Alaska Trial Court Orders DMV to Adopt Regulation on Driver License
Sex Designation Changes

April 24, 2012 in Legal Issues

Alaska Superior Court Judge Michael Spaan issued a decision ordering
the Alaska Division of Motor Vehicles to adopt a regulation
establishing a procedure for changing the sex designation on a
driver's license.  Ruling in K.L. v. State of Alaska, Case no.
3AN-11-05431 (3rd Judicial Dist., Anchorage, March 12, 2012), Judge
Spaan found that the lack of a valid policy for changing the sex
designation on a driver's license violated the state constitutional
privacy rights of a transgender individual, who would be placed in the
position of "outing" herself as transgender every time she is asked to
show her driver's license for identification purposes.

Originally named as D.L. and identified as male at birth, K.L.
transitioned to female and obtained a new U.S. passport, pilot
certificate and work identification cards with her new name,
designating her as female.  In 2009, she obtained an Alaska driver's
license with a sex designation of male.  Five months later, she
completed an application for a renewed Alaska driver's license, with
which she submitted a Certificate of Name Change from D.L. to K.L. and
indicated her sex as female.  The DMV issued her a new license as K.L.
and female.  Somebody in the DMV, presumably when filing this
information, apparently came across the prior license, saw that there
was no documentation reflecting a surgical sex-change, and had a
Notice of Cancellation sent to K.L., indicating that she could avoid
having her license cancelled if she submitted a verification from a
doctor that a surgical sex change had been performed.

The DMV was acting pursuant to its Standard Operating Procedure (SOP)
D-24, an internal administrative procedure governing applications to
change information on a driver's license.  Under this procedure, an
application to change the individual's weight, height, hair color and
eye color would be processed based on the applicant's statement, but
the DMV would not change a sex designation without a medical
certification of a sex change.

K.L. resisted the cancellation or the request for medical
certification, instead demanding a hearing, which was held on January
3, 2011.  The hearing officer determined that Alaska law authorizes
the state to cancel a license if there is an "error" or "defect" in
the license.

At the same time, however, the hearing officer determined that the
part of SOP D-24 pertaining to sex-designation change was actually a
regulation, not merely an internal procedure, and had not been
properly promulgated in accordance with the requirements of Alaska's
Administrative Procedure Act.  The APA sets out procedures for
adopting regulations that involve consultation with the state's
lawyers and involvement of the governor and lieutenant governer, as
well as a requirement for formal publication.  The consequence of
failing to follow these procedures is that the regulation is invalid.
This left Alaska without a valid regulation to cover the issue of
whether and how an individual can obtain a change of sex designation
on their driver's license.  As a result, the hearing officer concluded
that the DMV had "no authority to change the sex on a license until
such time that a regulation is adopted" in compliance with the APA.

The hearing officer then concluded that since there was no valid
policy in place on this issue, the new license for K.L. was issued
without any legal authority and is not valid.  The hearing officer
refrained, in light of this conclusion, from ruling on whether DMV's
demand for medical information violated K.L.'s right to privacy.

Appealing this ruling to the Superior Court, K.L. argued that there
was no "error" in the new license she had been issued, that failing to
have a valid policy to change sex designation would violate her
constitutional right to privacy, as would requiring proof of surgical
alteration, and that the appropriate remedy for this case would be to
order the DMV to adopt a proper regulation on this subject that does
not require proof of surgical treatment.

Judge Spaan found that the hearing officer had correctly concluded
that K.L.'s license contained an "error" sufficient to warrant
cancellation.  However, he also concluded that the failure of the
state to have a validly promulgated regulation on change of sex
designation violated K.L.'s state constitutional right of privacy. In
reaching that conclusion, the court ruled on some issues of first
impression that establish important principles.

Alaska's constitution has an explicit right of privacy provision,
which has been construed by the Alaska Supreme Court to be
"necessarily more robust and 'broader in scope' than those of the
implied federal right to privacy."  Judge Spaan concluded that this
case raised questions of informational privacy, referring to a federal
2nd Circuit decision, Powell v. Schriver, 175 F.3d 107 (2nd Cir.
1999), in which that court "recognized that 'the excruciatingly
private and intimate nature of transsexualism, for persons who wish to
preserve privacy in the matter, is really beyond debate,"' as a result
of which the 2nd Circuit held, "individuals who are transsexual are
among those who possess a constitutional right to maintain medical
confidentiality."

