Title of Regulation: 12VAC5-550. Board of Health Regulations Governing Vital Records (amending 12VAC5-550-320).

Statutory Authority: §§ 32.1-12 and 32.1-250 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: October 4, 2019.

Agency Contact: Janet Rainey, State Registrar, Virginia Department of Health, 2001 Maywill Street, Richmond, VA 23230, telephone (804) 662-6200, FAX (804) 662-6256, or email janet.rainey@vdh.virginia.gov.

Basis: The regulation is promulgated under the authority of §§ 32.1-12 and 32.17-250 of the Code of Virginia. Section 32.1-12 grants the State Board of Health the legal authority to make, adopt, promulgate, and enforce such regulations necessary to carry out the provisions of Title 32.1 of the Code of Virginia and other laws of the Commonwealth administered by it. Section 32.1-250 of the Code of Virginia requires the State Board of Health to install, maintain, and operate the only system of vital records throughout the Commonwealth.

Purpose: This regulatory action is essential to ensure the accuracy of the Board of Health Regulations Governing Vital Records (12VAC5-550). Ensuring the integrity of the Commonwealth's system of vital records is essential to the welfare of the citizens of the Commonwealth. The purpose of the proposed amendments is to conform the requirements of this section to the provisions of the Code of Virginia.

Substance: The proposed amendments to 12VAC5-550-320 revise the requirements to amend the birth certificate of a person who has had a medical procedure to change sex. The proposed amendments allow that a new certificate of birth may be prepared by the State Registrar for a person born in the Commonwealth upon (i) receipt of a certified copy of an order of a court of competent jurisdiction indicating that the sex of an individual has been changed by medical procedure, and (ii) request of such person. The amendments conform the regulation to the Code of Virginia.

Issues: The primary advantage to the public, the agency, and the Commonwealth is to enhance the integrity of the regulations governing vital records and in turn the system of vital records within the Commonwealth. There are no known disadvantages to the public, the regulated entities, business entities, or the Commonwealth.

Small Business Impact Review Report of Findings: This proposed regulatory action serves as the report of the findings of the regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Health (Board) proposes to amend language concerning how to have a new certificate of birth issued to reflect a change in gender.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. The current language in the regulation concerning the required process to have a new certificate of birth issued to reflect a change in gender conflicts with the Code of Virginia (Code). The Board proposes to amend the language to match the requirements in the Code. Since when the Code and regulatory language conflict, the Code presides, the proposed amendments to the regulation would have no impact in practice beyond reducing the likelihood that readers of the regulation would be misled concerning the presiding requirements.

Businesses and Entities Affected. Beyond potentially reducing confusion among readers of the regulation, the proposed language amendments do not affect any businesses or entities.

Localities Particularly Affected. The proposed amendments do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments do not affect employment.

Effects on the Use and Value of Private Property. The proposed amendments do not affect the use and value of private property.

Real Estate Development Costs. The proposed amendments do not affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed amendments do not affect costs for small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendments do not adversely affect businesses.

Localities. The proposed amendments do not adversely affect localities.

Other Entities. The proposed amendments do not adversely affect other entities.

Agency's Response to Economic Impact Analysis: The Virginia Department of Health concurs with the economic impact analysis.

Summary:

The proposed amendments provide that upon receipt of a certified copy of an order of a court of competent jurisdiction indicating that the sex of an individual has been changed by medical procedure and request of that individual, the individual may be issued a new birth certificate by the State Registrar. The amendments conform the regulation to the Code of Virginia.

12VAC5-550-320. Change of sex.

Except as provided in subdivision 3 of 12VAC5-550-450, upon presentation receipt of acceptable evidence (preoperative diagnosis, postoperative diagnosis and description of procedure) and a notarized affidavit from the physician performing the surgery, a certified copy of an order of a court of competent jurisdiction indicating that the sex of an individual has been changed by medical procedure and upon request of such person, a new certificate of birth may be prepared by the State Registrar for a person born in this Commonwealth whose sex has been changed by surgical gender reassignment procedure. A certified copy of the court order changing the name of the registrant as well as designating the sex of the registrant must be in the possession of the State Registrar together with a request that a new certificate be prepared.