According to a brief filed recently by the ACLU Foundation of Alaska, K.L. is a respected airline pilot for a private shipping company. Her United States passport identifies her as female, as does her medical certificate to operate as a pilot, her airman certificate, and her work identification. So does her Alaska driver's license, or at least, did until a few weeks ago, when DMV cancelled her license and said she had to get one indicating she is a male.
K.L. transitioned from male to female last year, and changed all her identification documents at that time, including her drivers license, to reflect a new name and sex marker. But the she received a notice in the mail, saying that her drivers license was cancelled pursuant to an internal DMV policy, SOP D-24. Under this policy, the DMV permits a change to an individual's sex marker only if there is submitted proof of sex reassignment surgery.
The policy states: "For change of sex, other than a DMV error, a medical certification is required. The medical certification must specify that the sex change is surgically complete and must be signed by the performing surgeon."
Of course, there are many types of sex reassignment surgery, and "complete" is a relative term.
The ACLU's brief notes, however, that the Alaksa DMV apparently more narrowly interprets the policy to require "genital surgery," rather than another form of transition-related surgery, despite the fact that medical standards do not require this for recognition of a change in sex, nor do other agencies, such as the U.S. passport office.
Two Main Arguments: Privacy and Equal Protection
The ACLU makes two main arguments on behalf of K.L.: first, that this requirement violates the right to privacy under the Alaska Constitution, and second, that it violates the right of Equal Protection under the Alaska Constitution. State constitutions often provide more generous protection under such clauses than do the federal Constitution, and the brief makes that argument.
I myself have argued in law review articles that the federal Constitution provides a right to gender autonomy under its right to privacy. In a 2001 law review article, I suggested that there is a fundamental right to "gender autonomy" that protects people with transgender and transsexual identity. I grounded this in what was then called the "right to privacy," an outgrowth of substantive due process.
I wrote a second article in 2009, which reviewed the many court decisions and legal commentators relating privacy and gender autonomy. I discussed how the groundbreaking, but widely misunderstood, 2003 decision in Lawrence v. Texas made it possible to argue successfully that laws and policies, such as DMV restrictions, impacting gender autonomy are not rationally related to state interests. I suggested that it would be better for advocates of trans people in litigation to argue that such regulations do not meet the rational basis test, rather than trying to argue that such rights are fundamental, a more difficult argument that may be harder for judges to accept.
The Privacy Argument
There are two strands of the right to privacy argument: the right to make important personal choices, and the right to keep sensitive information private.
The ACLU's brief in this case first argues that the right of gender autonomy is a fundamental right, using the bolster of the Alaska Constitution, which the Alaska courts have recognized provides more privacy rights than the federal government. Unlike the federal Constitution, which has been interpreted to implicitly provide a right to privacy, Alaska's constitution explicitly states that it recognizes a right to privacy: "The right of the people to privacy is recognized and shall not be infringed." Thus, while in other states, or in federal lawsuits, it may be harder to get judges to accept that gender autonomy is a "fundamental right," hopefully it will be easier to do so in Alaska. Once gender autonomy is recognized as "fundamental," it then becomes much easier to find a violation.
As the ACLU notes, "[w]hen the state encroaches on fundamental liberty and privacy rights, it must demonstrate a 'compelling state interest' and the 'absence of a less restrictive means to advance that interest.'" In other words, if gender autonomy is recognized as a "fundamental right," then the state has to show that its has very, very strong interests in having a surgical requirement, and that there is no easier way to fulfill those interests.
The brief notes that the Alaska courts have ruled that the right of privacy protects "fundamental rights of personal autonomy,' including a person's right to control his appearance, [and] a patient's privacy interest in protecting sensitive personal information from public disclosure . . . ." The fundamental privacy right also includes the "right to make decisions about medical treatments for oneself . . . ."
The brief cites a series of Alaska Supreme Court cases involving the right to choose one's hair style at a public school, which the court upheld, an unmarried woman who sued for death benefits after the work-related death of her male partner, which the court denied, though it recognized a fundamental right to have an unmarried relationship, a case involving a doctor running for school board who successfully argued that the state election law's requirement that he submit the names of patients from whom he received any income, and a case wherein parents successfully argued that requiring their children to receive skin tests for tuberculousis in order to attend school violated their right to privacy.
Similar to these cases, the ACLU argues that the DMV's action infringes on K.L.'s fundamental right to possess and control her person. "The court has stated on numerous occasions that ?few things [are] more personal than one's body. K.L's decision to express herself in conformity with her gender identity is a direct exercise of her right to control her person." Thus, it argues, the right to change one's sex marker on a drivers license is fundamental.