The court agreed with K.L.'s argument that "transgendered status is
private, sensitive personal information," but found that the state's
lack of a valid procedure for changing sex designation on a license
did not "directly" threaten disclosure of personal information.
However, he recognized that "such a threat is imposed indirectly,"
because anybody who wants to drive has to get a driver's license, and
such licenses are frequently required for identification purposes.
"When a person such as K.L. furnishes a driver's license bearing a
male sex designation, the discrepancy between the license and their
physical appearance can lead to the forced disclosure of the person's
transgendered status.  Thus, while the DMV is not the entity requiring
disclosure or the entity actually disclosing this information, the
threat of disclosure is nonetheless real."

Holding back from deciding whether this should be treated as a
fundamental rights case, the court said that the State had failed to
meet the burden of showing that lacking a policy for this situation
"bears a close and substantial relationship to the furtherance of a
legitimate state interest."  The DMV argued that the state's interest
in having accurate documentation and identification and preventing
fraud or falsification of identity documents was sufficient to sustain
the current lack of a regulation.  "The Court agrees with K.L.," Spaan
wrote, "that a licensing policy based on the appearance of one's
physical features concealed from public view can undermine the
accuracy of identification of individuals based on driver's licenses."

The policy on other, visible features like weight is clearly
justifiable.  If an individual's weight differs drastically from that
indicated on their original driver's license, perhaps identification
problems would arise.  "On the other hand," wrote Judge Spaan, "one's
sex designation concerns physical features which are concealed from
and not apparently discernable to the public.  By not allowing
transgendered individuals to change their sex designation, their
license will inaccurately describe the discernable appearance of the
license holder by not reflecting the holder's lived gender expression
of identity.  Thus, when such individuals furnish their license to
third-persons for purposes of identification, the third-person is
likely to conclude that the furnisher is not the person described on
the license."

In addition, the lack of a state policy on this could produce
discrepancies in identification.  In this very case, K.L. has gotten a
new passport, a pilot's license, and a work I.D. identifying her as
female, but according to the state she has to continue using her old
driver's license designating her as male and carrying her former
male-identified name.  The court noted that the current lack of policy
could even create discrepancies between current and new license
holders, depending when somebody transitioned and when their original
license was issued.  Thus, it was an easy conclusion that the lack of
any valid regulation on this subject actually undermines the state's
interest in preventing inaccurate and inconsistent identification
documents.

As to prevention of identity fraud, DMV had admitted that it "has seen
no evidence of fraud resulting from the sex designation on one's
license."  Since such fraud is possible, however, the court found that
it is "necessary" to have a valid procedure for dealing with the
issue.  An outright refusal to allow changes is not the answer.

The court's solution to the problem was to order the DMV to adopt a
new regulation in accordance with state APA requirements, within 180
days of the court's order.  Judge Spaan noted that at oral argument
DMV informed the court that it would not take long to adopt a new
procedure.  Then K.L. would be entitled to apply under the new
procedure.  Meanwhile, a stay of the cancellation of the replacement
license whose issuance had sparked this litigation will remain in
effect.

Interestingly, the court refrained from opining about whether the new
regulation can have a requirement of evidence of surgical treatment,
stating instead, "If DMV determines that K.L. is again unable to
comply with the regulation, any new constitutional questions arising
from the details of the regulation must be asserted by future
challenge in separate proceedings."

Although the court didn't take a position on the surgery issue, the
discussion about inconsistency with other documents -- documents K.L.
was able to obtain without proof of surgery, such as a U.S. passport
designating her as female -- suggests that Alaska officials should
adopt a policy that is consistent with the policy used by federal
agencies.  In that regard, they might want to look at the new
standards recently circulated and posted by the Department of Homeland
Security for determining gender in the context of immigration law.
These require medical certification of gender transition, but
specifically do not require surgical alteration.

K.L. is represented by the ACLU LGBT Rights Project with cooperating
attorneys from the law firm Perkins Coie as co-counsel.

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