Arkansas sued over new restrictions on driver's license gender markers

Transgender, nonbinary, and intersex Arkansas residents are suing the state over a new policy that makes it nearly impossible to change the gender marker on driver’s licenses and prohibits the nonbinary X marker.

Since at least 2010, the state had let residents self-select the marker on the license, either M, F, or X, according to the American Civil Liberties Union’s Arkansas affiliate, which is representing the plaintiffs. But in March, the Arkansas Department of Finance and Administration put in an emergency rule that requires an amended birth certificate to change the marker and eliminates the X option. It’s extremely difficult to obtain an amended birth certificate, as it requires a court order with proof of gender-affirming surgery, the ACLU notes.

“This emergency rule was implemented without any documented justification or compliance with the procedural requirements of the Arkansas Administrative Procedures Act, which stipulates a 30-day public notice and comment period unless there is an ‘imminent peril to public health, safety, or welfare’ or a need to comply with federal law,” says an ACLU press release.

“There is no ‘imminent peril’ created by recognizing and respecting a person’s affirmed gender identity, yet the DFA’s emergency rule has precipitated a true crisis for affected Arkansans,” ACLU of Arkansas Executive Director Holly Dickson said in the release. “This rule is not safeguarding Arkansans; it's compromising their safety, their mental health, and their ability to participate fully in society.”

“The DFA has failed to demonstrate any urgent threat to public health or safety that justifies this sudden and restrictive change in policy,” added ACLU of Arkansas Legal Director John Williams. “Instead, their actions have created a real and immediate danger to the well-being of our plaintiffs and other transgender, nonbinary, and intersex people, for whom accurate identification is not just a matter of dignity, but of personal security.”

The suit was filed Tuesday in Pulaski County Circuit Court in Arkansas. It seeks to prevent enforcement of the rule and have it declared invalid due to its violation of administrative procedures and lack of any stated emergency.

The plaintiffs represent a variety of identities. Brandyn Gallagher is intersex and nonbinary, with a commercial driver’s license currently using X, but the new rule would force a change to M or F. Gallagher works as a truck driver and is trying to upgrade their license for a job transporting hazardous materials. JaVon Hansen is a transgender man, but his license identifies him as female, and the new rule would prevent him from obtaining a corrected license. Kaden McIntosh is nonbinary but has a license with the F marker and would change it to X if not for the rule. Lydia Nelson is nonbinary and has an expired state ID with X and would be forced to adopt M or F upon renewal. Haley Nicole Prentice is a trans woman, but her license identifies her as male, and the rule prevents her from obtaining one with a female marker.

The requirement to present an amended birth certificate to change the gender marker on a driver’s license is a major barrier, the lawsuit says, given the need for a court order certifying that the person have had gender-affirming surgery. Many trans, nonbinary, and intersex people do not have surgery, “either because it is not medically indicated for them or because they do not have the resources to access such treatment,” the suit notes.

Having a driver’s license with a gender marker that does not match a person’s identity is a cause of stress and can often result in harassment in daily interactions in which they must present an ID, the suit points out.

“The emergency rule disregards the recognized medical consensus on the treatment of gender dysphoria, violates the privacy of individuals, and undermines the safety and well-being of all transgender, nonbinary, and intersex people,” the press release concludes. “By forcing them into a narrow definition of gender, the rule not only causes harm to people but also contradicts the DFA’s long-standing practice of acknowledging the spectrum of gender identities.”

Arkansas Attorney General Tim Griffin told TV station KARK his office is “reviewing the lawsuit, and we look forward to defending the Department of Finance and Administration in court.”

“DFA issues licenses and IDs based on objective information,” Department of Finance and Administration Secretary Jim Hudson told the station. “Our emergency rule was adopted by DFA and the General Assembly to ensure the safety of our citizens and the stakeholders who rely on the licenses and IDs we issue. DFA is implementing this policy in a manner that is respectful to all. We intend to vigorously defend this policy in court.”