Arkansas rescinds gender-neutral driver’s license policy

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(Courtesy of the Department of Finance and Administration)

The Arkansas Department of Finance and Administration said Tuesday it’s rescinding its practice of allowing driver’s license holders to change their gender without verifiable information or to use an “X” in lieu of “male” or “female.”

The department will now require driver’s licenses and IDs to reflect the gender listed on a person’s birth certificate. 

DFA submitted an emergency rule for the policy that will be reviewed Thursday by the Arkansas Legislative Council’s Executive Subcommittee. The proposed effective date of the rule is April 1 or upon legislative approval. 

In a statement, DFA Secretary Jim Hudson said the change reflects “a common-sense approach” that ensures licenses and IDs are based on “objective, verifiable information.” Officials are “committed to implementing this new policy in a manner that is respectful towards all our customers,” he said.

“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,” Hudson said. “The discontinued policy is not supported by Arkansas law and was never subject to public comment and review by the Arkansas Legislative Council (ALC), as required by the Administrative Procedures Act.”

Asked for examples of when licenses with an “X” designation led to fraud or caused an issue for the groups mentioned in Hudson’s statement, DFA spokesperson Scott Hardin said, “DFA does not maintain records that reflect law enforcement-related issues or concerns related to the ‘X’ designation.”

Rumba Yambú, co-founder and director of transgender advocacy group Intransitive, said the policy is “a blatant act of discrimination.” 

“Intransitive will continue to advocate and support Transgender and Intersex people despite our governor’s efforts to dehumanize our community,” Yambú said. “Our existence will not be erased by the violent acts of a governor filled with hate for her constituents.” 

Yambú said Gov. Sarah Huckabee Sanders has “ruthlessly attacked our communities with executive orders and new policies” that stigmatize and threaten the safety of transgender and intersex Arkansans. 

During her first year in office, Sanders signed into law legislation that restricts pronoun usage and bathroom use in public schools based on students’ gender assigned at birth. 

In October, she also signed an executive order that banned gender-neutral language in Arkansas government documents.  

“Recent actions by the Governor illustrate a continued pattern of targeting vulnerable minorities, silencing dissent, and infringing upon the rights and privacy of Arkansans,” the ACLU of Arkansas said in a statement. “She has been a textbook example of how to abuse the power of office for government overreach intruding into the private lives of Arkansans in violation of our rights and dignity.”

In Tuesday’s press release, Sanders called DFA’s updated policy “common sense.”

“Only women give birth, men shouldn’t play women’s sports, and there are only two genders,” she said. “As long as I’m Governor, Arkansas state government will not endorse nonsense.”

National policies

In addition to Washington D.C., Arkansas is one of 22 states that allows a “M,” “F” or “X” designation on a driver’s license. DFA first issued licenses with the “X” designation in December 2010.

“A DFA leader at the time distributed a one sentence memo to the state’s 134 Revenue Offices announcing the ‘no questions asked’ policy, which resulted in the ‘X’ designation,” Hardin said. “Initially, it was listed as ‘other’ on the license or ID but that soon changed to the ‘X’ option.”

There are 3,172,175 active licenses and IDs in Arkansas. Of those, 516 (342 licenses, 174 IDs) or .01% have an “X” designation. 

Hardin noted some Arkansans can have more than one ID, which would account for the number of active licenses exceeding the state’s estimated population of 3 million. 

For example, children 13 and younger may request three identification cards for parents or legal guardians. There are also scenarios in which someone with a license may also obtain an ID card. 

All previously issued licenses and IDs with the “X” designation will remain valid through the existing expiration date. Updates will take place at renewal. 

Arkansas’ gender-neutral ID policy gained attention in 2018 with the publication of an INTO article. Hardin told the digital magazine then that Assistant Commissioner of Operations and Administration Mike Munns announced the change in an internal email.

“Our official policy is to allow a licensee to change their gender as requested, no questions asked, no documentation required,” he told staff. “Please see that this policy is followed.”

Munns could not confirm he sent the email because he died in November 2011, according to the article. 

In recent years, an increasing number of U.S. states have recognized a nonbinary gender designation on driver’s licenses and birth certificates. 

In 2021, the U.S. Department of State announced passport applicants could self-select their gender and were no longer required to submit any medical documentation, even if their selected gender differed from other identity documents. 

The following year, U.S. citizens were allowed to select X as their gender marker on their U.S. passport application.

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“We reaffirm our commitment to promoting and protecting the freedom, dignity, and equality of all persons — including transgender, non-binary, and gender non-conforming persons around the world,” Secretary of State Anthony Blinken said in a press statement. 

Other countries have also adopted laws to accommodate nonbinary gender identities, including Argentina, Australia, Canada and the Netherlands.

The addition of a nonbinary option in nearly half of U.S. states hasn’t been without its challenges. 

The Indiana Bureau of Motor Vehicles began issuing the designation in 2019 under an administrative policy and then halted the practice after the attorney general in 2020 said it didn’t have the authority to do so. 

Indiana citizens sued and an appeals panel heard oral arguments in the case in January. A decision is pending.

Also in January, the Florida Department of Highway Safety and Motor Vehicles changed its policy to no longer honor requests to amend the gender marker on their driver’s licenses. 

The Florida House passed a bill this month to require driver’s licenses to display a person’ sex assigned at birth, rather than gender identity, and health insurers to cover treatment to de-transition from sex-reassignment prescriptions and procedures. 

The Florida Senate is unlikely to take up the issue, according to the Florida Phoenix

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