Arkansas' elimination of 'X' for sex on driver's licenses spurs lawsuit

Several transgender, intersex and nonbinary Arkansas residents are suing the state over its decision to no longer allow “X” to be listed instead of male or female on state-issued driver's licenses and identification cards

Drivers License Arkansas (Copyright 2019 The Associated Press. All rights reserved.)

Several transgender, intersex and nonbinary Arkansas residents sued the state of Arkansas on Tuesday over its decision to no longer allow “X” instead of male or female on state-issued driver’s licenses or identification cards.

The American Civil Liberties Union of Arkansas asked a Pulaski County judge to halt the state's decision to reverse a practice that had been in place since 2010. The new emergency rule will also make it harder for a person to change their sex on the cards.

The state Department of Finance and Administration announced the change last month, and a legislative panel approved an emergency rule carrying it out. The lawsuit argues that the state did not follow the proper steps for implementing the rule, including a 30-day notice and public comment period.

“By forcing plaintiffs to adopt gender markers that do not cohere to their own identities, the rule imposes a dignitary harm — one they are forced to carry around with them and relive every time they use their identification,” the lawsuit reads. “The emergency rule causes plaintiffs to suffer the stress and anxiety inherent in being told by the state that a core element of their being is not worth recognizing.”

Attorney General Tim Griffin said his office was reviewing the lawsuit and looked forward to defending the DFA in court.

The lawsuit also argues that the new rule for IDs and driver's licenses will create inconsistencies with the plaintiffs' other documents. One of the plaintiffs, who is nonbinary, will have a Colorado birth certificate with an “X” but will be listed as female on their Arkansas license.

At least 22 states and the District of Columbia allow “X” as an option on licenses and IDs. All previously issued Arkansas licenses and IDs with the designation will remain valid through their existing expiration dates, the Department of Finance and Administration said last month. Arkansas has more than 2.6 million active driver’s licenses, 342 of which list the person's sex as “X.” The state has about 503,000 IDs, 174 of which have the designation.

The emergency rule will also make it more difficult for transgender people to change the sex listed on their licenses and IDs, which they had been able to do by submitting an amended birth certificate. The rule requires a court order to change the sex listed on a birth certificate.

The DFA has said the previous practice wasn’t supported by state law and hadn’t gone through the required public comment process and legislative review.