By ERIC FREEDMAN
Capital News Service
LANSING — Transgendered Michigan residents can pursue a constitutional lawsuit challenging the Secretary of State’s requirements to change the gender on their drivers’ licenses and state ID cards, a federal judge has ruled.
The decision rejects a bid by Secretary of State Ruth Johnson to get the case thrown out without trial but doesn’t determine whether the challengers ultimately will win the case.
At issue is whether Johnson’s office can legally require transgendered residents to undergo sex-reassignment — “gender confirmation” — surgery so they can provide an amended birth certificate to change the listed gender. The agency adopted that policy in 2011.
A lawyer for the challengers, Jay Kaplan of the American Civil Liberties Union of Michigan, said his organization had met several times during almost three years with Johnson’s representatives before filing suit.
“They absolutely refused to consider changing this policy,” Kaplan said.
“This is an internal policy in the Secretary of State’s office,” he said, a [policy that Johnson could change “with a stroke of the pen.”
In court documents, the state argues that the policy is necessary to “maintain accurate state identification documents to promote effective law enforcement” and to ensure that license information is consistent with other state records, the decision said
But the six transgender residents who filed the suit assert that the policy violates a fundamental constitutional right to privacy by disclosing their transgender status to strangers and that it makes them vulnerable to becoming victims of hate crimes.
The plaintiffs “live their lives consistent with their innate understanding of themselves as male or female — their gender identity — rather than the sex they were assigned at birth,” the suit said.
They live in Detroit and in Kalamazoo, Washtenaw and Livingston counties.
Under the policy, transgender people “are forced to carry a driver’s license or state ID card that reflects the incorrect gender, causing them significant psychological and emotional harm and placing them at risk of bodily harm,” the suit contends. “They are forced to carry and show to others a basic identity document that fails to reflect an essential aspect of personhood — their gender.”
The suit also asserts that it’s impossible for some transgender people to qualify even under the agency’s “restrictive” policy.
For example, three of the six were born in states that don’t let people amend the gender on their birth certificates “under any circumstances,” the suit said. Two were born in Michigan but have “no current medical need” for surgery and can’t afford such surgery. The last plaintiff was born in a state that requires a court order to change gender on licenses.
In refusing to dismiss the case, U.S. District Judge Nancy Edmunds of Detroit noted that at least 25 states and Washington, D.C., don’t require transgendered people to undergo surgery to change their gender on state-issued IDs.
“The court seriously doubts that these states have any less interest in ensuring an accurate record-keeping system,” Edmunds said.
The decision also said the U.S. Department of State allows a citizen to change the gender on a passport with only a physician’s certification that the person “has had appropriate clinical treatment for gender transition.”
Edmunds also cited an inconsistency in how the Secretary of State’s office treats transgender people who want to change their license or ID and how the agency treats first-time applicants. First-time applicants can simply present a birth certified or a passport to verify their identity.
In addition, Edmunds pointed to evidence that the policy could “pose a real threat” to transgender individuals, as illustrated by hate crime statistics and by specific incidents that the plaintiffs have experienced.
For example, one plaintiff was “publicly embarrassed when she went to vote and the precinct worker outed her as transgender after looking at her state ID which incorrectly lists her gender as male,” Edmunds said. When another plaintiff showed her driver’s license at a store, “the clerk looked at her license and said ‘that’s not you.’”
Edmunds said the state only “vaguely describes” its rationale for the policy and said the state can implement other, less restrictive measures to ensure accurate records and promote effective law enforcement.
Kaplan said lawyers for both sides will meet in court in December to develop a schedule for future proceedings in the case.
By ERIC FREEDMAN