The emergency rule leaves only a narrow way to change sex on documents, which could itself soon be closed.
An emergency rule mandating that all Arkansas driver’s licenses and state ID cards show the bearer’s sex as it’s recorded on a birth certificate went into effect on Thursday after approval by the Arkansas Legislative Council.
Top officials at the Department of Finance and Administration, which issued the rule, say it accounts for a need for the police to know the sex of people they encounter. They invoked public safety as a core rationale for the policy change.
Transgender rights activists and the ACLU of Arkansas, however, are pushing back. They say the policy would likely lead to sex-based discrimination and threatens the safety and wellbeing of trans and gender non-conforming people in the state.
A driver’s license, DFA Secretary Jim Hudson told the Arkansas Legislative Council on Thursday, “is a document that law enforcement relies upon, and if law enforcement cannot have confidence [in] information about the person they’re encountering, I do believe that is a public safety issue.”
“There is potential for confusion under the existing policy that we rescinded.”
State Sen. Clarke Tucker, D-Little Rock, disagreed.
“What you all are telling me is ‘we want law enforcement to have the most accurate information possible when they’re presented with a person,’ and to me, there’s no distinction between gender, height and weight on that, which are obviously also objectively verifiable.”
Height and weight on a state ID are self-reported, the same as gender was under the previous policy.
Hudson and Assistant Commissioner Paul Gehring did not city specific problems with the then-current policy over the 14 years it had been in place, saying that the emergency rule change is proactive.
A ‘dangerous proposition’
Sarah Everett, director of policy at the ACLU of Arkansas, took issue with the idea of requiring IDs to show sex assigned at birth.
“They’re implying a couple of things,” Everett said in a Monday interview. “One is that law enforcement treats people differently based on sex, which is illegal, and that trans people are somehow inherently dangerous.”
U.S. Supreme Court precedent, she said, holds that discrimination based on gender expression is, legally speaking, sex-based discrimination.
“Obviously there’s no basis,” Everett said, for the idea that police must know a person’s sex assigned at birth.
“It’s just it’s kind of a scary and dangerous proposition that trans people should be required to out themselves to law enforcement and anyone else who needs to see their identification,” she said.
“No officer is going to be confused when a woman hands him a driver’s license that says ‘F.’ But he may be confused and may react questionably at best if a woman hands him a driver’s license that says ‘male.’”
‘Going forward’
Since 2010, Arkansas has allowed ID holders to change the gender shown, without any questions asked, and to use the gender-neutral designation “X” in addition to “male” and female.”
Across the nation, 21 other states and the District of Columbia continue to allow state IDs to be marked “M,” “F” or “X.” The practice is also allowed on U.S. passports.
From now on, people in Arkansas with a gender marker of “X” on their passport must choose between male or female on their state ID, Gehring said before the Legislative Council on Thursday.
All current licenses and IDs will remain valid until their printed expiration date regardless of the sex marker shown on them.
In Arkansas, there is no option to designate a newborn as intersex on a birth certificate or to later change one’s sex to anything besides male or female.
Gehring said that the previous policy of “no questions asked” changes to sex markers was based on a departmental memo, which was not codified in state law or agency rules.
The change, he said, seeks to ensure that everything on a state ID is based on existing documentation.
The agency’s primary concern with the rule change was the X designation on a state ID, rather than male or female markers which differ from other documentation. This is because a marker of “X” is not “verifiable,” said Scott Hardin, a representative from the DFA.
But any sex markers that might differ from those on a person’s birth certificate, he said, are inherently unreliable and perhaps even inherently fraudulent.
Hardin said that the agency sees the issue of sex markers on state IDs as a pressing concern but that their emergency rule change was not made in response to existing problems on the ground or calls to action from the public or law enforcement.
The emergency rule, Hardin said, has “a sense of urgency” meant “to ensure nothing does happen going forward… [because] there’s a real possibility that something could happen if we’re not to address this.”
Wide-ranging consequences.
Max Calabotta, the Northwest Arkansas Coordinator at the trans rights advocacy group Intransitive, said that the consequences of a mismatch between a person’s outward appearance and the sex shown on their ID are wide-ranging.
These can include “being misgendered and denied housing, being misgendered and then being mistreated in the hospital when you’re in crisis, being misgendered by a police officer who has a gun and potentially the power to kill you.”
“I have a beard and I have a deep voice,” he said. “You don’t need to know anything else, none of the rest of how my body works.”
The new rule, he said, means that the only option for people to change the gender marker on their ID would likely cost many thousands of dollars in a complex and difficult process.
Under the new rules, Arkansas state IDs can only show male or female and that must match the sex on the holder’s birth certificate. It isn’t impossible for a transitioning person to change the sex on their birth certificate, but the bar to do so is set very high.
It can be changed by court order only after sex reassignment surgery. “Normally an attorney is needed for this type of action,” notes an explanation on the Arkansas Department of Health’s website.
The combination of medical bills and legal fees that are pre-requisites for obtaining a driver’s license with a different name or sex means a heavy burden for a bureaucratic process that’s practically free in other places.
Adding to this, transgender and gender non-conforming people are far more likely than the general population to be living below the poverty line, according to data from the University of California-Los Angeles, putting transition therapy, let alone legal counsel, far out of reach.
By contrast, for Calabotta, who was born in New York State and moved to Arkansas as a young child, there were no such hoops for them to jump through when changing the sex on their birth certificate.
“I just had to fill out a form and send them I didn’t have to provide a bunch of proof.”
Everett said that even this less attainable loophole could itself be in danger of further restrictions or even elimination.
“The only reason we haven’t seen an attack on that yet is because we’re not in a regular legislative session,” she said, noting that there are legislative bills in other states seeking to restrict that process.
Everett said that the ACLU of Arkansas’ policy is not to announce any potential legal action they might take until after filing a complaint, but that they are “looking at our options when it comes to litigation.”
An emergency rule like this only stays in effect for three months. Hardin said the DFA is already in the process of drafting a permanent rule change which will allow for a 30-day public comment period.
