Metro Weekly

Federal judge declares Alabama’s transgender surgery requirement unconstitutional

Law in question required transgender people to undergo surgery in order to change the gender marker on their IDs

Frank M. Johnson Jr. Federal Building and United States Courthouse, home to the U.S. District Court for the Middle District of Alabama – Photo: Michael Barera, via Wikimedia.

A federal judge has declared unconstitutional an Alabama law requiring transgender individuals to undergo gender confirmation surgery before they can update the gender marker on their state-issued identification.

U.S. District Court Judge Myron Thompson, of the Middle District of Alabama, ruled that the surgical requirement imposes unfair and burdensome requirements on transgender people, and injures them by forcing them to identify as a gender different from their assigned sex at birth.

Plaintiffs Darcy Corbitt, Destiny Clark, and Jane Doe initially sued the state after being denied accurate IDs reflecting their gender identity. They claimed the law violates their right to privacy, their right to refuse to pursue certain medical treatments, their free speech rights, and equal protection under the law.

In his ruling, Thompson found the state’s policy on amending gender markers on IDs places transgender people at risk of harm if they are outed against their will. All three have faced some backlash for attempting to live and be identified according to their gender.

Alabama is currently one of eight U.S. state requiring people to undergo surgical intervention before obtaining a corrected gender marker, and, in some cases, even after that requirement has been met, individual county clerks have denied requests to amend the gender marker. Critics of the requirement note that not only is the policy discriminatory, but places potential undue financial burdens on transgender people by requiring often-costly surgery.

According to the plaintiffs’ complaint, Corbitt has faced death threats, and, on one occasion, when trying to change the gender marker on her license, was belittled and humiliated in public by a county clerk who refused to issue a correct ID. Clark had an employee of a clerk’s office wrangle private medical information from her medical provider. Doe has been discriminated against on occasions where she has had to show an ID reflecting the wrong gender, including a bank teller who told her to “go to hell” and refused to serve her.

Thompson found that because Alabama’s policy classifies people solely on their assigned sex at birth, it can be argued that the plaintiffs would not have faced discrimination but for their gender, thereby violating constituting a form of sex-based discrimination.

“By making the content of people’s driver licenses depend on the nature of their genitalia, the policy classifies by sex; under Equal Protection Clause doctrine, it is subject to an intermediate form of heightened scrutiny,” Thompson wrote.

See also: Parents of trans children sue Arizona over surgical requirement for changing gender markers

“The State’s justifications for the policy fall short not because of the policy’s consequences for transgender Alabamians, but because the government’s interests are insubstantial or were formulated post hoc, and because that policy is inadequately tailored to advancing them,” added Thompson.

Mike Lewis, a spokesperson for Attorney General Steve Marshall (R), told NBC News that the attorney general’s office will be appealing the decision and declined further comment on the case.

Lawyers for the plaintiffs, with the American Civil Liberties Union, ACLU of Alabama, and the Transgender Legal Defense and Education Fund, celebrated the decision.

“I’m thrilled the court found that Alabama’s surgery requirement was unconstitutional, and I hope other states that still have similar rules will change them without being taken to court,” Gabriel Arkles, senior counsel for TLDEF said in a statement. “Trans people are the experts on our own genders, and we have the right to equal access to identification we can safely use. We will keep fighting dangerous and discriminatory policies like these until none remain.”

“The court rightfully saw that the state does not have a right to determine which medical procedures a person has, nor can they force surgery on an entire class of people,” Tish Gotel Faulks, the legal director for the ACLU of Alabama, said in a statement. “A growing number of states have realized that providing accurate driver’s licenses is the right, and lawful, thing to do. The ACLU will monitor what this decision looks like in practice to ensure that transgender people are treated fairly at offices around the state of Alabama.”

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