It's hard to find the silver lining in the confused and unsettled results over last week's Anchorage Proposition 5 vote — that city's effort to pass by popular vote a law that would protect LGBT people from discrimination in employment, housing, and access to business serving the public. Perhaps when the votes are all counted, we'll discover that the announced loss was premature and inaccurate.
But while we wait for the final results, there is one quiet success for transgender Alaskans that is worth celebrating — a recent court ruling addressing the constitutionality of forcing transgender Alaskans to carry a driver's license or state ID that lists their wrong sex designation. Prior to this ruling, a transgender person was allowed to change the sex listed on his or her license, but only after undergoing risky and expensive surgery that is unnecessary for, and unwanted by, many transgender people. Starting in early 2011, the Alaska Division of Motor Vehicles stopped changing the sex on any transgender person's licenses. But on March 12, a court ruled in the case of K.L. v. State of Alaska that this practice is unconstitutional.
K.L. is a transgender woman who from a young age identified as a girl, even though she was designated male at birth. Since 2009, K.L. has lived and presented full-time as a woman. She makes her living as a pilot, and her employer and coemployees have supported her transition and accepted her as a woman. As part of her transition, she changed the sex on her airman certificate, work identification, and passport. She also asked the DMV to change the sex designation on her license to female. She was given a new license showing her as female, but then received a letter telling her to return it or prove that she had undergone certain surgeries. She appealed and was then told that absent an official regulation, the DMV had no authority to change the gender on her license. She appealed again and finally prevailed.
In the more than a year period since it became clear that the DMV needed to pass a regulation to allow gender changes, the DMV had done nothing to make that happen, but the superior court's ruling put an end to the DMV inertia. After analyzing the important privacy interests at stake — K.L.'s interest in protecting her transgender status and medical condition from public disclosure — the court concluded that the DMV's refusal to change the gender listed on a license violated K.L.'s privacy by forcing her to reveal this private information every time she shows her license.
There are one or two previous cases recognizing the important privacy interests of persons in their transgender identity, but K.L. is the only decision we're aware of where a United States court recognized a transgender person's constitutionally protected privacy interests in having the sex designation on her driver's license match her "lived gender expression of identity."
Our hope is that K.L's success will lead to a state-wide policy change that will make it possible for other transgender Alaskans to carry a license that matches their "gender expression and to end the risks they currently face from being forced to carry an inaccurate license or state id — possible harassment, embarrassing questions, and even physical injury.