To Change Gender on Alabama License, Surgery is Now Required
A federal appeals court upheld Alabama's surgery requirement for transgender drivers seeking to change the gender on their licenses.
A federal appeals court upheld an Alabama policy requiring transgender individuals to undergo gender confirmation surgery in order to change the gender marker on their driver’s licenses.
In 2018, three transgender residents of Alabama sued to challenge the state’s Policy Order 63, arguing that the surgical requirement violates their constitutional rights by forcing them to undergo a costly, invasive, and — depending on their unique form of gender dysphoria — potentially unnecessary medical procedure just to have their identities recognized as valid by the state. Currently, eight other states have similar requirements in place.
Additionally, state officials only accept some forms of gender confirmation surgery as “proof” that a person has transitioned, meaning that even those who undergo some surgeries can still be denied the right to amend their gender marker.
A federal court sided with the plaintiffs, finding that the policy was a form of sex-based discrimination and infringed upon the transgender residents’ due process and speech rights.
But on September 20, the 11th U.S. Circuit Court of Appeals overturned the lower court’s decision, arguing that the policy does not single out or disadvantage individuals based on sex, but rather applies equally to all people seeking to change the gender marker on their state-issued documents.
“Policy Order 63 imposes the same objective conditions on everyone,” Circuit Judge Elizabeth Branch wrote in her opinion on behalf of the unanimous three-judge panel. “Policy Order 63…rationally advances Alabama’s legitimate interest in providing a consistent set of requirements to amend the sex listed on state documents like driver’s licenses and birth certificates.”
Drawing on a previous 11th Circuit decision upholding Alabama’s ban on gender-affirming care as constitutional and finding that states have a “compelling interest” in prohibiting minors from transitioning, Branch found that Policy Order 63 was neutral in its application and consistent with the state’s desire to maintain the accuracy of vital records.
The court also rejected the transgender residents’ claims that the policy violated their right to privacy and free speech.
“Because Policy Order 63 deals only with when and how the State will revise information on state documents, Policy Order 63 neither violates Plaintiffs’ right to informational privacy, nor infringes their right to refuse medical care like sex-change surgery, under our due process precedents,” Branch wrote.
“For similar reasons, Policy Order 63 does not compel Plaintiffs to speak the government’s message about their sex or gender identity in violation of the First Amendment,” she added. “After all, driver’s licenses are government speech, not private speech.”
The plaintiffs — transgender women Darcy Corbitt and Destiny Clark, and an unnamed third plaintiff — argued that the policy forced them to choose between undergoing invasive surgery or carrying identification that did not reflect their gender identity.
Both Corbitt and Clark had state officials seek out detailed and invasive information about their health and medical histories, even calling their doctors without consent as part of a fact-fishing expedition, only to refuse to update their licenses.
All three claim they’ve been negatively affected by the policy, which makes them a target for anti-trans animus, harassment, and potentially violence once their transgender status is revealed.
Clark avoids lawful activities if they would require her to show identification out of fear of other people’s reactions to her gender identity. Corbitt was misgendered, insulted, and humiliated in front of a room of people by an insensitive government clerk.
Clark called the ruling “devastating” in a statement.
“I will continue to be myself; I know who I am. But having an ID that doesn’t reflect that puts me at risk everywhere I go,” she said. “It is heartbreaking to live in a state that fights in court to deny who I truly am.”
Corbitt noted that she will continue to live according to her gender identity and refuses to live a lie, believing that all transgender people have a right to assert their gender identity despite the ruling.
“The State of Alabama has consistently shown that it is a government that is ready, willing, and able to gleefully disregard the inherent dignity and worth of its most vulnerable citizens and to trample upon their right to self-determination,” she said in a statement. “This should be chilling to any Alabamian who values their freedom to life, liberty, and the pursuit of happiness.”
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