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Excuse Me, Ma'am, This Isn’t Your ID

James Esseks,
Director, LGBTQ & HIV Project,
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July 26, 2011

Last fall, K.L., an Alaskan who transitioned to living as a woman two years ago, got her local Department of Motor Vehicles office to change the gender marker on her driver’s license from M to F. She was thrilled to have her identity documents reflect her true gender. Then she got the letter from the state – prove you’ve had sex reassignment surgery or we’ll take the new license back.

The importance of the issue is apparent – if you look like a woman, but your ID documents say you’re a guy (or vice versa), you can face daily harassment in encounters with the police, the TSA, or just the guys at the car repair shop who want to see ID when you use a credit card to pay for your tune-up. Even aside from the risk of harassment or violence, being forced to show an inaccurate driver’s license is an utterly unnecessary invasion of privacy and undermines the medical standard of care for transgender people who transition, which is to live full-time consistently with their gender identity. That’s harder to do when your driver’s license has the wrong gender on it. And the inaccurate license is a constant reminder of a gender you’ve struggled to put behind you and of the state’s refusal to accept your true identity. Since many transgender people do not have transition-related surgery at all, and very small numbers have genital surgery (less than 20% of transgender women, and less than 5% of transgender men, according to an NCTE/Task Force survey), requiring surgery creates significant barriers to accurate ID documents for many transgender people.

Movement-wide, we’ve seen phenomenal progress on identity documents in some places, the prime example being the State Department’s new passport policy, which allows transgender people to change the gender marker on their passports based on a doctor’s letter attesting to clinical treatment for gender transition (no surgery or hormone therapy required). In some states, the new passport policy is proving very persuasive with officials in motor vehicle departments, who are no longer requiring surgery.

But in other states, policy advocacy has hit a wall, so the ACLU has headed to court, hoping both to change the policies and to establish legal precedents that we can use in other states as well.

In Alaska, we’ve sued the state on behalf of K.L., whose pilot’s license and passport have her correct gender, raising privacy and equal protection claims under the state constitution in an effort to get rid of the surgery requirement altogether.

In Illinois, we’ve also gone to court about gender markers, in a follow-up to a case we brought two years ago. In 2009, we sued the state Department of Public Health over its requirement that people have genital surgery before they can change the gender marker on their birth certificates. We represented a transgender man who had decided, in consultation with his doctor, that genital reconstruction was not something he needed or wanted. We argued that Illinois’s constitutional guarantee of personal autonomy, especially around medical decision-making, meant that Illinois couldn’t force people to undergo medical procedures that they didn’t want and their doctors didn’t recommend, just in order to change their gender marker.

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Rather than answer our lawsuit in court, Illinois issued revised birth certificates to our clients in an effort to make the case go away. The state promised to fix the genital surgery requirement through new regulations, but our patience wore out after two years of promises but no real solution. So this spring we went back to the Illinois courts with a new case, this time a class action (so any changes will have to fix the problem for everyone, not just for the plaintiffs), and a determination to get rid of the genital surgery requirement once and for all.

In response to this new lawsuit, the state has proposed a revised regulation that does not explicitly require genital surgery. And once again they’ve issued corrected birth certificates to our clients. This is progress, but we’re still pushing in court for a resolution that provides better assurance that the state will not interpret the new regulation to require genital surgery.

Other states have gender marker change rules that are similarly restrictive, and we’re hoping that Alaska and Illinois, with their strong privacy and personal autonomy law, will lead the way in striking down these regressive rules.

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