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. The November 16 ruling in Love v. Johnson, 2015 U.S. Dist. LEXIS 154338, 2015 WL 7180471 (E.D. Mich), by Senior U.S. District Judge Nancy G. Edmunds, finds that transgender people have a fundamental right of privacy under the Due Process Clause of the 14th Amendment regarding their gender identity, which right appears to be heavily burdened by the state policy.
In 2011, Michigan Secretary of State Ruth Johnson adopted the following policy: “An applicant may request to change the sex on their driver license or personal ID card. The individual must provide a certified birth certificate showing the sex of the applicant. A birth certificate is the only document accepted as proof to change an individual’s sex. A U.S. passport cannot be accepted as proof of a sex change.”
According to the plaintiffs, this policy makes it very difficult for many transgender people to obtain such a change. For one thing, people born in a state that refuses to issue replacement birth certificates for transgender individuals are stuck; they can never get an appropriate state government ID in Michigan. (Such an ID is required, among other things, for voting.) For another, people born in states that require gender reassignment surgery as a prerequisite may be stuck as well, since such surgery may not be available to them for financial or other reasons. Indeed, that is the case in Michigan, which requires people to undergo sex-reassignment surgery to get a new birth certificate.
By contrast, the State Department does not require sex-reassignment surgery as a prerequisite to get an appropriate passport. The Department will accept a doctor’s letter certifying that the individual “has had appropriate clinical treatment for gender transition,” without any specification of particular treatment. Many other states now have similarly permissive requirements to issue driver licenses or non-driver ID cards.
The consequences of carrying a driver’s license or state ID that does not correctly identify the bearer’s gender are many. Encounters with police officers and security officers are only the most obvious. In their affidavits opposing the state’s dismissal motion, 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 thus revealed involuntarily.
Judge Edmunds rejected the state’s argument that plaintiffs had not presented a claim of constitutional dimensions. She found a wide range of precedents, including decisions from the 6th Circuit that would be controlling in a federal case in Michigan, recognizing privacy interests in medical information and sexually-related information. In addition, she relied on a decision by the 2nd Circuit in a case involving a transgender prison inmate, Powell v. Schriver, where the court recognized in 1999 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.” That court based its ruling on the “bedrock principle” that “there exists in the Constitution a right to privacy protecting the individual interest in avoiding disclosure of personal matters,” and a recognition that a transgender person “potentially exposes herself to discrimination and intolerance” when forced to reveal this information.
Edmunds, appropriating language from the prior 6th Circuit case, 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.”
Since a fundamental right is involved, Edmunds observed that the state could only win this case if it could show a compelling interest, and that the policy was “narrowly drawn to further that interest.,” which requires that it be the least restrictive way to achieve the state’s goal. In this case, she wrote, 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.”
The judge 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. Indeed, as Plaintiffs point out, ‘because of the Policy, the sex listed on their licenses 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.'” She pointed to a 2012 decision by an Alaska trial court criticizing a similar policy adopted in that state, which observed that the policy produces licenses that are inaccurate for identification purposes, causing inconvenience and worse in the everyday lives of transgender people.
As to the rejection of a passport as documentation of gender, Judge Edmunds wrote, “Defendant fails to articulate how this two-tiered system promotes the state’s purported interest in ensuring ‘that the information on the license is consistent with other state records describing the individual.'” Why should a person be required to carry a driver’s license that contradicts her passport as to her gender?
The plaintiffs alleged that at least 25 states allow changes of sex designation on driver licenses without proof of sex reassignment surgery. “The Court seriously doubts that these states have any less interest in ensuring an accurate record-keeping system,” wrote Edmunds. Thus, at this point in the case, the court was unwilling to conclude as a matter of law that the policy “narrowly serves the state’s interest in maintaining ‘accurate’ identification documents or promoting effective law enforcement.”
The plaintiffs had made other constitutional claims, but Judge Edmunds decided that it was unnecessary to rule on them at this point. So long as she had identified one claim on which the plaintiffs were entitled to maintain their legal challenge to the policy, the state’s motion to dismiss should be denied. “Should future developments require the Court to rule on the viability of Plaintiffs’ remaining claims,” she wrote, “Defendant may seek leave to renew her motion at that time.”
Judge 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 pathetic arguments in support of its motion to dismiss.
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 Foundation in Chicago, Illinois, and cooperating attorneys Jacki Lynn Anderson, Michael Frederick Derksen and Steven R. Gilford of the Proskauer Rose law firm’s Chicago office.Tags: 14th Amendment, ACLU Foundation, change of sex, change of sex on driver license, change of sex on ID card, change of sex on passport, constitutional right to privacy, driver license, Due Process, Eastern District of Michigan, Emani Love, gender identity on driver licenses, Love v. Johnson, Michigan Secretary of State Ruth Johnson, sex reassignment surgery, state identification cards, transgender rights, transsexual rights, U.S. District Judge Nancy Edmunds