In the past few weeks, we’ve seen some groundbreaking victories around the country and around the world in gender marker change requirements for ID documents. Many states and local agencies have required transgender people to undergo sex reassignment surgery before changing their gender markers to reflect their current identities on documents like driver’s licenses and birth certificates. For many transgender people, these surgeries are expensive or unwanted, or both, and can amount to forced sterilization when done only to access appropriate ID. Recent wins for transgender plaintiffs in Alaska, New York City, and Ontario, Canada may help advocates fight for more humane policies.
In a case brought by the ACLU, an Alaskan court ruled in March that the state DMV’s refusal to allow transgender people to change the gender marker on their driver’s license violates their privacy rights under Alaska’s constitution. Due to an earlier invalidation of the DMV’s policy requiring proof of surgery before allowing gender marker changes, the DMV had no gender marker change procedure for over a year. K.L., a transgender woman, applied for and received a driver’s license marked female, but it was revoked when the agency discovered she had not submitted proof of surgery.
The Alaska Superior Court held that the DMV’s lack of a gender marker change procedure violated Alaska’s constitution. The court found that a person’s transgender status is “private, sensitive personal information,” and preventing transgender people from obtaining licenses that correspond with their gender identity threatens the disclosure of this information any time they show their license. This is likely the first U.S. case in which a court recognized a transgender person’s constitutionally protected privacy interests in having the gender marker on her driver’s license match her “lived gender expression of identity.”
New York City
A New York City court recently ordered the City Department of Health and Mental Hygiene to reconsider its refusal to issue a transgender man a new birth certificate reflecting his male gender. Although the man had undergone sex reassignment surgery and presented a letter from his surgeon, the Department insisted on further documentation, including a detailed surgical record and a psychological evaluation, to ensure the transition was “permanent.”
The court scolded the Department for having “a certain ignorance . . . of the lengthy transition process and the lives and experience of transgender people.” Although it did not rule on the constitutionality of the Department’s surgery requirement, the court concluded that there was “no rational reason” behind some of the Department’s other demands and ordered it to reconsider his application.
The Transgender Legal Defense & Education Fund filed a suit last year challenging the Department’s surgery requirement, and a decision in that case has not yet been reached.
A court in Ontario, Canada invalidated the province’s Vital Statistics Act requirement that transgender people must undergo sex reassignment surgery before changing the gender marker on their birth certificate. The court held that the requirement violated the equal rights provision of Ontario’s Human Rights Code because it had a distinct and disadvantageous effect on transgender people on the basis of sex and/or disability. The court reasoned that no other people are required to take the “extraordinary step of surgically altering [their] body” to obtain an accurate birth certificate. Further, the requirement “perpetuates the disadvantage, prejudice and stereotyping” experienced by transgender people and therefore impermissibly discriminates against them.
We hope these victories will help push policy change in states and cities around the country. This issue is especially important in light of the recent passage of strict voter ID laws in several states. These laws grant election inspectors discretion to challenge a voter’s qualification to vote based on a lack of resemblance between the voter and the photo id they present. When combined with harsh surgical requirements for obtaining gender-appropriate identification, these laws not only put transgender citizens at heightened risk of harassment and intimidation, but imperil their ability to participate in the democratic process.
We urge state and local activists to leverage these wins by helping policymakers and community leaders understand the privacy and equal protection implications of policies that use surgical requirements to bar transgender people’s access to appropriate and accurate IDs.
Read the full opinions in these cases: