When the Trump administration’s memo on the legal definition of sex became public earlier this week, the transgender community voiced outrage at their exclusion. The memo’s desire to persuade the departments of Health and Human Services, Justice, Labor, and Education to adopt such a definition was no real surprise to the community whose existence has been largely limited to a problem to be solved in bathroom safety and religious liberty debates.
What likely is a surprise to nontransgender people, though, is the intersection between transgender identity and a different hot topic: Georgia’s “exact match” law and other voter identification laws.
Why? Well, consider what it means to be transgender. All people are designated as either male or female at birth, but unlike most of the population, transgender people have a gender identity that is different from their assigned sex. Therefore, unless changed, transgender people will have identity documents that do not accurately reflect who they are. Updating identity documents, among other changes, can be part of the transition process to better align one’s life with one’s gender identity. For example, social transition can include asking to be called a different name, using different pronouns, and/or changing hairstyles or clothing. Medical transition can include masculinizing or feminizing hormone therapy, in addition to—or not—various surgical procedures that are typically only prescribed after therapy sessions that last months to years. Legal transition can include legally changing one’s name or gender marker—or both—on identity documents.
Given the different types of transition, with each type comprising numerous different options, it is easy to see that transition is both a personal and widely varying process. Nevertheless, legal transition of one’s gender marker is often legally unobtainable until after some form of medical transition. Many birth certificate and driver’s license laws on gender marker change include nebulous surgical requirements as prerequisites. These laws have vast potential to make things difficult for transgender people seeking to switch their “F” or “M.” First, gender-affirming surgical procedures are often not covered by insurance and are incredibly costly, especially for a group of people that overwhelmingly face employment discrimination. That means many will be left financially unable to legally transition. Second, these surgical procedures could conflict with a transgender person’s deeply held beliefs of what changes his transition should include; for example, a transgender person could not want to surgically transition at all or could not want a particular surgery judicially determined to satisfy the statute. Third, these laws give unchecked power to the judge or DMV worker deciding whether a particular surgery qualifies as a sex change “by surgical procedure.” Fourth, and the most cruel, these laws require surgical procedures for transgender people that are medically unable to have them; thus, they prevent those transgender people from ever having gender markers that accurately reflect who they are. Additionally, it is important to note that some transgender people are nonbinary, meaning their gender identity is something other than male or female. (A few states have begun issuing driver’s licenses and birth certificates with a gender marker other than male or female, but the majority of nonbinary people are without a gender marker that accurately reflects their identity.)
These obstacles to legal transition affect transgender voters in concrete ways in states with exact match laws and strict photo identification laws. Georgia’s exact match law resulted in election officials comparing information associated with a driver’s license, Social Security number, or state identification card against a voter registration application. If the information does not exactly match, the voter will not immediately be registered. Because transgender people often use different names and gender markers than their identity documents, or their names and gender markers are not consistent on all of their identity documents, they inevitably face a disproportionate likelihood of having their voter registration application being denied.
Similarly, name and gender marker issues occur for transgender people in states with strict photo identification laws. When a voter presents his identification, the poll worker decides whether it matches the voter and the voter registration rolls. However, there is no workable standard by which a poll worker can judge the correctness of a person’s gender marker. A transgender person who has chosen to medically transition with hormone replacement therapy can look radically different than his old driver’s license photo and certainly the poll worker’s ideas of what the “F” or “M” might signify. Or, perhaps a transgender person has changed her gender markers on her identity documents but has not undergone hormone therapy for medical or personal reasons. Both voters are at the mercy of the poll worker deciding whether they are “male enough” or “female enough” to exercise their fundamental right to vote.
In adjudicating the constitutionality of these exact match laws and photo identification laws, transgender voters will be critical to future determinations of whether a state action is unduly burdensome on the fundamental right to vote. This is because the Supreme Court has not yet given a clear test. In the 2008 Crawford v. Marion County Election Board, Justices John Paul Stevens and Antonin Scalia disagreed about which voters’ burdens the court should weigh against the state’s interests. Scalia thought the relevant voters were all those having to comply with Indiana’s photo identification law. Stevens concluded that when a minority of affected voters face heavier burdens to comply with a law, the court should weigh those voters’ burdens. When considering what constitutes a particularly burdened group of voters, Stevens recognized that elderly persons born out of state, persons with economic or personal limitations, homeless persons, and persons with religious objections to being photographed would all have difficulties obtaining the underlying documents or the photo identification itself.
Transgender people fit squarely within Stevens’ examples of voters with heavier burdens. As previously discussed, transgender people’s personal and economic limitations are often insurmountable, resulting in the disenfranchisement of an already marginalized group of people. However, transgender people also share a common burden with the religious objector: a burden on one’s dignitary interest. By effectively forcing a religious objector to set aside her deeply held beliefs to comply with a voting law’s photo requirement, her dignity is diminished. When a transgender person does not seek surgical procedures for transition, a legal surgical requirement to change gender markers on identity documents is equally an affront to that transgender person’s deeply held beliefs about her identity. When a transgender person effectively has to present an identification contrary to her gender identity or even conceal her gender identity to safely exercise her fundamental right to vote, her dignity is diminished too.
The next fundamental right to vote cases will present courts with two questions: Do we weigh the interests of all voters affected by the law, as Scalia suggests, or do we use Stevens’ interpretation to weigh the interests of smaller number of voters with heavier burdens? The stories of transgender voters provide a clear answer. The courts should listen.
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