A federal appeals court on Friday upheld an Alabama policy requiring people to show proof of “gender-reassignment surgery” before the sex designation can be changed on their driver’s license.
The United States Court of Appeals for the 11th Circuit’s ruling overturned a 2021 decision by a district court in Alabama that found the requirement to be unconstitutional.
Darcy Corbitt, Destiny Clark, and a third, unnamed plaintiff, all represented by the American Civil Liberties Union, initially filed the suit in 2018, claiming the policy discriminates against transgender people. The plaintiffs sought to change the sex designation on their license without having to undergo surgery.
The defendant in the case is the Secretary of the Alabama Law Enforcement Agency, the agency that oversees driver’s licenses for the state.
The requirement, called Policy Order 63, says anyone who wants to change the designation on their license must provide either a letter from their doctor who performed the gender-reassignment surgery or an amended birth certificate.
The federal court ruled that the order does not violate the Equal Protection Clause as alleged by the plaintiffs.
“Policy Order 63 does not violate the Equal Protection Clause because it does not impose a sex-based classification—the Policy Order does not single out or disadvantage anyone because of their sex, or regulate based on stereotypes; rather, it imposes the same objective conditions on everyone,” the 11th Circuit judges wrote in their opinion.
Alabama is one of nine states that requires proof of surgery to change the gender identification on a state ID. Twenty-two states allow residents to select an ‘X’ gender marker on their license.
The U.S. Department of State requires only that a doctor certifies that a person seeking a gender change on a passport “has had appropriate clinical treatment for gender transition to the new gender,” the initial lawsuit said. Not all transgender people want or need reassignment surgery and some can’t afford it, according to the suit.
The Alabama Law Enforcement Agency was unable to provide comment, and the ACLU did not respond to a request for comment, at the time of writing.
During arguments in front of the 11th Circuit Court, the state’s attorney argued the policy was not discriminatory.
“These are law enforcement identification documents. That is why they have identifying information on them including date of birth, height, weight, hair color, eye color, someone’s signature and someone’s sex,” Edmund LaCour told the judicial panel.
When U.S. District Judge Myron Thompson ruled that the policy was unconstitutional in 2021, he directed the state to give the plaintiffs new licenses “reflecting that they are women.” Attorneys for the state indicated it would rescind the licenses if the ruling was reversed when they appealed that decision.
Corbitt, one of the plaintiffs and a graduate research assistant at Auburn, told AL.com in 2018 that she was motivated to file the suit in part by a terrible experience after moving back to the state. She said she initially was treated with the “utmost respect and courtesy” at a Lee County license office in Opelika, but when the clerk saw the “male” designation on her license, “her friendliness died down.”
“This clerk chose to humiliate me by loudly discussing my gender identity in a room full of strangers,” Corbitt said. And even though she already had her gender changed on her Social Security and her passport, she said, Alabama required proof of surgery.
“The state of Alabama does not have the right to define our identities or our worth,” she said.
Clark, a health care worker from Birmingham, said that she was motivated in part by a desire to clear the way for younger transgender people “so they won’t have to face the embarrassment we’ve had to deal with.”
