BY AJ TRAGER
DETROIT– Lawyers from the ACLU and the ACLU of Michigan argued Nov. 4 before Federal Judge Nancy Edmunds against a state policy set in 2011 by Secretary of State Ruth Johnson that prevents many transgender men and women from correcting the gender on their driver’s licenses and other forms of identification.
Edmunds appeared to be extremely sympathetic to the ACLU argument, recognizing that the gender identity and the legal gender marker of trans men and women should be consistent and that Michigan is the only state in the union to have such strict regulations on amending birth certificates.
Arguing for the six plaintiffs were the Director of the LGBT and AIDS Project of the ACLU of Illinois, John Knight, and Deputy Legal Director of the ACLU of Michigan, Dan Korobkin. Arguing on behalf of the state was Assistant Attorney General for the state of Michigan, Erik Grill.
The ACLU filed the lawsuit in May of this year on behalf of six Michigan residents. Current Michigan law states than an individual must have their birth certificate amended to reflect their gender in order for documents such as a driver’s license to be changed as well.
While some states have laws that allow for individuals to amend their birth certificates with a court order, Michigan refuses to change the gender marker on a birth certificate until the individual has undergone sexual reassignment surgery and can provide a letter of completion signed by a medial physician.
The state was the first to address the court. Directly following Grill’s opening arguments, which included the state’s statute on requiring which information is on the driver’s license and a description about the proposed change adding “subjective information to the license,” Judge Edmunds responded sternly.
“You need to address substantive due process,” she said to Grill and explained that focusing on the interest of the state is “not the least bit helpful to talk about.”
The state brought up two cases: one referencing the outing of a rape victim and the second about individual privacy interest threats of bodily harm that centered on a generalized or perceived threat of harm. The state tied in the cases to argue that when discussing the inconsistency of gender expression and a gender marker on a license, it is in fact “third parties (that do the most harm) and how they interpret that status.”
According to a study produced by the National Center for Transgender Equality and the National Gay and Lesbian Task force titled “Injustice at Every Turn: A Report of the National Transgender Discrimination Survey,” 40 percent of those who presented ID that didn’t match their gender identity or gender expression reported being harassed; 15 percent report being asked to leave an establishment with 3 percent reporting being assaulted or attacked.
The state then asked the court “at what point do we consider a sex change” and reflected on the spectrum that is gender expression and at what point Michigan residents are constitutionally entitled to a change in their gender marker based on what treatments they have undergone, if they have had gender confirmation surgery, for example, or if they are on day one of hormones.
In that same study conducted by the NCTE and the NGLTF, only 33 percent of trans men and women report having undergone gender confirmation surgery. While 59 percent of respondents reported updating the gender marker on their driver’s license or state ID, 41 percent live without an ID that matches their gender identity.
This presents some serious problems, as the ACLU of Michigan discussed in their arguments in court. By changing the legal gender marker, Knight argued, trans men and women would be granted consistency, which is currently being denied to them. Current Michigan policy also forces residents to out their status whenever they show their license which is a clear violation that puts people at risk, Knight argued.
“We had to show our IDs to get into this building, for example,” Knight pointed out.
Edmunds found this particular argument compelling in that it violates people’s constitutional right to privacy and does so by revealing sensitive information that could put them at serious risk.
Along with arguing that the reveal of personal information is a violation of constitutional rights, the ACLU also argued that being forced to disclose such personal information compels people to speak or communicate something that is private and thus is an equal protection violation and a violation of free speech rights.
Knight argued that the policy has an additional constitutional violation: since Michigan residents are forced to have a particular operation done that they may or may not want in order to get an accurate license, it violates their due process, as well. And finally, Knight argued that in respect to individuals who moved to Michigan from states that do not allow for amendments to birth certificates such as Ohio, it makes it impossible for these individuals to achieve consistency on their documents.
“This is a claim of a different dimension,” Edmunds said to Grill during the state’s follow up testimony discussing how and when a resident files a medical records affidavit. “This is more than male or female, this is about how they live their lives.”
Grill quickly fell under the court’s critical eye again when he theorized that a trans man or woman could get an affidavit on the day they question their gender identity.
“You want to trivialize it by saying they could get an affidavit on day one,” Edmunds said to Grill.
Edmunds is currently deciding if she will honor the state’s request to dismiss the case. Her response is expected the second week of November.
“She seemed most sympathetic to the privacy argument,” Knight told BTL after the hearing. “I think the case went well in the sense that the judge certainly was sympathetic to the issues. She knew the arguments and she understands how important it is. So there isn’t much more we can hope for aside from that. I am very pleased.”
The plaintiffs are represented by Jay Kaplan, LGBT special projects attorney for the ACLU of Michigan; Knight; Korobkin; Michael J. Steinberg, legal director of the ACLU of Michigan; and Steven Gilford, Michael Derksen and Jacki Anderson from the Chicago office of Proskauer Rose LLP.
Call To Action
The ACLU of Michigan has provided a letter template for any Michigan resident who wants to be actively involved in this matter. Visit http://gaybe.am/idp for more information and to send a letter to Secretary of State Ruth Johnson.