Mental Health, and Environmental Control” » “Vital Statistics”) of the Code of Alabama 1975, is amended to read as follows:
Ҥ22-9A-1. Definitions.
“For the purposes of this chapter, the following words shall have the following meanings unless the context clearly indicates otherwise:
“(1) DEAD BODY. A human body or parts of the human body from the condition of which it reasonably may be concluded that death occurred.
“(2) FETAL DEATH. Death prior to the complete expulsion or extraction from the mother of a product of human conception, irrespective of the duration of pregnancy and which is not an induced termination of pregnancy. The death is indicated by the fact that after the expulsion or extraction the fetus does not breathe or show any other evidence of life, such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles. Heartbeats are to be distinguished from transient cardiac contractions; respirations are to be distinguished from fleeting respiratory efforts or gasps.
“(3) FILE. The presentation of a vital record provided for in this chapter for registration by the Office of Vital Statistics.
“(4) FINAL DISPOSITION. The burial, interment, cremation, removal from the state, or other authorized disposition of a dead body or fetus.
“(5) GENDER. The confluence of internal affect and outward expression of a person’s sex identity within a given sociocultural framework. Gender shall be presumed consistent with the person’s sex under the laws of the State unless decreed differently by a court of competent jurisdiction.
“(5)(6) INDUCED TERMINATION OF PREGNANCY. The purposeful interruption of an intrauterine pregnancy with the intention other than to produce a live-born infant and which does not result in a live birth. This definition excludes management of prolonged retention of products of conception following fetal death.
“(6)(7) INSTITUTION. Any establishment, public or private, which provides inpatient or outpatient medical, surgical, or diagnostic care or treatment, mental treatment, or nursing, custodial, or domiciliary care.
“(8) INTERSEX. A medical condition present from birth resulting from karyotype abnormalities, gonadal dysgenesis, androgen insensitivity disorders, or other similar physiological disorder as determined by a duly licensed physician which results in an anatomically ambiguous or genetically indeterminate sex.
“(7)(9) LIVE BIRTH. The complete expulsion or extraction from the mother of a product of human conception, irrespective of the duration of pregnancy, which, after such expulsion or extraction, breathes, or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached. Heartbeats are to be distinguished from transient cardiac contractions; respirations are to be distinguished from fleeting respiratory efforts or gasps.
“(8)(10) PHYSICIAN. A person authorized or licensed to practice medicine or osteopathy pursuant to the laws of this state.
“(9)(11) REGISTRATION. The acceptance by the Office of Vital Statistics and the incorporation of vital records as provided for in this chapter into its official records.
“(12) SEX. The biological trait defined by a person’s genetic structure and anatomic features resulting therefrom, either male, female, or intersex. For purposes of compiling vital records, sex may be inferred by a duly licensed physician or midwife based upon external physical examination of an infant at or near the time of birth, but such presumption shall be subject to summary correction at any time on the basis of conclusive medical analysis of the person’s DNA.
“(10)(13) SYSTEM OF VITAL STATISTICS. The registration, collection, preservation, amendment, and certification of vital records; the collection of other reports required by this chapter; and activities related thereto, including, but not limited to, the tabulation, analysis, publication, and dissemination of vital statistics.
“(11)(14) VITAL RECORD. Certificates of birth, death, marriage, divorce, and related data.
“(12)(15) VITAL STATISTICS. The data derived from certificates and reports of birth, death, fetal death, induced terminations of pregnancy, marriage, divorce, and related reports.”
Section 2. Section 22-9A-19 (“Health, Mental Health, and Environmental Control” » “Vital Statistics”) of the Code of Alabama 1975, is amended to read as follows:
Ҥ22-9A-19. Amendment of vital records.
“(a) A certificate registered under this chapter may be amended only in accordance with this chapter and rules adopted by the board to protect the integrity and accuracy of vital records.
“(b) A certificate that is amended under this section shall be marked ‘AMENDED’ except as otherwise provided in this section. The date of amendment and a summary description of the evidence submitted in support of the amendment shall be made a part of the record. Additions or minor corrections may be made to certificates within one year after the date of the event without the certificate being marked ‘AMENDED.’ The board shall prescribe by rules the conditions under which additions or minor corrections may be made.
“(c) Amendment of names on a birth certificate.
“(1) Until the fifth birthday of the registrant, given names for a child whose birth was recorded without given names may be added to the certificate upon affidavit of both parents, or the mother in the case of a child born out of wedlock, or the father in the case of the death or incapacity of the mother, or the mother in the case of the death or incapacity of the father, or the guardian or agency having legal custody of the registrant. The certificate shall not be marked ‘AMENDED.’
“(2) Until the first birthday of the child, given names may be amended upon affidavit of both parents, or the mother in the case of a child born out of wedlock, or the father in the case of the death or incapacity of the mother, or the mother in the case of the death or incapacity of the father, or the guardian or agency having legal custody of the registrant. The certificate shall be marked ‘AMENDED.’ After one year from the date of birth, the provisions of subdivision (c)(3) of this section shall be followed.
