Michigan’s gender ID policy questioned

Jennifer Chambers
The Detroit News

Secretary of State Ruth Johnson, who has drawn fire for what Michigan requires of a transgender resident to change gender on state identification, is to be deposed Friday over a recent revision to the state’s policy.

Ruth Johnson

Until recently, Johnson’s office required a birth certificate to change gender on a driver’s license or state ID. Then in March, her office abruptly began to allow U.S. passports or passport cards to be used to change gender on IDs.

The move essentially dropped a gender confirmation surgery requirement, but Jay Kaplan, who is staff attorney for the LBGT project at the ACLU, said the policy change still does not resolve all challenges for transgender residents to obtain an ID that properly reflects the gender they identify with.

“Not everyone can get a passport. Not everyone can afford or needs a passport. For transgender people who are legally here, they can’t access a passport,” Kaplan said.

On Friday, U.S. District Judge Nancy Edmunds is allowing Kaplan, the attorney for six transgender plaintiffs who are suing Johnson over the policy, to depose the term-limited secretary of state to better understand past policy changes on the issue and whether Johnson plans to keep the current one.

In an affidavit filed May 17 in the case, Johnson said she was “not personally involved” in making past changes, but her staff was, and she has no intention of changing the policy further. Her attorneys asked the judge to not allow the deposition.

Her deposition is limited to three hours and the subject matter is also limited to statements Johnson made during her previous campaigns about the policy, as well as her intentions to maintain or change the current policy.

Johnson declined comment through her spokesman, Fred Woodhams, who said because the litigation is pending he could not answer questions or comment on the lawsuit.

The six Michigan transgender residents sued Johnson last year alleging that an earlier policy change she made in 2011 made it impossible for many transgender people to change their driver’s licenses or state IDs.

The change required a transgender resident to obtain an amended birth certificate, and for people born in Michigan, that requires a person to undergo gender confirmation surgery, Kaplan said.

Kaplan pushed for Johnson’s deposition because during the 2010 primary, Johnson allegedly said she did not support transgender people changing gender on state IDs. Every year since 2011, the ACLU has contacted Johnson’s office to ask them to eliminate the surgery requirement, Kaplan said.

“As the head of that department, we think it’s important to know what went on behind this policy change and why they were so resistant for three years in changing it,” he said.

Another major concern, Kaplan said, is that the Secretary of State office has change the policy several times in the last decade. “And there is no guarantee they will stick with the policy,” he said.

Ultimately, the plaintiffs are seeking a court order declaring the state’s policy unconstitutional and an injunction against Johnson prohibiting her from enforcing the state’s current policy.

In a March 31 deposition, Michael Wartella, director of customer service administration for SOS, said Johnson requested a meeting with him soon after she took office in January 2011 to discuss the policy for transgender people to change gender on a state driver’s license.

“Johnson asked about the existing policy, and he told her about upcoming changes to the policy. She asked whether surgery would be required under the new policy to change the gender on a license, and he confirmed that it would be. Johnson then expressed approval of the change,” attorneys for the plaintiff wrote in a filing in the case.

According to Wartella, the department in 2004 changed the policy to require surgery. In 2005, the office changed the policy for three weeks to not include surgery and then changed in back to require it. It’s not clear why the change only lasted three weeks.

Wartella said he, not Johnson, made the most recent change in policy to protect the privacy of customers so they wouldn’t have to provide medical information at the counter and to simplify what legal documents are needed for staff.

Political strategist TJ Bucholz said gender identity on a state driver’s license should not be a political issue in Michigan when crumbling infrastructure, education and contaminated water in Flint remain unsolved, unaddressed problems.

“At the end of the day, the next generation will look back on us and say, ‘what are you thinking?’ This is such a non-issue. She should not fall on a sword for her Republican cronies on this issue. It’s not about national security,” Bucholz said.

Michigan should be in line with others states which allow you to change the gender upon request, he said.

State laws vary in terms of whether and how individuals can amend the gender on their birth certificates. Some states refuse to amend it without a court order; some states 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.

“The entire transgender issue is being charged by conservatives who want everybody to be exactly like they are. Last time I checked, America was still a plurality,” he said.

State Rep. Gary Glenn, R-Midland, said at a time when identity theft and the use of fake IDs by terrorists and others is a significant law enforcement concern, the people of Michigan should be able to trust that state government will “do something as simple as telling us the truth, in this case, the simple biological truth.”

“Simple biological truth should also be the only acceptable standard when it comes to issuing an official government ID that legally authorizes the license holder to access public restrooms, showers and locker rooms,” Glenn said, “that are segregated by biological sex in part to protect the privacy, comfort, and security of women and girls.”

Robert Sedler, a Wayne State University professor of law and expert in constitutional law, said the state has no legitimate interest in refusing to take a person’s word on changing gender on an ID. He compared the issue to the fight against Michigan’s ban on same sex marriage and cross-adoption for same sex parents.

That case was brought to the federal court in Detroit where U.S. Judge Bernard Friedman issued a ruling claiming the state’s ban was unconstitutional in 2014. The U.S. Supreme Court ruled in 2015 that same sex marriage was legal across the nation.

“It’s demeaning to a person to deny their gender ID and the state has no good reasons,” Sedler said. “Whether it a bathroom or driver’s license, there is no legitimate treason to deny people in accordance with gender ID. It’s unenforceable, and it’s simply trying to put down transgender people.”