If there’s one thing I have learned from being a trans person in the current legal system, it’s that there are a thousand and one different aspects of life that cisgender people take for granted.
Navigating public life is a minefield, from public restrooms and locker rooms, to job interviews and casual interactions in public, to receiving medical care, trans individuals have to constantly walk on eggshells for our own safety. One area that is often most overlooked, however, is gender markers on identification documents.
Pause for a moment to really think about it. How often do you think about the information on your driver’s license or state ID? Probably only when you need to renew or update it, right? And there are probably plenty of things you don’t actually ever bother updating, even if it has changed (I for one know my weight is not the same as I put down when I was 16). I know plenty of people take forever to update their last name on all of their documents after getting married. Yet for transgender people the information on our ID documents have massive impacts on our safety, ability to vote, and in some states, our ability to make bodily and reproductive decisions free from government coercion.
Take the state of Alabama, for example. For years now, if someone wants to update their gender marker on their birth certificate (a prerequisite for updating your driver’s license or other ID), they need to provide a copy of a court order that shows that their sex has been changed by surgical procedure. (Most often you will hear this referred to in the community as “bottom surgery” as opposed to “top” or chest surgery.)
Alabama is not the only state to have this requirement, but it has been in the news recently thanks to a recent decision by the 11th U.S. Circuit Court of Appeals, overturning a lower court decision that would have gotten rid of this beyond invasive and unrealistic requirement. Throughout its decision, the court displayed at best a fundamental lack of understanding of what transgender identity is and the role gender markers on ID documents play, and at worst blatant hostility toward an already highly threatened minority group. For example, in one footnote, claiming that removing the surgery requirement would amount to requiring a reliance on sex stereotypes, the court sided with Alabama’s argument that “if an individual’s gender identity vacillates throughout the day or is neither male nor female, then what, under the plaintiffs’ theory, could stop the Constitution from compelling on-demand licenses with new genders to suit every identity?” This attitude underlies the entire decision, despite the fact that this issue has not come up in the many states that have allowed gender marker changes and X gender markers without requiring surgery (or in some states any medical verification) for years now.
This requirement presents a slew of problems for transgender people. First of all, not every trans person wants bottom surgery. It’s important to remember that every trans person is different when it comes to the goals for their transition. When it comes to medical intervention, there is a whole spectrum ranging from every possible surgery and medication to no medical intervention whatsoever. There are plenty of reasons why a trans person might not want surgery. They might not be able to afford it. They might have other health conditions that make surgery more risky than it is worth to them. They might not have any dysphoria related to their chest or genitals. They may want to be able to have biological children. Or any other reason that frankly, isn’t the business of the government or the public.
It’s not just Alabama experiencing regressive laws regarding ID documents. As the Christian nationalist attack on transgender people continues, Texas has fully stopped processing gender marker changes on driver’s licenses for people who have changed their birth certificate, even if a person has a court order in hand. And in a recent letter sent to Texas Attorney General Ken Paxton by the Texas Department of Public Safety, it seems that the state is preparing to reverse gender marker changes that were already legally completed. This move is representative of yet another step to define transgender people out of the law entirely. As restrictions on access to gender affirming health care, public spaces, and discrimination protections continue to be introduced, more and more states are introducing laws that strictly define sex/gender as what is designated at birth on the basis of external genitalia.
Now, to be clear, a person’s gender has nothing to do with how the government defines it. In fact, as noted by Kit Heyam in the introduction to their book “Before We Were Trans,” registering births, and by extension, gender assignment, with the civil government didn’t even begin in England and Wales until 1837, and didn’t become compulsory until 1875. In the majority of the western world up until around the mid-19th century, recording births was almost the exclusive domain of churches, synagogues and other religious gathering places, mostly due to the simple fact that those places were the primary centers of community until relatively recently in modern history. Don’t believe me? Do a cursory search of your own genealogical record and take note of when you start seeing more religious records than government documents. As society has secularized, so has our understanding of the appropriate center of record keeping, which is, of course a good thing, but it does provide a prescient reminder that just as the church need not be the ultimate arbiter of identity, neither is the government.