“(3) Upon receipt of a certified copy of an order from a court with competent jurisdiction changing the name of a person born in this state, the State Registrar shall amend the certificate of birth to show the new name.
“(d) Upon receipt of a certified copy of an order of a court of competent jurisdiction indicating that the sex of an individual born in this state has been changed by surgical procedure and that the name of the individual has been changed, or that an individual born intersex has received an order from such court establishing that person’s sex, or that the person’s sex is proven by medical DNA analysis to have been incorrectly recorded, the certificate of birth of the individual shall be amended as prescribed by rules to reflect the change(s).
“(e) If an applicant does not submit the minimum documentation required in the rules for amending a vital record, or if the State Registrar has reasonable cause to question the validity or adequacy of the sworn statements or the documentary evidence of the applicant, the State Registrar shall not amend the vital record, unless the deficiencies are corrected.
“(f) Once an amendment of an item is made on a vital record, that item shall not be amended again except upon receipt of an order from a court of competent jurisdiction.”
Section 3. Section 22-9A-19.1 (“Health, Mental Health, and Environmental Control” » “Vital Statistics”) of the Code of Alabama 1975, is created to read as follows:
Ҥ22-9A-19.1. Recordation of decree of gender inconsistent with sex.
“(a) A person wishing to assert a gender inconsistent with her or his natural sex, may petition the probate court of his or her county of principal residence in the same manner as she or he would petition for legal change of name. The probate court shall inquire into the matter to its satisfaction and, upon finding that the petitioner knowingly, honestly, and voluntarily makes the request, shall grant the petition and decree that the petitioner’s gender thereafter be known as female, male, nonbinary, transfemale, or transmale irrespective of the petitioner’s genetic and/or anatomical sex.
“(b) Upon the specific and highly persuasive prayer of the petitioner, the probate court shall be authorized to order the suppression of the petitioner’s sex designation on state documents if the court is satisfied as to a prevailing individual right to medical privacy, and the court shall give great deference to such request from a petitioner born intersex as set forth in §22-9A-1 of the Code of Alabama.
“(c) Upon issuance of any such court order, a petitioner born in this state shall have the right to present the order to the Office of Vital Statistics and have the same annexed to her or his certificate of birth, but in no event shall the contents of the certificate of birth be changed, except as provided in §22-9A-19(d). Such judicial decree of gender inconsistent with sex shall thereafter form a permanent part of that complete record and the word ‘ATTACHMENT’ shall appear on the face of the certificate of birth.
“(d) A judicial decree of gender inconsistent with sex shall not automatically entitle the individual to any special, additional, or other right, privilege, standing, or entitlement under state or federal law now existing or hereafter enacted unless such law specifically and narrowly operates with regard to gender exclusive of sex.
“(e) A person born in this state, but residing outside of the state shall have the same right to the procedures set forth herein except that the petition shall be brought in the probate court of the county of his or her birth.”
Section 4. Section 12-13-1 (“Courts” » “Probate Courts”) of the Code of Alabama 1975, is amended to read as follows:
Ҥ12-13-1. Jurisdiction generally; validity and presumptions to be accorded to judgments, orders, etc., of probate courts.
“(a) The probate court shall have original and general jurisdiction as to all matters mentioned in this section and shall have original and general jurisdiction as to all other matters which may be conferred upon them by statute, unless the statute so conferring jurisdiction expressly makes the jurisdiction special or limited.
“(b) The probate court shall have original and general jurisdiction over the following matters:
“(1) The probate of wills.
“(2) The granting of letters testamentary and of administration and the repeal or revocation of the same.
“(3) All controversies in relation to the right of executorship or of administration.
“(4) The settlement of accounts of executors and administrators.
“(5) The sale and disposition of the real and personal property belonging to and the distribution of intestate’s estates.
“(6) The appointment and removal of guardians for minors and persons of unsound mind.
“(7) All controversies as to the right of guardianship and the settlement of guardians’ accounts.
“(8) The allotment of dower in land in the cases provided by law.
“(9) The partition of lands within their counties.
“(10) The change of the name and/or gender, but not sex unless a case of intersex birth as defined by §22-9A-1 of the Code of Alabama, of any person residing in their county, upon his or her filing a declaration in writing, signed by him or her, stating the name and gender by which she or he is then known and the name and/or gender to which he or she wishes it to be changed.
“(11) Such other cases as jurisdiction is or may be given to such courts by law in all cases to be exercised in the manner prescribed by law.
“(c) All orders, judgments and decrees of probate courts shall be accorded the same validity and presumptions which are accorded to judgments and orders of other courts of general jurisdiction.”
Section 5. Section 32-6-6 (“Motor Vehicles and Traffic” » “Licenses and Registration”) of the Code of Alabama 1975, is amended to read as follows:
Ҥ32-6-6. Contents of driver licenses and nondriver identification cards; photo specifications; fee for photo license or card; procedure when gender inconsistent with sex.
