Arkansas Supreme Court stays ruling preventing X gender markers on driver’s licenses

The Arkansas Supreme Court on Monday stayed a lower court ruling that reinstated the ability of transgender, nonbinary, and intersex individuals to use X as their gender identity marker on state-issued driver’s licenses.

Since at least 2010, the state’s Department of Finance and Administration permitted the X gender identity marker on driver’s licenses, but an emergency rule issued on March 15 prohibited the designation as well as the ability for folks to change the gender identity on their driver’s licenses without an amended birth certificate.

The following month, the Arkansas affiliate of the American Civil Liberties Union sued to stop the rule, and a lower court agreed and blocked the new rule.

Monday’s ruling now means residents can only use the binary M or F rather than a more accurate representation of a driver’s true gender identity as the case is decided.

“We believe that the law supports the circuit court’s order,” John C. Williams, legal director of the ACLU of Arkansas, said in a statement. “To pass an emergency rule, an agency must explain why there is an imminent peril requiring it to act without giving the public notice and an opportunity to comment.”

“The only real emergency here is the one created by the state itself, imposing this rule on transgender, intersex, and nonbinary Arkansans,” Holly Dickson, executive director of the ACLU of Arkansas, said in a statement. “By removing the ‘X’ marker option, the state forces those who do not fit squarely into the gender binary to choose an inaccurate gender marker, resulting in potential confusion, distress, discrimination, physical harm, and a lack of proper identification.”

“I applaud the Arkansas Supreme Court’s decision staying the circuit court’s unlawful order and allowing the Department of Finance and Administration to bring its identification rules into compliance with state law,” Arkansas’s Republican Attorney General Tim Griffin said in a statement yesterday lauding the high court’s ruling.

Several residents sued the state in Gallagher v. Arkansas Department of Finance and Administration, citing multiple reasons in seeking to overturn the ruling, claiming the new rule did not follow appropriate procedures such as allowing 30 days for public notice and comment.

Brandyn Gallagher, an intersex and nonbinary commercial truck driver, is trying to upgrade their license for a job transporting hazardous materials. The new rule now forces him to use an inaccurate representation of his gender identity. JaVon Hansen is a transgender man, but his license identifies him as female. 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 emergency rule is set to expire on July 14, 2024, and the state is working to adopt a permanent rule.

Williams expressed disappointment in the court’s ruling.

“We are deeply disappointed that the Supreme Court decided to restore the emergency rule without explanation,” Williams said. “The plaintiffs and the public are at a loss to know why the Supreme Court permitted the emergency rule to go forward despite the agency’s failure to identify an imminent peril during the procedure for emergency rulemaking.”