ASKED & ANSWERED: ACLU attorney discusses gender identification issues


By Steve Thorpe
Legal News

Federal Judge Nancy Edmunds heard lawyers from the ACLU and the ACLU of Michigan argue on Nov. 4 against a state policy set in 2011 by Secretary of State Ruth Johnson that prevents many transgender men and women from altering the gender on their driver’s licenses and other forms of identification.

The ACLU filed the lawsuit in May of this year on behalf of six Michigan residents.

Jay Kaplan has been the staff attorney for the ACLU of Michigan’s LGBT Project since its founding in 2001.

He has worked on cases including challenging undercover sting operations targeting gay men, fighting Michigan’s constitutional amendment prohibiting same-sex couples from marrying, defending the validity of second parent adoptions granted in Michigan, and recently advocating for a transgender high school student to be able to run for prom court.

Kaplan spoke recently with Steve Thorpe of the Legal News.

Thorpe: What happened on Nov. 4 and what might happen next?

Kaplan: This was a hearing on the Secretary of State’s motion to dismiss our case. They were alleging that we had failed to present a cognizable legal claim for relief. 

We alleged in our complaint that the Secretary of State’s policy regarding gender changes on driver’s licenses and state IDs is unconstitutional based on several grounds — privacy, equal protection, and free speech, among others. Judge Edmunds chose to focus on the privacy issue at the hearing. 

On Nov. 16, 2015, Judge Edmunds issued her decision denying the Secretary of State’s motion to dismiss our case, finding that we have raised a cognizable privacy claim.

The judge made it clear that when transgender people are unable to obtain accurate Michigan identity documents, due to the Secretary’s policy, they are forced to share highly intimate and personal medical information that can lead to discrimination, harassment, violence and even death.

Thorpe: Give us a capsule view of the national picture on this issue.

Kaplan: Michigan’s policy regarding gender changes on licenses and IDs — requiring persons to have a gender change on their birth certificate — is an outlier compared to what other states and the federal government have been doing (Michigan’s law for changing the gender on a birth certificate requires that a person provide proof that they have undergone gender confirmation/sexual reassignment surgery).

Most states do not have a surgery requirement for changing the gender on a driver’s license or state ID, and the same applies with the federal government for changing the gender on a passport, social security and veteran’s records.

Thorpe: What are the possible “real world” consequences of an individual having ID that causes confusion about their gender?

Kaplan: If my ID is not congruent with my gender identity and gender appearance, I am being “outed” as transgender every time I have to show my ID — to buy a drink, cash a check, use a credit card. I’m being forced to disclose highly personal and in some cases medical information to perfect strangers every time I engage in these everyday transactions.

A survey of transgender discrimination, “Injustice At Every Turn,” was put together by the National Center for Transgender Equality and the National Gay and Lesbian Task Force. Forty percent of those survey participants reported being harassed when they presented ID that did not reflect their gender identity and appearance, 3 percent reported that they were attacked and assaulted, and 15 percent reported being asked to leave.

Thorpe: Judge Edmunds was tough on the assistant attorney general representing the state. Was that a surprise?

Kaplan: She made it clear that she had read all the pleadings, which included definitional terms regarding being transgender, as well as medical standards for treatment.

The assistant attorney general, during his argument, seemed to imply that being transgender was nothing more than waking up one morning and deciding that you are going to be a different gender.

The judge was having none of that and stated on the record that she understood the incredible struggle that a transgender person goes through before being able to live in accordance with his or her gender identity.

That was very gratifying — particularly gratifying to members of the transgender community who attended the hearing in support of our case.

Thorpe: Your team argued that the state’s rules are an equal protection violation and a violation of free speech rights. Explain.

Kaplan: If you have incorrect information on your license regarding your eye color or height, you can contact the Secretary of State’s office and get that corrected rather easily. Only transgender people in Michigan are subjected to this onerous and inconsistent policy of trying to obtain the correct gender on their license or state ID.

Only transgender people who were born in Michigan have to undergo a medical procedure that could be physically harmful to them (and which they may not even want) in order to obtain accurate Michigan identity documents. We believe this violates their equal protection rights. 

The Secretary of State has singled out transgender people for unequal treatment.

Forcing people to carry ID documents that convey inaccurate information about their gender and their gender identity, forces transgender people to have to communicate information that they don’t agree with to others, in violation of their First Amendment rights.

Thorpe: You’ve asked for citizens to tell Secretary of State Ruth Johnson their views on the topic. Tell us about that.

Kaplan: It’s important that people understand that the Secretary of State’s policy is an internal one.

In other words, no laws dictate that the Secretary has this policy.  When she took office in 2011, her office came up with this policy.

She has both the authority and ability to change this policy to make it fair and reasonable for transgender people to obtain accurate identity documents. With a stroke of the pen she could do this (she doesn’t need the governor or the legislature’s approval). Michigan’s policy pretty much stands alone in terms of what other states and the federal government are doing.

As a public servant, elected by the voters of Michigan, the Secretary needs to hear from constituents that this policy is both unfair, unworkable, and clearly is reflective
of a lack of understanding of what it means to be transgender. And it needs to be changed.

We encourage members of the transgender community and allies of the community to contact the Secretary to share their stories and their concerns.