A new rule that requires Arkansans to use gender identifiers that match their birth certificates and takes the gender-neutral “X” off the table as an option is being challenged in state court.
Gov. Sarah Huckabee Sanders proposed the change March 12 as part of an ongoing culture war campaign to ostracize and criminalize people who fall outside the gender binary. Under the emergency rule, which was quickly adopted by state lawmakers on March 15, Arkansans must provide an amended birth certificate if they wish to change the sex listed on driver’s licenses or state-issued IDs. Using an “X” to denote a gender that is neither male nor female will no longer be allowed.
“This policy is just common sense. Only women give birth, men shouldn’t play women’s sports, and there are only two genders. As long as I’m governor, Arkansas state government will not endorse nonsense,” Sanders said at the time.
The driver’s license crusade is only the latest in a series of unprovoked attacks on transgender Arkansans from the governor’s office. Sanders has also made quite a show of erasing gender-inclusive language from official state documents.
The American Civil Liberties Union of Arkansas filed a lawsuit Tuesday on behalf of five plaintiffs seeking to nullify the new ID rule, based on its arguably botched rollout. There was no emergency here, they argue — yet lawmakers relied on an emergency process to adopt the rule within days, bypassing standard public notice or comment requirements.
From the ACLU’s press release:
The complaint argues that this emergency rule was implemented without any documented justification or compliance with the procedural requirements of the Arkansas Administrative Procedure Act, which stipulates a 30-day public notice and comment period unless there is an “imminent peril to public health, safety, or welfare” or a need to comply with federal law.
Evidence of such imminent peril is thus far elusive. Roughly 500 Arkansans carry IDs with an “X” in the gender marker box; such has been an option in Arkansas since 2010.
Jim Hudson and Paul Gehring with the Department of Finance and Administration, the state agency that oversees driver’s licenses and state-issued IDs, told lawmakers in March that as far as they know, those X’es haven’t hurt anyone. But the two men said there’s an increased risk to law enforcement officers’ lives when they don’t know the biological sex of someone they’re interacting with.
ACLU of Arkansas Legal Director John Williams said the state failed in its duty to hear from the public before implementing the rule.
“The law requires agencies to listen to the people affected by their rules. Agencies cannot fabricate emergencies to evade that responsibility. Having failed to seek public input as required by law, DFA will now hear from us in court,” he said in a press release.
While there were no instances of peril caused by the previous policy that allowed the X’es, the new rule targeting nonbinary, transgender and intersex people does put people in danger, Williams said.
“The DFA has failed to demonstrate any urgent threat to public health or safety that justifies this sudden and restrictive change in policy,” Williams said. “Instead, their actions have created a real and immediate danger to the wellbeing of our plaintiffs and other transgender, nonbinary, and intersex people, for whom accurate identification is not just a matter of dignity, but of personal security.”
“There is no ‘imminent peril’ created by recognizing and respecting a person’s affirmed gender identity, yet the DFA’s emergency rule has precipitated a true crisis for affected Arkansans,” said ACLU of Arkansas Executive Director Holly Dickson. “This rule is not safeguarding Arkansans; it’s compromising their safety, their mental health, and their ability to participate fully in society.”
The case was filed in Pulaski County and assigned to Judge Patricia James. You can read the ACLU’s complaint and supporting documents here.