The lawsuit alleges that Johnson’s 2011 rule is unconstitutional, because it violates the plaintiffs' constitutional rights to privacy, free speech, equal protection, interstate travel and independence in making important medical decisions.
“A driver’s license serves a crucial function for many individuals in making it possible for them to secure and maintain a job and otherwise care for their needs and the needs of their family,” the lawsuit reads. “A driver’s license that fails to match one’s gender leads to the disclosure of private, intimate information about one’s transgender status, and it often leads to physical harm, harassment, discrimination, or groundless accusations of fraud.”
The plaintiffs allege that they have frequently suffered embarrassment and fear because of their driver’s licenses. They report being ridiculed, refused or intimidated by poll workers when voting, at the grocery store when using a credit card or when applying for a job, according to court documents (PDF).
“Every time that transgender person has to show their license, it’s outing them,” explained Jay Kaplan, staff attorney for ACLU Michigan’s LGBT project, who is representing the plaintiffs. “It’s an incorrect license, an incorrect identification of who they are and how they’re living their life.”
A spokesperson from Johnson’s office told Al Jazeera that the secretary of state could not comment due to the pending litigation.
Seitz did manage to change her driver’s license once. She moved to the Detroit area from Ohio in 1999 to work as an engineer for General Motors, where she served on a resource board for LGBT employees. In 2006, she began the process of transitioning to become a woman, and a year later, Seitz was able change her sex to female on her Michigan driver’s license by presenting a letter to Michigan's Secretary of State's office from her surgeon confirming her gender reassignment surgery.
But in 2011, her driver’s license was briefly suspended pending the outcome of a court case. When the license was returned to her, the gender designation had been changed back to male. Michigan’s new policy would require her to present a new birth certificate confirming her female gender.
That proved impossible. Seitz was born in Ohio, a state that doesn’t allow changes to gender on a birth certificate under any circumstances, so it would not consider the letter from her Michigan surgeon confirming the reassignment surgery. Idaho, Kansas and Tennessee are the only other states that don’t allow alterations to gender on a birth certificate.
While U.S. states vary on their requirements for gender transformation on official documents, Kaplan called Michigan’s policy “an outlier.” He said that more than 30 states don’t have surgery requirements to change one’s gender on a birth certificate, instead asking them to provide a doctor letter confirming “appropriate clinical treatment” for a gender transition.
That treatment shouldn’t have to include surgery, many experts say. “It’s not an option, because it’s very expensive, many times your health insurance won’t cover it, or it can be dangerous physically," Kaplan said. "And for many people, that’s not the determinative factor for what their gender is.”
The American Medical Association put out a position statement in 2014 rejecting surgical requirements for changing gender on a birth certificate, saying state laws “must acknowledge that the correct course of treatment for any given individual is a decision that rests with the patient and their physician."
Many government agencies used to require proof of surgery to change gender designations on ID cards. But in 2010, the World Professional Association for Transgender Health urged governments to drop the surgery requirements. The State Department changed its policy that year, asking instead for passport applicants to present a doctor letter detailing “appropriate clinical treatment” for a gender transition. The Social Security Administration dropped the surgical requirement for Social Security ID cards in 2013.
Seitz said that she hopes Johnson will change Michigan's policy to reflect this current norm: “I’m hoping that cooler heads prevail and that they just do away with this onerous policy, and start recognizing people for who they are, instead of mandating who they could be according to some standards that make no sense to the medical community."