Conservative state governments are creating new rules that will make it more difficult — if not impossible — for transgender residents to update official documents to reflect their gender identity, opening a new administrative front in a lopsided culture war over minority rights.
The Texas Department of State Health Services imposed a new policy at the end of August that will block transgender people from updating the sex listed on their birth certificates, even if they have a court order allowing them to do so.
Last month, the Texas Department of Public Safety issued new rules that will bar transgender people from changing the sex on their driver’s license to align with their gender identity.
In Kansas, a district judge in March issued a temporary injunction blocking the Department of Revenue from allowing transgender residents to change gender markers on drivers licenses after Attorney General Kris Kobach (R) filed suit to block those changes.
Kobach said a new state law codifying legal definitions of men and women prohibited the department from changing state-issued documents to reflect gender identity.
Florida’s Department of Highway Safety and Motor Vehicles issued a similar rule in January. Oklahoma Gov. Kevin Stitt (R) last year issued an executive order blocking Service Oklahoma, which issues drivers licenses, and the Department of Health to stop changing gender markers on state documents.
In July, a federal appeals court ruled that Tennessee was not violating someone’s constitutional rights by refusing to allow them to change their designated sex on birth certificates. On Monday, the 10th Circuit Court of Appeals sent a challenge to Oklahoma’s rules back to a district court for trial.
Some state officials who back bans on changing gender markers said the issue was one of states’ rights, and that every state has different rules relating to when someone could update state-issued documents.
“Whether someone can change the sex on their birth certificate is a matter for each state to decide,” Tennessee Attorney General Jonathan Skrmetti said in a statement after the federal court ruled. “While other states have taken different approaches, for decades Tennessee has consistently recognized that a birth certificate records a biological fact of a child being male or female and has never addressed gender identity.”
In Texas, Attorney General Ken Paxton’s (R) office raised concerns about whether the court orders allowing gender marker changes were valid.
But LGBTQ rights advocates say the new rules represent a substantial harm to those who would be blocked from obtaining identity documents that reflect who they are.
“Identity documents are so foundational to how we live every day,” said Shelly Skeen, regional director for South Central states at Lambda Legal, which has sued to block the new rules. Without those documents, Skeen said, “it’s hard to get a job, it’s hard to find housing, it’s hard to get a loan, it’s hard to get a bank account as who you are.”
The administrative rules come after a wave of state legislation targeting transgender people and their rights in recent years. Lawmakers introduced 297 bills restricting trans rights in 2022, 510 in 2023 and 530 so far this year, according to Lambda Legal’s count.
Those who have sued to block the new rules typically rely on the U.S. Constitution’s Equal Protection Clause, Skeen said. Those whose gender identities conform to their sex at birth “can get identity documents that match who they are,” Skeen said. “But transgender people, this small subset of our population, cannot have identity documents that match who they are, and that’s a violation of equal protection.”
State lawmakers have created a patchwork of rules relating to identity documents — and even different rules that govern birth certificates and drivers licenses.
Twenty-five states and the District of Columbia allow residents to get a new birth certificate reflecting their gender identity. Twelve states require proof of gender reassignment surgery before changing a gender marker on an official document, according to the Movement Advancement Project, a pro-LGBTQ rights organization. And six states — Texas, Kansas, Oklahoma, Tennessee, North Dakota and Montana — do not allow amending gender markers on birth certificates.
Thirty states and D.C. allow people to change gender markers on their driver’s license by filling out a form. Nine states require proof of surgery, a court order or an amended birth certificate to change gender markers on a license. Four states — Texas, Kansas, Tennessee and Florida — do not update licenses to reflect gender markers.