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Transgender Michiganians sue on driver’s license policy

Jennifer Chambers
The Detroit News

It might be just an M or an F to most people, but for transgender individuals, an incorrect sex identification on a state driver’s license is equivalent to outing themselves every day to perfect strangers.

Whether it’s making a credit card purchase for groceries, entering a federal courthouse or complying with police on a speeding ticket, showing a state driver’s license is a routine experience.

Yet for transgender people, the simple act of showing an ID — one that does not conform with their physical appearance — puts them at risk for harassment, discrimination and violence.

Those are the arguments of six transgender Michigan residents who are suing Michigan Secretary of State Ruth Johnson in federal court in Detroit over the state’s policy on amending gender on a state driver’s license and state IDs.

On Nov. 16, U.S. District Judge Nancy Edmunds denied a motion to dismiss the case, clearing the way for a trial in 2016 if the parties cannot settle.

The American Civil Liberties Union of Michigan is representing the six who allege that a policy change by Johnson in 2011 made it impossible for many transgender people to change their driver’s license or state ID.

The state now requires a birth certificate to change gender on a driver’s license. But obtaining an amended birth certificate for people born in Michigan requires that a person undergo gender confirmation surgery, ACLU attorney Jay Kaplan said.

Several of the plaintiffs said they do not want to have surgery to change their gender or cannot afford it.

State laws vary in terms of whether and how individuals can amend the gender on their birth certificates, Kaplan said. Some states refuse to amend it without a court order; some states, like Michigan, refuse to change the gender on a birth certificate unless an individual has undergone gender confirmation surgery; some states allow the change without requiring either surgery or a court order and some states do not allow the gender on a birth certificate to be corrected under any circumstances.

According to the lawsuit, the federal government does not require surgery to change genders on a U.S. passport or on Social Security records.

The Michigan Attorney General’s Office, which represents Johnson in the case, denies the policy violates due process, First Amendment or privacy rights.

Johnson, who has been ordered to appear in court on Dec. 16, declined comment through her office, as did the Michigan Attorney General’s Office. The state has argued in court that the policy helps promote effective law enforcement and ensures that individuals’ state records are consistent.

It’s not clear why Johnson changed the office’s policy in 2011. Under former Michigan Secretary of State Terri Lynn Land, surgery was still a requirement but a statement by a physician was sufficient. Johnson changed it to birth certificate.

On Nov. 4, Edmunds heard arguments over why the case should be dismissed. Assistant Attorney General Erik Grill said Johnson’s office drew the line at proving gender identity at surgery because a line had to be drawn.

“If surgery is unreasonable, where is the line?” Grill asked the judge. “Is it the first moment they walk into the doctor’s office and say, ‘I think I’m transgender?’ ”

Edmunds responded with a question for Grill.

“Are you really contending that is what happens? ... That this isn’t a serious life-altering decision?” Edmunds said.

“I can’t imagine a decision in one’s life that would be more difficult to come to, more difficult to implement, more difficult to explain to those you love than transitioning from one gender to another.”

Grill said that if the plaintiffs want to argue that sex identification on a driver’s license could cause them harm, that information such as address and a photograph could also be used to cause harm.

The judge disagreed.

“This is a claim of a different dimension. This is a claim affecting personhood in the most fundamental way: gender identity,” Edmunds said during the Nov. 4 hearing.

“I mean, you want to call it nothing more than an M or an F on a driver’s license. It’s obviously more than that. It’s obviously the way a person identifies and lives their life in terms of their gender.”

At one point in the hearing, Grill said he has no idea what it is like to be a transgender person.

Edmunds responded: “That’s apparent.”

John Knight, from the ACLU’s national LGBT project, arguing the case in court for the plaintiffs, told the judge that 3 percent of transgender people face assault or physical injury when showing a license with the wrong gender on it and 40 percent face hostility, including being asked to leave the premises of businesses.

Plaintiff Tina Seitz, who lives in Chesterfield Township, chose to have surgery as part of her transition from a male to female, but said the lawsuit is not about surgery.

Rather, it’s about the repeated experience of showing her Michigan’s driver’s license to businesses and having their employees judge her or even refuse to do business with her.

“It’s outing myself to people that have no right to know what my status is, if I’m transgender or not,” said Seitz, a retired Ohio native who moved to Michigan to work as a General Motors engineer in 1999. “It sets me up to looking at negative ramifications.”

Seitz has had trouble getting through security at airports and making a purchase with a credit card.

“There is real reason to be looking at this,” she said.

Kaplan said the ACLU wants the judge to declare the policy unconstitutional and discriminatory.

“A lot of people live in fear and avoid situations,” Kaplan said. “Michigan lags so far behind in many of its policies. It’s not acceptable any longer.”