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 K.L., a transgender woman, applied for and received a driver’s license marked female, but it was revoked when the agency discovered she had not submitted proof of surgery.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.