Nearly a dozen Arkansans, many of whom are transgender or nonbinary, asked the state Department of Finance and Administration not to reverse the state’s gender-neutral driver’s license policy at a public hearing Friday.
The department in March rescinded a policy that had been in place since 2010 allowing driver’s license holders to change their gender marker with no questions asked or to use an “X” in place of “male” or “female.”
The Arkansas Legislative Council’s executive subcommittee later approved DFA’s emergency rule that required driver’s licenses and state-issued IDs to reflect the gender listed on a person’s birth certificate.
Paul Gehring, the finance department’s assistant commissioner of revenue policy and legal, conducted Friday’s hearing. No elected officials or cabinet members were present.
Eleven people spoke against the rule while no one spoke for it.
Several speakers said the existing gender marker policy that has been in place since 2010 has never caused anyone any harm. DFA Secretary Jim Hudson told lawmakers in March that the new rule is meant to prevent threats to law enforcement officers’ safety, though he also said he was not aware of any threats that had occurred over 14 years.
“The real emergency that exists [is] when trans people are forced to falsely represent ourselves on driver’s licenses and state IDs,” said Tien Estell, Intransitive Arkansas’ policy coordinator.
The new rule has already caused problems for the transgender community, said Estell and several others, including Hazel Pleskac, who said her legal name change was finalized the same day the rule was announced.
“All this has done for me so far is create an absolute bureaucratic nightmare,” Pleskac said. “I have dealt with so many issues [such as] having to update documents multiple times because the names mismatched, and now the genders mismatch.”
At the end of the day, really, gender is irrelevant as far as the state or agencies such as law enforcement identifying a person.
– Attorney J.P. Tribell
Hannah Grimmett said updating an expired driver’s license with an X gender marker became a hassle in light of the new rule. The DMV employee “had no idea how to deal with it” and had to fax Grimmett’s birth certificate somewhere in order to change the ID’s gender marker, Grimmett said.
“When I first got my driver’s license, it was as simple as saying, ‘Hello, can you please change this to an X?’” Grimmett said.
Pulaski County Circuit Judge Patricia James blocked the emergency rule Wednesday in response to a lawsuit from the American Civil Liberties Union of Arkansas. The injunction gives Arkansans a short window of time to change the gender marker on their IDs if they so choose before lawmakers vote on the permanent rule discussed Friday, said John Williams, the ACLU of Arkansas’ legal director and the plaintiffs’ attorney in the lawsuit.
The Arkansas Legislative Council and its Administrative Rules Subcommittee must approve the permanent rule in order for it to go into effect. The deadline for public comment on the rule is June 27, and the council and its subcommittees are scheduled to meet in mid-July.
In addition to Washington D.C., Arkansas has been one of 22 states that allows an X designation on a driver’s license in addition to “M” and “F.”
Legal issues
The rule states that the gender information on driver’s licenses and state-issued IDs must denote “‘M’ (male) or ‘F’ (female) consistent with information contained on the person’s birth certificate, passport, or identification document issued by the U.S. Department of Homeland Security.”
The federal government allows X as a gender marker on passports, and birth certificates can be legally amended. The rule allows for amended birth certificates to be used as identifying documents while obtaining or renewing a driver’s license.
J.P. Tribell and Richelle Brittain, both attorneys, said at the hearing that the rule would likely violate the equal protection clause of the Fourteenth Amendment to the U.S. Constitution.
The final section of the proposed rule says the state Office of Driver Services may amend its records of unexpired driver’s licenses with the male or female gender marker instead of X, using other records the office has on file, and notify the license holder accordingly.
This “appears to be an attempt to retroactively strike the X gender marker” from state records, Brittain said, and it “goes against the stated purpose of presenting correct information to law enforcement.”
The rule would create confusion if someone presents as male or female while their ID has the opposite gender marker, said Tribell, whose legal work includes helping LGBTQ+ people change the names and gender markers on legal documents.
“At the end of the day, really, gender is irrelevant as far as the state or agencies such as law enforcement identifying a person,” Tribell said.
Many of Friday’s speakers, including Brittain and Estell, also spoke against the variety of laws introduced in the state Legislature last year that restricted the activities of transgender Arkansans, including the uses of pronouns and bathrooms in public schools and transgender minors’ access to health care.
Braelyn Smith and Maggs Gallup, who also have both testified before the Legislature, said it is important to repeatedly speak up even if they are unlikely to change the minds of decision-makers.
“Speaking on behalf of those who are not able to advocate for themselves [and] having the privilege to be able to do that is a responsibility that we hold,” said Gallup, a nonbinary parent of a gender-nonconforming child.
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