Your personal gender identity is not a state emergency, a circuit judge determined Thursday. As such, the emergency rule state lawmakers passed in March to ban the noncommittal gender marker “X” on official state IDs and force Arkansans to pick the gender that matches what’s on their birth certificate is no longer in effect.
“The old, more inclusive policy is back in place,” at least for now, American Civil Liberties Union of Arkansas Legal Director John Williams said.
Since at least 2010, that policy has allowed Arkansans getting drivers licenses and other official ID to tick the box of the gender marker with which they identify, or to choose an “X” instead.
No documentation of Circuit Judge Patricia Ann James‘ decision was posted online yet Wednesday evening, but a press release from the ACLU of Arkansas gave this explainer: “The judge’s decision invalidates the [Department of Finance and Administration’s] emergency rule, citing the lack of any documented justification or compliance with the procedural requirements of the Arkansas Administrative Procedures Act. The court agreed with the ACLU’s argument that the DFA failed to demonstrate any urgent threat to public health or safety that would justify the sudden policy change.”
It’s a nice treat for Pride Month, but any celebrations might be short-lived. While Wednesday’s injunction blocks the emergency rule that’s been in place a couple of months, it doesn’t do anything to knock the exact same rule off its path toward becoming permanent. An emergency rule can stay in effect for only 120 days, after which lawmakers can either let it lapse or vote on a permanent version.
In this case, even though the emergency rule on gender markers on state IDs is now defunct, the exact same rule is currently open for public comment as it heads back to lawmakers for a vote that could make it permanent. That vote is expected sometime in July.
About 500 Arkansans were using the “X” option in March, when Gov. Sarah Huckabee Sanders enlisted the normally stuffy and staid Department of Finance and Administration — the state agency in charge of drivers licenses and other IDs — into her conservative culture war offensive.
Sanders put transgender Arkansans in the crosshairs on her first day in office and hasn’t let up. Consider her bizarre zeal for female anatomy, gatekeeping the biological wonder of childbirth for girlie girls only and berating woke mobs “who can’t even tell you what a real woman is.”
Taking the fight to preserve antiquated gender norms to the DMV, Sanders said, “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.”
DFA leaders cited public safety and fraud prevention as reasons to police gender markers on state-issued IDs. “All of our stakeholders in law enforcement, other government agencies, caregivers, schools and businesses depend on DFA-issued licenses and IDs to keep our communities safe and to prevent fraud,” DFA Secretary Jim Hudson said in March.
Hudson sent this statement Wednesday evening after Judge James invalidated the emergency rule:
DFA is obligated to follow Arkansas law, as passed by the Arkansas General Assembly. This includes the requirement to list an individual’s gender on every state-issued license or ID. When I joined DFA, I immediately began a thorough review of all internal policies and procedures to ensure they met the requirements of Arkansas law. I quickly determined the internal process of allowing individuals to change their gender on their driver’s license or ID was not consistent with Arkansas law. DFA is proceeding with promulgating a permanent rule requiring that an individual’s gender on their state license or ID match the gender listed on their birth certificate. This permanent rule was unaffected by today’s ruling.
The permanent rule will get more pushback than the emergency rule did, simply because opponents won’t be caught by surprise this time. They’ve had time to organize, and unlike with the emergency rule process, they’ll be allowed to have a say.
Little Rock Democrats Sen. Clarke Tucker and Rep. Tippi McCullough made some noise about the emergency rule change during the March hearings, questioning whether there was any real emergency to speak of. McCullough spoke up for intersex people, and Tucker questioned why we’re focused solely on gender when people fudge about their true height, weight and hair color all the time.
Regardless, the emergency rule moved swiftly through the Republican-dominated committee and won approval from the Arkansas Legislative Council within a week.
The ACLU of Arkansas sued on behalf of five transgender, intersex and nonbinary Arkansans on April 30. The emergency rule was passed despite the lack of evidence of any real emergency, plaintiffs argued. And the change would force Arkansans to carry driver’s licenses that clash with their gender identity, a disconnect that can cause psychological distress and even put them in danger, they said. You can read the complaint here.
The public comment period on the proposed permanent rule change is already open. DFA will hold a public hearing at 9 a.m. Friday at the Ledbetter Building, 1816 West 7th Street in Little Rock, in basement conference room B401. Arkansas PBS will stream the meeting here.
The public comment period remains open through June 27. Written comments go to the Department of Finance and Administration, P.O. Box 1272, Little Rock, AR, 72203. Emails should go to public.comment@dfa.arkansas.gov.