Alabama law requiring proof of ‘sex reassignment’ surgery before ID change is unconstitutional: judge

gender, trans
Unsplash/Tim Mossholder

A federal judge has ruled that an Alabama law requiring residents to provide proof of "gender reassignment" surgery before they can change the sex listed on their driver's license is unconstitutional. 

Judge Myron Thompson, who was appointed to the bench by former President Jimmy Carter, ruled that Alabama's Policy Order 63 violates the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.

In his opinion, issued Friday, Thompson sympathized with the plaintiffs, trans-identified women who filed a lawsuit against Policy Order 63, arguing that the measure is a violation of the 14th Amendment's Equal Protection Clause as well as "their fundamental right to privacy, their liberty interest in refusing unwanted medical treatment, and their First Amendment right to be free of compelled speech."

Policy Order 63 requires those seeking to change the sex listed on their driver's license (a sex marker different from the one listed on their birth certificate) to first provide proof of the gender reassignment surgery in the form of a letter from the surgeon who performed the procedures.

The trans-identified women were represented by the ACLU in their legal proceedings while the Alabama law was defended by Hal Taylor, the secretary of the Alabama Law Enforcement Agency. The ALEA is in charge of administering driver's licenses in the state.

"The injuries caused by Policy Order 63 are severe," Thompson wrote. "For individuals born in Alabama or previously licensed here whose gender identity differs from the sex they were assigned at birth, the policy requires surgery, which results in permanent infertility in 'almost all cases,' to be able to obtain a license with a sex designation that matches their gender."

"The alternative to surgery is to bear a driver license with a sex designation that does not match the plaintiffs' identity or appearance," he continued. "For these plaintiffs, being reminded that they were once identified as a different sex is so painful that they redacted their prior names from exhibits they filed with the court." 

Addressing the legal implications of the case, Thompson maintained that "sex-based classifications imposed by a State are subject to an intermediate form of heightened scrutiny under the Equal Protection Clause of the Fourteenth Amendment."

While the 14th Amendment was created in the years following the Civil War to provide equal protection under the law for African Americans, the judiciary has interpreted the amendment to contain rights to privacy and same-sex marriage. 

Thompson also cited concerns that "carrying licenses with sex designations that do not match plaintiffs' physical appearance exposes them to a serious risk of violence," before rejecting the state's argument that Policy Order 63 "serves the State's interests in providing an accurate description of the bearer of an Alabama driver's license."

State officials further contended that the law was created to mirror "the statutory process for amending a birth certificate" because "we wanted to be consistent in how we operate as a state."

In addition, the judge took issue with the state's failure to specifically define what constitutes "sexual reassignment surgery," noting the lack of specific, uniform standards on the matter.

According to Thompson, "Whether defendants will approve a change of sex designation appears to turn on the particular phrasing of the doctor's letter provided, or even an ALEA staff member's impressionistic sense of the letter's sufficiency."

"The State has not risen to meet the obligation that the Equal Protection Clause imposes," he concluded. "Alabama therefore may no longer make people's genitalia determine the contents of their driver's license. Policy Order 63 is unconstitutional."

Gabriel Arkles, senior counsel for the ACLU's Transgender Legal Defense and Education Fund, said in a statement that he was "thrilled" by the ruling. 

"I'm thrilled the court found that Alabama's surgery requirement was unconstitutional, and I hope other states that still have similar rules will change them without being taken to court," he said. "Trans people are the experts on our own genders, and we have the right to equal access to identification we can safely use."

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