“(a) Each driver‘s license or nondriver identification card issued by the Department of Public Safety Alabama Law Enforcement Agency, except temporary permits or other special circumstances as determined by the Director of the Department of Public Safety Alabama Law Enforcement Agency, shall bear thereon a distinguishing number assigned to the licensee cardholder and a color photograph of the licensee cardholder, the name, birthdate, address, and a description of the licensee height, weight, hair color, eye color, sex, and gender of the cardholder who, for the purpose of identification and as a condition precedent to the validity of the license, immediately upon receipt thereof, shall endorse his or her usual or regular signature upon the license in the space provided thereon, unless a facsimile of the licensee’s signature appears thereon.
“(b) A photo driver’s license and photo nondriver identification card as provided in Section 32-6-4 shall have a photo core that meets the minimum width and length dimensions specified in ANSI standards X4.13-1971 and ANSI standard CR80, plus or minus 1/4 inch. In addition to all current and existing fees, the department may charge an additional fee to recover the cost of producing and issuing photo drivers’ licenses and photo nondriver identification cards. The fee may not exceed ten cents ($.10) over the actual cost of producing and issuing the license or card including the cost of materials, labor costs, telecommunications costs, computer costs, postage, and any other costs incurred in producing and issuing a license or card. Revenues collected under this section shall be used by the department for the sole purpose of this program and any excess shall revert to the General Fund at the end of each fiscal year.
“(c) The driver license or nondriver identification card shall state the cardholder’s sex as either ‘male,’ ‘female,’ or ‘intersex’ consistent with the cardholder’s birth certificate or equivalent proof of personhood.
“(d) The driver license or nondriver identification card shall state the cardholder’s gender consistent with the cardholder’s sex in accordance with §22-9A-1 of the Code of Alabama.
“(e) A person possessing a decree of gender inconsistent with sex from a court of competent jurisdiction may present such order, together with the identity documents required under the federal REAL-ID Act of 2005, and as may be amended, to any state driver license issuance office. The individual’s gender designation then shall be made to conform to such decree, up to the maximum printable characters as set by rule, and a new or replacement driver license or nondriver identification card shall therewith be issued in the same manner as when any driver license or nondriver identification card is issued, replaced, or renewed.
“(f) If the court order provides for the suppression of the petitioner’s sex designation, such suppression shall operate solely to suppress the open disclosure of sex upon the face of the driver license or nondriver identification card and the cardholder’s recorded sex shall persist in the Alabama Law Enforcement Agency database and shall be encoded in any data matrix and/or magnetic stripe which are part of the driver license or nondriver identification card.”
Section 6. Section 13A-11-18 (“Criminal Code” » “Offenses Against Public Order and Decency”) of the Code of Alabama 1975, is created to read as follows:
Ҥ13A-11-18. Criminal misrepresentation of gender or sex.
“(a) A person commits the offense of criminal misrepresentation of gender or sex when that person voluntarily and purposefully pretends to be of a gender or sex other than that person’s customary gender and established sex, or when that person avails himself or herself of a judicial decree of gender inconsistent with sex:
“(1) for the purpose of defrauding the public trust or of gaining access to locations or services to which that person is not otherwise entitled or authorized by law or rule; or
“(2) for the purpose of frustrating identification, apprehension, or service of process by law enforcement in the lawful course of duty; or
“(3) for the purpose of frustrating visual recognition by the public of a person who is a registered criminal offender; or
“(4) for the purpose of obtaining a decree of gender inconsistent with sex with the intent to facilitate or aid the commission of an act herein proscribed.
“(b) The offense of criminal misrepresentation of gender or sex shall not be a lesser included offense to any other criminal offense or violation nor shall any other offense or violation be a lesser included offense to criminal misrepresentation of gender or sex.
“(c) The offense of criminal misrepresentation of gender or sex shall be a class B misdemeanor except when committed in conjunction with some other offense against a person as set forth in Title 13A of the Code of Alabama in which case criminal misrepresentation of gender or sex shall be a class C felony.
“(d) A judicial decree of gender inconsistent with sex shall not automatically preclude prosecution for criminal misrepresentation of gender or sex if it can be overcome by independent, clear, and convincing evidence of criminal wrongdoing prohibited by Title 13A of the Code of Alabama.
“(e) Criminal misrepresentation of gender or sex shall not be construed or applied to abridge any person’s public exercise of Constitutional free speech, expression, or religion, nor a person’s private conduct among consenting persons. Neither shall criminal misrepresentation of gender or sex be construed to establish a normative expectation of the manner in which an individual expresses her or his gender identity.”
Section 7. This act shall be known as the AGREE (Alabama Gender Recognition, Equity, and Enforcement) Act of 2018.
Section 8. This act shall become effective 180 days following its passage and approval by the Governor, or its otherwise becoming law.