This is a difficult argument, partly because the boundaries of when someone gets to change their sex marker on a drivers license is so undefined. Is it anyone's fundamental right? If not, where is the line? Clearly, in this case, K.L. has taken many substantive steps to assert her gender identity as a woman, and I, of course, think the court should allow her to change her license. How many steps need to be taken? Do we need a medical professional to weigh in, as the requirement has been in New York? Unanswered questions.
The Second Privacy Argument: Forced Disclosure
The ACLU makes a second argument, that a driver's license that does not match a person's expressed gender identity forces disclosure of a sensitive medical condition. This outing could lead to discrimination, harassment, or assault. The DMV's refusal to allow K.L. to have a female sex designation, and the resulting involuntary disclosure of sensitive personal information, is a violation of K.L.'s fundamental liberty and privacy rights. That's a good argument, one that I've made in previous law review articles. There are some good U.S. Supreme Court cases on the issue of forcing disclosure of private information of a sensitive nature, although they are not cited here, presumably because the ACLU is trying to establish rights beyond federal law. There is a federal decision from New York that found that a guard violated the privacy rights of an inmate in a prison by telling others that she was an HIV positive transsexual. The court found that she was subjected to danger as a result. The ruling is a good one for the point that disclosure of sensitive private information about being trans can be a violation of the constitutional right to privacy, but the facts are quite different. Prison isn't a drivers license.
The ACLU also argues other cases, including a medical marijuana case involving disclosure of a list of medical marijuana patients, another case involving disclosure of people on a contractor's employment list for a controversial project, and the case, noted above, of the doctor running for school board who would have had to disclose his patient's names. Clearly, the government requiring a person to out themselves as trans every time they show their drivers license is a problem of constitutional dimensions.
Lastly, the brief argues that a requirement of sex reassignment surgery in order for an individual to amend the sex designation on his or her driver's license infringes on the fundamental right to medical decision making. "The decision whether to undergo sex reassignment surgery as a medical treatment to alleviate gender dysphoria should only be influenced by the opinion of a medical doctor. There is no legally adequate justification for the state to burden this very serious and personal medical decision by coercing transgender persons to undergo medical treatment they may not want or need." The brief also notes that many people cannot access genital surgery for medical or financial reasons. It also specifically discusses the difference between male-to-female genital surgery and female-to-male genital surgery. It makes the excellent point that requiring this surgery, in order to induce the state to take the "T" tattooed on your forehead every time a drivers license is needed, is a violation of the right to privacy in sensitive private information.
The brief shreds supposed state interests in denying a license to K.L. It notes that drivers licenses become less accurate, rather than more, when licenses cannot accurately reflect one's gender identity. It also puts to rest the idea that these restrictions are needed to avoid fraud. "The prevention of fraud and falsification of identity documents is addressed through criminal statutes, not SOP D-24. It is absurd to imagine that the mere change in one's sex designation could effectively perpetuate a fraudulent identity."
The Equal Protection Argument, And Some Questions
The ACLU also argues that the equal protection clause of the Alaska Constitution gives equal rights and opportunities under the law, and that the regulation violates this.
"Although the DMV may assert legitimate interests, there is not a substantial relationship between SOP D-24's differential treatment of transgender persons seeking to change the sex on their license and other persons who seek to change one of the other descriptive traits on their license such as weight, height, hair color, and eye color and those interests..." It also argues that DMV's policy of refusing to change the gender on a license only upon proof of surgery, violates equal protection because it precludes transgender people from obtaining an accurate driver's license while non-transgender persons are not faced with these burdens. Additionally, a new license applicant may acquire a license that identifies his sex according to gender identity, absent proof of surgery, by simply identifying his or her sex on the driver's license application and presenting an amended or recently acquired United States passport under the federal government's revised policy, per State Department regulations. But a current license holder, like K.L., is precluded from this right.
The last point makes a lot of sense. The first two I wonder about. An essential point of equal protection jurisprudence is that one must show that one is "similarly situated" to other people who are treated differently. I'm not sure that it is clear to say, on the one hand, that trans people have different gender identity and medical requirements thus entitling them to a right of privacy, but that they are similarly situated to non-trans people for purposes of declaring their gender.
Overall the brief is very well done. As noted above, I'm not sure I agree with the decision to go solely on a "fundamental rights" basis. An additional argument could easily have been made that, even if the regulation is judged on the lowest standard, the regulation bears no reasonable basis to any legitimate state interest. I would have also made the Alaska state Constitution argument in addition to a federal constitutional argument. I certainly would have mentioned Lawrence v. Texas. And what's with not mentioning my law review article? (Just kidding on that one, they cited a lot of good ones. Though it would have been good to cite Harper Jean Tobin's Harvard LGBTQ Policy Journal article, Fair and Accurate Identification for Transgender People.) But it's easy to be a Monday-morning quarterback. Overall, the argument is well written, clear and precise. I look forward to reading the government's brief and reporting back.