Alabama's policy requiring transgender people to have undergone gender-affirming surgery before they can get state IDs that accurately reflect their gender identities is unconstitutional, a federal court ruled this month.
Fewer than 10 states now require proof of surgery to update the gender marker on a driver's license.
The Alabama case began in 2018, when three transgender people — Darcy Corbitt, Destiny Clark and an unnamed third person — sued the state after they were denied driver's licenses that reflected their genders, opposed to their sexes assigned at birth, according to the American Civil Liberties Union.
"The policy for driver's licenses, which is what we challenged with this lawsuit, requires that people either submit an amended birth certificate or submit proof of having had what they call 'complete surgery,'" which Alabama interprets to mean both "genital surgery and top surgery," said the lawyer who litigated the case, Gabriel Arkles, senior counsel at the Transgender Legal Defense and Education Fund. An amended birth certificate also requires proof of surgery, although this case didn't challenge that rule.
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On Jan. 15, the U.S. District Court for Middle Alabama, part of the 11th Circuit, ruled that Policy Order 63, the state's driver's license policy for transgender people, violated the Equal Protection Clause of the 14th Amendment because it discriminates based on sex.
"By making the content of people's driver licenses depend on the nature of their genitalia, the policy classifies by sex; under Equal Protection Clause doctrine, it is subject to an intermediate form of heightened scrutiny," Senior Judge Myron Thompson, who was nominated to the court by President Jimmy Carter, wrote in the opinion.
Arkles said that any time officials make a policy that treats people differently based on sex, "they have to have a very good reason for what they're doing, and here they really did not."
The state argued that the surgery requirement "serves the important government interests in maintaining consistency between the sex designation on an Alabama birth certificate and an Alabama driver's license," according to court documents. In addition, the state said Policy Order 63 provides "information related to physical identification" to law enforcement officers.
But the court ruled that those justifications didn't allow the policy to pass intermediate scrutiny and that the "injuries" it caused were "severe," acknowledging a number of Arkles' arguments. The surgery the policy requires "results in permanent infertility in 'almost all cases,'" the court wrote. Some transgender people might not want or need surgery, and even if they do, it might be inaccessible or unaffordable, as it was for the unnamed plaintiff, the court continued.
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"It's not acceptable for the government to force people to undergo a procedure like that just to get a license that they can use safely and go about their daily life," Arkles said.
Only 25 percent of transgender and gender-nonconforming people reported having undergone some form of transition-related surgery, according to the 2015 U.S. Transgender Survey.
Arkles and his team also argued that Alabama's policy violates the privacy of transgender people and puts them in danger.
"Any time a trans person shows an ID with the wrong gender marker on it, that outs us, which also puts people at real, real risk of experiencing discrimination and violence," he said.
The court ruled on only the first argument, that the policy violates the Equal Protection Clause, but it acknowledged the danger and distress the policy poses to the plaintiffs.
"The alternative to surgery is to bear a driver license with a sex designation that does not match the plaintiffs' identity or appearance," the court wrote. "That too comes with pain and risk. ... For these plaintiffs, being reminded that they were once identified as a different sex is so painful that they redacted their prior names from exhibits they filed with the court."
Mike Lewis, a spokesperson for the state attorney general's office, said the office intends to appeal and has "no further comment."
Arkles said the three plaintiffs have "been through so much" because of the ID policy: Corbitt hasn't had a license or been able to drive for the last several months, Clark "sort of shaped her life around trying to minimize situations where she would have to show ID," and the unnamed client, after she showed her ID to a bank teller, was told that she was going to hell.
Corbitt celebrated that "finally the state of Alabama will be required to respect me and provide an accurate driver's license."
"Since my out-of-state license expired, I have had to rely on friends and family to help me pick up groceries, get to church and get to my job. I missed a family member's funeral because I just had no way to get there," she said. "But the alternative — lying about who I am to get an Alabama license that endangered and humiliated me every time I used it — was not an option. I'm relieved that I will be able to drive again. While much work remains, this decision will make Alabama a safer place for me and other transgender people."
The state plans to comply with a court order to give the plaintiffs IDs that accurately reflect their genders, but because it plans to appeal, Arkles said, "it may be quite some time before we know what the ultimate outcome is and what will be required of trans people in Alabama."
A 'patchwork' of ID laws
Only eight states and two U.S. territories now require proof of surgery to change a driver's license gender marker, according to the Movement Advancement Project, an LGBTQ think tank, and the National Center for Trans Equality.
The remaining states have a variety of policies, according to the Movement Advancement Project, which reports that four states (now including Alabama) have "unclear" policies and that 20 states have "burdensome" policies and/or require medical provider certification of gender transition, which doesn't include surgery.
Arli Christian, a campaign strategist for the ACLU, said 20 states allow people to decide what gender markers are appropriate for them and "what will keep them safe."
"And that is hands down the best policy for ensuring that all people have the most accurate gender marker on their ID," Christian said.
Nineteen states also allow residents to mark M, F or X, a nonbinary gender marker, on their driver's licenses. Christian said the ACLU is pushing for President Joe Biden to create a policy that would allow transgender people to receive federal IDs, such as passports, that accurately reflect their genders without certification from medical providers. It also wants the policy to allow people to choose the gender-neutral X.
"We have a whole patchwork of gender marker change policies across the country," Christian said. "Many of them need to be updated and modernized so that we can make sure that everybody has access to that accurate marker to be able to go through their lives without discrimination and harassment."
Although Arkles is preparing for Alabama's appeal, he said the ruling is a big step forward.
"While we're going to keep fighting and we're going to have to keep fighting this case, it is incredibly, incredibly exciting to have a decision from a judge recognizing that this is unconstitutional and to know that our clients are going to get some relief," he said.
