As Trump Mulls A Federal Rollback, States Are Adding Transgender Rights

Activists gather on Pennsylvania Avenue in front of the White House in Washington, Monday, Oct. 22, 2018, for a #WontBeErased rally.

Activists gather on Pennsylvania Avenue in front of the White House in Washington, Monday, Oct. 22, 2018, for a #WontBeErased rally. AP Photo/Carolyn Kaster

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More and more states are allowing flexibility to people on how they are identified on official government documents, a key issue for transgender advocates.

While the Trump administration discusses rolling back federal protections for transgender people, states are increasingly heading in the opposite direction. Over the past few years, more have moved to make it easier for individuals to define their gender as they see it—or not at all—on driver’s licenses, birth certificates and other government documents.

President Trump this week said his administration is seriously considering changes to how the federal government determines individuals’ gender following the leak of a federal memo to the New York Times that proposes defining “sex as either male or female, unchangeable, and determined by the genitals that a person is born with.” This kind of change would likely undermine Obama-era regulations meant to protect transgender people from discrimination.

In contrast, at the state level, more legislatures and agencies are allowing residents to easily change their gender on their birth certificates, state licenses and other official documents to the opposite gender. Some will let residents avoid male/female binary gender designations altogether, allowing an “X” to indicate a third, “non-binary,” or gender neutral option.

Oregon was widely reported to be the first state to provide for an “X” option on their identification cards and licenses after changing its rules in 2017, but it recently became more well-known that Arkansas began allowing gender change and non-binary options available for residents in 2010 "as requested, no questions asked, no documentation required."

California, Washington, Minnesota, and Maine followed suit this summer. In June, the Massachusetts Senate passed a similar bill 36-1; state legislators in New York, Hawaii and Arizona introduced—but didn’t succeed in passing—bills to support licenses with non-binary identifications, as well.

Some cities have also created local IDs that provide gender neutral identifiers, including New York City, Minneapolis and Washington, D.C.

Not all states require legislators to act to make the change; some can have agency officials update their codes. Oregon and Maine were both able to provide their gender neutral licensure through a rule change. This summer, the Nevada DMV was able to take the same route, changing its state regulatory code to allow people to self-declare a gender when obtaining a license without proof from a physician.

The Nevada DMV is also planning to add an option for a non-binary gender marker, said agency spokesman Kevin Malone. Malone told Route Fifty the change will require software upgrades, along with testing new systems with other public agencies that utilize the data. He said the state DMV has not received any pushback to the change.

Some states that have not added non-binary identities as an option are still making it easier to change your sex on official documents. New Jersey became the 17th state allowing transgender residents to change their gender on their birth records without proof of a surgery in July. A new law also lets individuals specify their preferred gender on a death certificate.

“Allowing vital records to match gender identity is an important step forward that will allow transgender individuals to control the disclosure of their transgender status,” New Jersey Governor Phil Murphy, a Democrat, said at the time.

Liberty and Safety Issue

Transgender rights advocates say proper identification is both a personal liberty and safety issue. A 2017 survey showed 68 percent of respondents said none of their IDs had the name and gender they preferred; only 11 percent of transgender people said that all their IDs matched their preferred gender and name.

About one-third of those who showed an ID that did not match their appearance reported being “verbally harassed, denied benefits or service, asked to leave, or assaulted.”

“Our states, our agencies, are not responsible for monitoring our gender,” Arli Christian, state policy director for the National Center for Transgender Equality, told Route Fifty. Christian pointed out that state and local databases include a wealth of data points to identify individuals beyond gender, including their legal name, Social Security number, date of birth, and state driver’s license number.

“The reason for having a modernized gender change policy is the same across the board, we want people to have accurate IDs that … allow them to participate fully in society,” Christian said.

The NCTE ranks the the difficulty of changing gender on a driver’s license in each state, ranging from an “A+” in Oregon, California and Washington, D.C., to the 11 states with Fs grades that require individuals provide an updated birth certificate, proof of surgery or a court order.

States with more open identification rules for transgender people are not always liberal bastions. NCTE gives purple state Nevada one of its top grades. States like Indiana, West Virginia and Nebraska rank ahead of Maryland, New York and Vermont.

That said, transgender rights are brought up more positively and often by Democratic elected officials than their GOP counterparts. Research provided to Route Fifty by Quorum, a public affairs software company, showed that out of 6,662 social media mentions of "gender identity" or "transgender" by state legislators since 2015, Democrats account for 79 percent of mentions.

Pew Research Center polling in 2017 showed that opinions on whether someone is capable of being a different gender than they were assigned at birth sharply divides Republicans and Democrats. A full 80 percent of Republican leaning respondents say a person’s sex is determined at birth versus one-third of Democratic leaning respondents.

