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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Sunday, January 24, 2016

Michigan's Gender Reassignment Policy Challenged in Federal Court

Now that the dust has settled on the marital equality struggle in favor of same-sex marriage, the frontier of civil rights litigation has been usurped by transgender individuals. Last May, an unusual civil rights law suit was filed against the Michigan Secretary of State in federal court by a group of transgender individuals regarding the proper gender assignment of their drivers' licenses.

According to the Plaintiffs in Emani Love vs Ruth Johnson, the problem arises when, following gender re-assignment surgery, they seek to change their official gender on their drivers licenses. In most cases, the process is difficult if not impossible, leading to embarrassment, invasion of their privacy, and other damages according to the plaintiffs.

These civil rights plaintiffs claim they are forced to rely on state-issued identification that does not conform to their new reality, or to their physical appearance. This "outs" these individuals to strangers and, they say, places them at great risk of harm every time they produce their identification.

Like in the martial equality debate, the Michigan Attorney General has defended the state policy, recently filing a motion to dismiss the case. The AG argued that the allegations set forth in the complaint, even if true, failed to set forth claims of constitutional dimension.

In November, however, federal judge Nancy Edmunds denied the AG's motion, concluding that a valid privacy claim was lodged. Judge Edmonds' 15-page opinion and order cited to the American Psychological Association's definition of the term:
transgender is an umbrella term for persons whose gender identity, gender expression or behavior does not conform to that typically associated with the sex to which they were assigned at birth.
The state's policy regarding changing the gender on one's drivers' license or state identification card is for the individual to provide a birth certificate showing the gender; a passport is specifically excluded and the policy is clear that a birth certificate is the only document that controls the gender field.

Whether an individual can change their birth certificate to reflect their gender reassignment depends on where they were born. In Michigan, the state will amend a birth certificate reflecting a new and different gender if they undergo gender reassignment surgery.

In some states, however, this option is not available as amended birth certificates simply are not issued, even in cases of gender re-assignment surgery. Judge Edmonds noted that this policy creates different sub-classes of individuals depending on where they were born.

In their complaint, plaintiffs cited to statistics of the high-rate of hate crimes directed at transgender individuals in support of their claim that they suffer real harm based on the state policy. The Attorney General claimed that such harm was pure speculation.

Some of the claimed harm was not speculative. The complaint details how one of the plaintiffs, now living as a man, had the bar tender repeatedly address him as "ma'am" after inspecting his drivers license; another plaintiff had a grocery store clerk proclaim, "that's not you" when she was attempting to get through a crowded check out lane.

The federal government only requires a person to supply a physician certificate that the individual has undergone appropriate clinical counseling about gender re-assignment in order to change the gender of their passport. Also, 25 states and the District of Columbia do not require gender re-assignment surgery in order to change the gender filed of their drivers license or state identification card.

In keeping the case alive, Judge Edmonds rejected the AG's logic. So now the matter proceeds to a bench trial; no jury demand was filed.

We will keep you posted on this interesting case.

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1 Comments:

Blogger Unknown said...

Isn't forcing surgery like forcing a person with a hearing impairment to undergo cochlear implant surgery? Seems like that would be a choice.

August 29, 2016 at 1:42 PM 

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