In Love v Johnson, six transgender people have sued the Secretary of State in federal court, claiming that a state policy makes it “impossible or unduly burdensome” to change the gender designation on their driver’s licenses. The plaintiffs claim the policy violates their rights to free speech, privacy, interstate travel, and equal protection.
To change the gender designation on a driver’s license in Michigan, you must present an amended birth certificate to the Secretary of State. To amend a Michigan birth certificate, you must undergo sex-reassignment surgery. Not all transgender individuals can afford, or wish to undergo, sex-reassignment surgery.
Because these plaintiffs are prevented from changing their driver’s licenses to match their gender identity, they are forced to be “outed” against their wishes to complete strangers and are exposed to increased risk of discrimination and an increased risk of violence.
Michigan’s policy is somewhere in the middle of the policies in the rest of the country. In at least 25 states and D.C., you don’t have to undergo surgery to change the gender on your state ID. In some states, including Ohio and Idaho, there is no method by which you can amend a birth certificate’s gender designation. Check out this handy tool to determine what the laws are in all 50 states. The U.S. State Department requires only a doctor’s certificate that the transgender individual has had appropriate clinical (not surgical) treatment for gender transition to have a new passport issued.
In Love, the court recently denied Johnson’s motion to dismiss, concluding that the plaintiffs’ allegations that the state’s policy requiring plaintiffs to disclose their transgender status directly implicates their fundamental right to privacy under the Fourteenth Amendment. The court considered the Secretary of State’s two interests 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. The court found that the policy bears little if any connection to the state’s interests and that, even if it did, requiring an amended birth certificate to change the gender designation on one’s driver’s license is not the least restrictive means of accomplishing the state’s goals. The court noted that, under the policy, the information listed on the driver’s license does not match the appearance and gender associated with the individual’s name and so undermines the state’s interest in accurately identifying plaintiffs to promote law enforcement.
It will be interesting to see how the case resolves and whether it results in a policy change.