The issue has been a potent one for some social conservatives, for example sparking intense legislative and policy battles in recent years about whether transgender people can use the bathroom of their choice. Conservatives have framed the issue as a matter of religious freedom and protecting people’s privacy.

Since Trump took office, his administration has rolled back some of the civil rights protections for transgender people put in place by former President Obama, including changes in health and education regulations. Trump also had sought to ban transgender people from serving in the military, leading to a tempered policy shift by the Pentagon that still outraged advocates for transgender service members.

Based on the reporting put forward by the New York Times this week, advocates for gay and transgender rights are concerned that the administration could take additional actions against the community that would lead to transgender people being “defined out of existence” under federal law. By removing transgender definitions, civil rights gains made at the federal level over the past decade could be erased.

Federal rollbacks may not impact policies made at the state level, though. The ACLU indicated it does not anticipate that changes made at the federal level would affect the validity of state ID cards that allow for gender changes or non-binary options, according to the Gay Star News.

“There’s nothing to suggest the federal government is going to reject wholesale a birth certificate from New York City because it has a non-binary marker,” Chase Strangio, staff attorney for the ACLU LGBT and HIV Project, said on a press call, according to the outlet.

Multiple reports also have offered that there is no indication adding a third gender option to licenses would conflict with the federal REAL ID Act, passed in 2005 to require common standards for state licenses. The REAL ID Act requires that licenses include gender.

A Not-So-Quiet Recent Past

There have been plenty of contentious battles over transgender rights at the local and state level. The most recent previous round grew out of the Obama administration’s move to expand protections through regulatory actions. For instance, several states debated whether to limit transgender people’s access to the bathrooms of their choice, as well as other sex-specific public facilities like locker rooms and dormitories.

Perhaps the most prominent of these battles was the so-called HB2 “bathroom bill” in North Carolina, enacted in 2016 under former Republican Governor Pat McCrory. The bill led to a wave of high-profile boycotts, with estimates of lost business to the state reaching $3.76 billion. McCrory lost his re-election narrowly to the current Democratic Governor Roy Cooper, in what many saw as referendum on the law. Despite his victory, Cooper was only able to get a compromised partial repeal of HB2 through the legislature last year.

Since the 2016 elections, there have been few successful in attempts to roll back LGBTQ rights. For instance, according the the Human Rights Campaign, while 10 states introduced bills in 2017 to restrict transgender people’s access to bathrooms, none of those bills passed. That included a bill in Texas for which Governor Greg Abbott went as far as attempting a special legislative session.  

Meanwhile, recognition of transgender residents and their rights have been made in some states, often times with little fanfare. The report in the New York Times on Monday could reintroduce the topic into an election season already rife with debates on identity, culture and gender.

“I think states are moving to protect their people,” Camille O’Brien, chief of staff to New York State Assembly Assistant Speaker Félix W. Ortiz said. Ortiz, who represents a diverse part of Brooklyn, sponsored a bill that would provide a path for non-binary identification cards in the state that failed to receive attention in the last session. “Since Trump took office there’s been a lot of moves on the administration’s part to remove protections.”

While the bill did not pass, O’Brien is hopeful that a Democratic “wave” year election in New York will change the dynamics in the legislature. “New York is thought to be more progressive than it is, but a lot of people forget the rest of the state,” O’Brien said.

Arizona State Representative Rosanna Gabaldón, who sponsored a bill in Arizona to better address gender change on death certificates, also held out hope that next year Democratic gains in her state’s legislature would help push through bills like hers that support transgender rights.

“What I want to see is I want to see is Arizona on the front lines of representing diversity,” Gabaldón said in an interview. “I want to be able to look back and say ‘why did anyone have a problem with this?’”

In just a couple weeks Massachusetts voters will weigh on the question of transgender rights, which were strengthened in a 2016 law that banned public accommodation discrimination like not allowing transgender people to use the bathroom they are comfortable using.

A referendum on the ballot offers voters the option of upholding the law or striking it down. Republican Governor Charlie Baker supports upholding the transgender rights law, along with more than 70 percent of Commonwealth voters, according to recent polls.

Supporters of repealing the law have argued (including in an overwrought, melodramatic television commercial) that they are trying to protect the safety of women in bathrooms from men pretending to be transgender. There are, however, no reported cases that have been put forward, or any evidence of upticks in assaults in sex-specific restrooms and public facilities in the wake of transgender rights bills being enacted.

In an op-ed in The Rainbow Times, Baker urged people to vote to uphold Massachusetts’ law. “I am confident that voters will join me, to re-affirm that the Commonwealth will not tolerate discrimination against our fellow citizens who are transgender,” he wrote.

Mitch Herckis is Senior Editor and Director of Strategic Initiatives for Government Executive's Route Fifty and is based in Washington, D.C.

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