Changing Gender Markers on Driver’s Licenses

August 23, 2016

In May 2015 the ACLU filed a federal lawsuit challenging the Michigan Secretary of State’s policy making it extremely burdensome and in some cases impossible for a transgender person to get the gender marker on their driver’s license changed.  Michigan’s policy required an amended birth certificate showing the correct gender.  For persons born in Michigan, changing the birth certificate requires “sexual reassignment surgery,” which many transgender people either choose not to undergo, or cannot undergo due to its high costs or possible medical complications.  For persons born in other states where birth certificates cannot be amended, changing their Michigan driver’s license was impossible. 

Prior to filing suit, we spent years attempting, unsuccessfully, to convince the Secretary of State to change her policy, explaining that it was irrational, violated the privacy and dignity of transgender persons by “outing” them whenever they are required to show their driver’s license, and was out of step with the majority of states and federal agencies, most of which allow a change of gender marker based on an affidavit that a person is being treated or has been treated for gender dysphoria. 

In November 2015 Judge Nancy Edmunds denied the state’s motion to dismiss, ruling in a published decision that Michigan’s policy was likely unconstitutional.  In response, the state changed its policy.  Now, if a transgender individual first gets a U.S. passport with the correct gender on it, Michigan will match the gender on the passport.  Because a U.S. passport can be obtained without surgery or an amended birth certificate, the new policy is a vast improvement for most transgender individuals who were previously unable to change the gender on their driver’s license.  We continued to argue that correcting a Michigan driver’s license should not require transgender individuals to pay for and obtain a passport they might not want or need, but in August 2016 Judge Edmunds ruled that the state’s new policy met our clients’ needs and dismissed our lawsuit as moot. 

(Love v. Johnson; ACLU of Michigan Attorneys Jay Kaplan and Dan Korobkin; National ACLU Attorneys John Knight and Chase Strangio; Cooperating Attorneys Steven Gilford, Michael Derksen and Jacki Anderson of Proskauer Rose.)

View the full 2014-2015 Legal Docket.