I would be a poor lawyer, however, if I did not recognize how law functions to validate and invalidate certain ways of being. Law, in its most basic form, is a formalized drawing of a given society’s boundaries. Law is an important anthropological tool due to the sheer amount of information it gives us about the culture that created it. So what does this current shift in law tell us about our society and culture?
The very first thing to keep in mind is the origin of this shift. I have written over and over and over again, and will continue to point out, that the anti-transgender movement has no basis in medical science or secular reasoning. Instead, it is yet another attempt by theocratic actors to require everyone to adhere to their very particular worldview, in this case through the over- regulation of the proper expression of gender. The Southern Poverty Law Center has noted that there is massive congruence behind the push by political, research and legal groups to eliminate trans identity in the United States — and it is overwhelmingly rooted in conservative Christianity.
It’s also important to consider the consequences of not allowing people to update their gender markers. One of the most common nonreligious arguments in favor of restricting the ability to update gender markers on ID specifically, is the idea that if you are experiencing a medical emergency, EMTs are going to need to have your sex assigned at birth available on your ID to provide proper medical care if you are nonresponsive. Much like the argument that states would be required to create an infinite number of on demand gender markers to accommodate trans people doesn’t align with reality, neither does this. In a medical emergency where you are unable to respond and there is absolutely no one around who can provide that information if necessary, EMTs aren’t generally going to waste valuable time searching your pockets or the area around for an ID before beginning medical care. Those types of emergency decisions are going to be made on the basis of things like vital signs and readily observable symptoms, not what symbol you have on a piece of plastic. The narrative of “Oh, we created a major medical problem for this patient because we didn’t look at their ID” is based more in medical dramas than reality.
Where the issue of gender markers on ID’s actually does come up though, is important. Think about getting pulled over by the police, for instance. It is well documented that interactions with law enforcement are risky, and no matter how good a driver you are, it will probably happen at some point in your life. If your gender expression does not match the information on your ID, and you are therefore outed, you could be placed at serious risk for violence. According to the Williams Institute at UCLA, transgender people face a significantly increased risk of violence in police interactions, with Black and Latina trans women being the most vulnerable. For decades transgender and gender nonconforming individuals have had to contend with increased police harassment. BIPOC individuals already contend with an increased assumption of criminality in police interactions, and this is compounded by the assumptions made about trans people being deceptive. In a situation where an officer views transness as inherently suspect or an indication of other criminal activity and decides to use physical violence, an updated gender marker could mean the difference between life and death.
Voting access also comes into play. While gender discrepancies are not a legal reason to deny a ballot, so long as the voter can be matched to their photo, it does happen and is a common barrier to voting for transgender people. Even basic purchases of age-restricted products like medication, alcohol, spray paint and others, can be denied if a cashier takes issue with your ID.
The intended consequence of denying access to gender marker changes is, at its core, to pressure trans people to either detransition or put themselves at risk of harm and limit their access to basic liberties. In either case, transgender individuals are pushed out of society, and the message that is sent about our culture is that the only acceptable gender is the one you are assigned at birth, regardless of the fact that history, modern lived experience, and the evolution of medical science tells us otherwise.
There is, of course, a solution to this issue, though a semi-unpopular one. Just get rid of gender markers on identification documents altogether. As previously noted, rarely do gender markers serve any actual, practical purpose in their day-to-day function other than to reinforce ideas of gender stereotyping. The legitimate usages of gender markers can be facilitated in other ways that are often already in place. Any place where that type of demographic information is relevant typically relies on paperwork, rather than solely on ID documentation. After all, while it’s important for my primary care physician that I’m nonbinary, does the cashier at my local liquor store need to know that every time I go to pick up a bottle of wine?
Adherence to strict gender binaries, presentations and ultimately hierarchies are a key element of facism. The current focus on gender markers on ID’s matching the gender someone is assigned at birth is rooted in maintaining the ability to police gender, and readily identify those who do not meet those expectations as deviant and in need of elimination.
