Love v. Johnson
What's at Stake
In May 2015, the ACLU filed a federal lawsuit against the Michigan Secretary of State challenging a department policy that makes it impossible for many transgender individuals to correct the gender on their driver’s licenses and state identification documents. The court recognized in its November 2015 decision denying the State’s motion to dismiss that plaintiffs have sufficiently alleged a constitutionally-protected privacy interest in avoiding disclosure of their transgender status because such disclosure “poses a real threat to their ‘personal security and bodily integrity.
The lawsuit, filed on behalf of six plaintiffs, contends that the policy represents a refusal by the state to recognize and respect the plaintiffs’ gender identities. Three of the named plaintiffs are Emani Love and Tina Seitz, two transgender women, and Codie Stone, a transgender man. Three of the plaintiffs are unnamed.
Under the current policy, which Secretary of State Ruth Johnson implemented in 2011, the state refuses to change the gender marker on an identity document unless the person produces an amended birth certificate showing the correct gender.
However, obtaining an amended birth certificate can be difficult. For instance, Michigan law requires that a person undergo gender confirmation surgery to receive an amended birth certificate—although surgery can be expensive and a health risk. (Only 25 percent to 30 percent of all transgender people opt for surgery.)
Other states require a court order before switching the gender designation on a birth certificate. And three states, including nearby Ohio, where two of the plaintiffs were born, prohibit gender marker changes on birth certificates altogether.
Moreover, the Michigan policy is as arbitrary as it is harmful. Federal policy, for example, doesn’t require surgery to change the gender marker on U.S. Passport or Social Security records. And more than 25 states permit gender marker changes on state-issued ID without requiring gender confirmation surgery.