BY ARTHUR S. LEONARD | A federal judge has refused to dismiss a claim by six transgender Michiganders that a state policy governing changes of sex designation on driver’s licenses and personal identification cards violates their constitutional privacy rights.
In a November 16 ruling, Senior US District Judge Nancy G. Edmunds found that transgender people have a fundamental right of privacy under the 14th Amendment regarding their gender identity. That right, she concluded, was heavily burdened by the state’s policy.
in 2011, adopted a policy under which a “certified birth certificate showing the sex of the applicant” was the only acceptable form of identification for anyone seeking a change of sex on their driver’s license or state personal ID card. US passports were specifically excluded.
The plaintiffs pointed out the difficulties this policy imposes. Some states refuse to issue replacement birth certificates for transgender individuals and that could preclude a trans resident of Michigan from obtaining a state ID, which is needed to vote. Other states — including Michigan itself — will only issue new birth certificates with proof of gender reassignment surgery.
The US State Department, however, does not have a sex-reassignment surgery requirement for getting an appropriate passport, a policy that has also been adopted by many states, including, now, New York.
In their affidavits opposing the state’s motion to dismiss their case, the plaintiffs recount a wide range of circumstances in which they have encountered demeaning or antagonistic responses when complying with requests to show ID, including when voting or attempting to cash a check. Every such occasion is an “outing” with respect to information they prefer to keep confidential, and they cite the incidence of violence against transgender people as a looming threat when their status is involuntarily revealed in this way.
Judge Edmunds rejected the state’s argument that plaintiffs had not presented a constitutional claim. She found numerous precedents, including decisions from the Sixth Circuit that are controlling in federal cases in Michigan, recognizing privacy interests in medical information and sexually-related information. She also relied on a 1999 decision by the New York-based Second Circuit Court of Appeals in a case involving a transgender prison inmate, where the court recognized that the “hostility and intolerance” against transgender people bolstered its conclusion that “the Constitution does indeed protect the right to maintain the confidentiality of one’s transsexualism.”
Using language from an earlier Sixth Circuit case, Edmunds found “no reason to doubt that where disclosure of this highly intimate information may fall into the hands of persons harboring such negative feelings, the Policy creates a very real threat to Plaintiffs’ personal security and bodily integrity.”
The state could only win this case, the judge found, if it could show a compelling interest, and that its policy was “narrowly drawn to further that interest,” which requires that it be the least restrictive way to achieve its goal.
Noting that the state “vaguely identifies two purported interests — albeit not in the context of a fundamental right — in support of the Policy: (1) ‘maintaining accurate state identification documents’ to ‘promote effective law enforcement’ and, (2) ensuring ‘that the information on the license is consistent with other state records describing the individual,” Edmunds found that the challenged policy “bears little, if any, connection to Defendant’s purported interests, and even assuming it did, there is no question that requiring an amended birth certificate to change sex on one’s license is far from the least restrictive means of accomplishing the state’s goal.”
The judge took particular note of the fact the current policy means that many transgender people have a sex listed on their driver’s license that “fails to match their appearance and the sex associated with their names.’ In this way, the Policy undermines Defendant’s interest in accurately identifying Plaintiffs to ‘promote law enforcement.’”
As well, the fact that a transgender person’s driver’s license and passport could well reflect different sex designations, Edmunds wrote, contradicts “the state’s purported interest in ensuring ‘that the information on the license is consistent with other state records describing the individual.’”
Pointing to the plaintiffs’ assertion that at least 25 states allow changes of sex designation on driver licenses without proof of sex reassignment surgery, Edmunds wrote, “The Court seriously doubts that these states have any less interest in ensuring an accurate record-keeping system.”
Edmunds’ refusal to dismiss the case puts the plaintiffs in a strong position to negotiate a change to the policy. If negotiations fail, they can probably count on winning this case through a motion for summary judgment unless the state can come up with something better than its meager arguments to date.
The plaintiffs are Ermani Love, Tina Seitz, Codie Stone, E.B., A.M., and K.S. Their attorneys include Daniel S. Korobkin, Michael J. Steinberg, and Jay Kaplan of the ACLU Foundation of Michigan in Detroit, John A. Knight of the ACLU of Illinois in Chicago, and cooperating attorneys Jacki Lynn Anderson, Michael Frederick Derksen, and Steven R. Gilford of the Proskauer Rose law firm’s Chicago office.