Both the lawsuit and legislation seek to update gender markers on state identification.
Imagine having to share the deepest of personal information about yourself — information that could subject you to discrimination, violence or worse — every time you wanted to cash a check. Imagine being challenged every time you pull out your state-issued identification because you look like a woman but your driver’s license says you’re a man. Imagine fearing being turned away from a voting booth because the gender marker on your ID isn’t in line with what poll workers think you should look like.
That’s the reality faced every single day by transgender Michiganders. And that’s why two separate initiatives were launched to make sure they have ID that reflects who they actually are.
The first is a lawsuit filed by the American Civil Liberties Union and ACLU of Michigan against the Michigan Secretary of State challenging a department policy that makes it impossible for many transgender individuals to correct the gender on their driver’s licenses and other forms of identification.
The second is legislation introduced by State Representative Brian Banks to simplify the process of changing the gender marker on a driver’s license or state-issued ID card.
The ACLU lawsuit, filed in federal court in Detroit on behalf of six plaintiffs, seeks a court order declaring Michigan’s policy unconstitutional, and that the policy represents a refusal by the state to recognize and respect gender identity.
Under current policy, which Secretary of State Ruth Johnson implemented in 2011, the state refuses to change the gender on a driver’s license or state ID unless the person produces an amended birth certificate showing the correct gender. But getting that amended birth certificate can be difficult — if not impossible. For people who were born in Michigan, the only way to receive an amended birth certificate is to undergo sex reassignment surgery. That’s not something every transgender person can, or even wants, to do, says Jay Kaplan, staff attorney for the ACLU of Michigan LGBT Project.
Only about 25 to 30 percent of transgender people undergo surgery. Some choose not to — it’s not the determining factor of what their gender is. Others would like to, but don’t have insurance or can’t afford it. The current policy of the Michigan Secretary of State reflects a lack of understanding of what it means to be transgender by focusing on genitalia. It’s not always about surgery.
In fact, Kaplan adds, the legal brief doesn’t even mention whether any of the six plaintiffs have had surgery, because “it’s irrelevant to what it means to be transgender.”
Other states require a court order before changing the gender on a birth certificate. And three states, including Ohio, where two of the plaintiffs were born, don’t allow gender changes on birth certificates under any circumstances. Because of that, people born in those states could never get a Michigan driver’s license or ID card with their correct gender marker.
Amy Hunter, a transgender woman and advocate, understands that people who aren’t transgender might not fully appreciate the difficult position the Michigan Secretary of State is putting transgender people in with this policy.
I get that most people will never question their gender identity. As a trans woman, I grew up always knowing that what was expected of me was wrong for me. The day I knew that I needed to transition was the first peace of mind I ever felt. We get to define our gender identity. We get to say who we are. Whether we’ve chosen to live authentically in public or not is our choice. Some people may feel it’s not worth literally risking their life to live authentically. But whatever our choice, it needs to be respected.
Tina Seitz, a trans woman and a named plaintiff, says the reason she joined the lawsuit is that the government shouldn’t get to decide if she’s a boy or a girl — especially against all the recommended guidance by the medical community, which does not consider surgery a requirement for gender identity. But she’s not just doing it for her own sake.
The big reason for me getting involved is the way it affects the trans community in general. There are so many people who can’t even get gainful employment because their ID doesn’t match who they are. Any time someone gets a job, they have to show identification that says who they are. If you have somebody whose driver’s license says ‘George’ and it’s not George who is in the room, that person is not getting an offer — especially when most states don’t have protections for LGBT persons on the job.
Michigan is currently one of those states, so many transgender people may choose not to reveal their authentic selves for fear of getting fired or not getting hired. Others have a very legitimate fear of harassment, violence and even death, which is sadly all too common among transgender people, especially transgender women of color.
According to the Human Rights Campaign, at least 13 transgender women were murdered in 2014, and it looks like the numbers may be higher this year. It’s no wonder that three of the six plaintiffs in the ACLU lawsuit chose to be anonymous.
Seitz, who also works as an advocate for the transgender community, has seen — and experienced — fear and discrimination first-hand.
I know of people who have been beaten because of who they are. That wouldn’t be an issue if their driver’s license had the right gender. Once, when I was cashing a check, the person cashing it looked at my license and said, ‘No, this isn’t you.’ The fact that I had to argue about this is something I don’t think any person would even want to deal with.
Seitz once had an ID with the correct gender, before the current policy was in place. But after her license was briefly suspended, her reissued license identifies her gender as male, which creates conflict.
I feel it every time I have to produce my license. It sets me up where I could be in a position for ridicule, discrimination or violence. There’s nothing to be gained by policing this.
According to Kaplan, it’s far easier to change the gender on a passport, Social Security card, veteran’s ID and other federal documents. All someone needs to update federal ID is a letter from a physician stating that he or she is transitioning based on contemporary medical standards, which doesn’t have to include surgery or even hormones, or is being treated for gender dysphoria, which means the person’s physical attributes don’t match their gender identity.
Michigan is one of only 20 states that doesn’t use this same criteria, which can leave transgender people with conflicting identification: federal ID that says they’re one gender and state ID that says they’re another.
It’s just one more way Michigan is woefully behind the times, Hunter says.
There’s national, almost unanimous consensus across the states about why these sort of administrative requirements are just not necessary. In fact, they’re harmful. And it’s another block on Michigan’s ability to sell itself as a welcoming, competitive state. Even within Michigan, the communities with non-discrimination ordinances for the entire LGBT community are able to attract and keep businesses that will grow. Michigan is, in so many ways, behind the times and it’s inexcusable given the national climate around LGBT protections.
Representative Banks is one of many Democratic legislators who agrees, which is why he introduced the gender ID legislation (HB 4698 and HB 4699). In a release, he explained that an ID that doesn’t reflect someone’s appearance and identity doesn’t serve the state’s interest. State-issued ID is intended to provide verification that a person is who they say they are. A policy requiring the inclusion of false, misleading or outdated information undermines the validity of all state identification documents.
Rep. Banks’ package of bills would allow state-issued ID to be changed with other documents in addition to a birth certificate with the correct gender, including a U.S. passport or court order with the correct gender, or a signed letter from a healthcare provider like those accepted for federal identification.
“Michigan citizens need a photo ID in order to fully participate in society and conduct everyday business such as opening a bank or credit union account, getting on a plane or a train, or applying for a job,” Banks says. “It’s critical that a person’s photo ID match their gender presentation.”
Ultimately, the transgender community just wants to be treated equally — something that’s very hard for a transgender person to do in Michigan, Kaplan says.
We have no civil rights protections for gender identity. Most places in Michigan, discrimination is still legal. We have a Medicaid policy that specifically excludes transgender care, and most private health insurance has exclusions and won’t cover gender confirmation surgery or even hormone therapy. Our state hate crimes law doesn’t consider crimes against trans people a hate crime.
Seitz points out that many people believe that transgender people are trying to hide or trick people — but that’s not the case here. “I’m one of the most open people there is about being trans,” she says. “But it’s up to me to disclose that when it’s the right time.”
Ultimately, Hunter adds, it comes down to simply wanting to be treated with respect.
This is a serious block to establishing our true identities, and Michigan’s birth certificate statute is behind the times, too. This is another part of legitimatizing trans identities.
Trans people want to participate and be productive and enrich our communities. Every citizen has the right to live fully within our society. That’s just common decency.
You can read more about the lawsuit and the plaintiffs at the ACLU of Michigan website.
[Image credits: Tina Seitz photo courtesy of the ACLU of Michigan; passport photo by torreyhardee via Flickr.]