Last month, Texas became the largest state to block transgender people from updating the sex listed on their driver’s licenses and birth certificates.
The policy change, which was not announced in public, took many people by surprise. State officials released some basic information about the decision. But many questions remain unanswered.
The Texas Newsroom filed records requests and interviewed state officials, LGBTQ advocates and legal experts to better understand the potential effects of the new policy.
The change should not hamper the ability of transgender Texans to vote, according to local and state election officials. But it’s still unclear whether they will encounter new problems opening a bank account, updating their health insurance or dealing with other everyday tasks that require an ID. The legality of the policy has also been thrown into question. As of now, however, the change remains in effect unless and until a lawsuit is filed.
Meanwhile, many transgender Texans are caught in legal limbo. In interviews, they said it feels as though the state is creating a list to keep track of them — but to what end?
The Texas Newsroom spoke with one transgender woman who asked to update her birth certificate before the policy change went public. She thought the timing might mean that she’d get her request fulfilled under the wire. Her hope grew last week, when she got an overnight package from the Texas Department of State Health Services.
“I was like, this is mine. This is going to be my birth certificate,” said the Austin resident, who did not want to be named because she fears being ostracized and for her safety. “Everything is going to be right with the world.”
Her excitement turned to disappointment when she read the letter inside. It said her request was denied. The agency cited concerns about “the validity of court orders” to change state-issued IDs.
For years, transgender Texans have been able to update the sex listed on their driver’s licenses and birth certificates to match their gender identity, as long as they have a court order from a judge. This policy change, mimicking similar steps in other conservative states, comes as Republican officials here have increasingly restricted the rights of transgender Texans.
“I definitely shed a few tears and then I ended up laughing because it’s … it’s so ridiculous,” she said.
“I can’t keep waiting for fear of them coming to knock on the door and round me up,” she added. “I’m done not living my life.”
State tells agency employees to ‘be empathetic’
The Texas Newsroom filed a public records request with the Department of Public Safety for internal agency emails discussing the new driver’s license rules.
The agency provided 66 pages of records that shed some new light on the policy change. Among the documents were instructions for how employees should handle these cases. The agency said employees must:
- Maintain professionalism, be empathetic and focus on facts when assisting customers;
- Explain to the customer that the agency is reviewing its processes to ensure that all state and federal requirements are met;
- Apologize for any inconvenience and “de-escalate using our customer service skills” if a customer is “irate;”
- Tell a supervisor if a situation with a customer escalates;
- Defer to the customer’s original birth certificate if the sex listed there was changed;
- Do not answer questions from the media.
The Texas Newsroom also sent questions to DPS and the Department of State Health Services, or DSHS, which is implementing the change to the birth certificate policy.
DSHS spokesperson Chris Van Deusen said no updates to the policy have been made since the changes took effect on Aug. 30. DPS has not responded.
Both agencies pointed to questions about the legality of court order to change the sex listed on identification documents as having triggered the policy changes. DPS said Texas Attorney General Ken Paxton, a vocal opponent of LGBTQ rights, was behind the questions.
The Texas Newsroom reached out to Paxton’s office for more information but has not heard back. A records request for communications exchanged between Paxton and his top advisers did not yield any additional information about the changes.
Meanwhile, the policy continues to be reviewed by all three agencies.
The records DPS released also show the policy change triggered some backlash inside the agency. An employee who said they identify as transgender blasted the policy in an email to the driver’s license division chief, and described feeling “absolutely disgusted.”
“I thought this was a division about integrity and diversity,” the person wrote, calling out the decision to collect the names of people who request to change the sex on their licenses.
“There is no justification for that. You are playing with people’s lives,” the employee wrote. “Do you know how many people could die if the wrong group of people somehow get a hold of that list?”
The Texas Newsroom is not naming the employee because they did not respond to questions about their internal emails.
Could voters be turned away?
The Texas Newsroom talked to election officials about how the new policy could affect voters.
The state voter registration application has a field to mark male or female.
But Alicia Pierce, a spokesperson for the Texas Secretary of State’s Office, said she doesn’t anticipate any problems with voting because a poll worker is not required to check to see if the sex on a voter’s registration matches their ID.
“We don’t anticipate any changes at the polls,” she told The Texas Newsroom.
Chris Davis, voter registration division director for Travis County, agreed.
“It’s not required whatsoever for an individual to successfully register to vote,” he said.
What might complicate things is the voter’s name. The poll worker has to make sure the name on a voter’s ID and registration are “substantially similar.” If the name has been updated on one or the other document, it’s important for a voter to make sure they match.
Ian Pittman, an Austin attorney who represents LGBTQ clients, worries the state will accuse transgender Texans of voter fraud if they encounter problems at the polls because of mismatched documents.
“It's creating more problems that didn't exist,” he said.
Ultimately, the experience someone has when presenting a driver license or birth certificate for service could come down to how the person on the other end of the transaction interprets the policy change, especially if there isn’t clear guidance.
What other services might be affected?
Pittman is concerned transgender people could run into problems when they try to open a bank account or apply for a mortgage because of the federal regulations that require financial institutions to verify the identity of their clients. He said these “Know Your Customer” rules may inadvertently hamper transgender customers who have conflicting identity documents.
“It's done to prevent terrorism and illegal, you know, money laundering and things like that,” Pittman said. “It's not done to keep people with gender dysphoria from getting access to the banking system.”
He also wonders if a transgender person will be treated fairly when they try to rent an apartment or apply for housing assistance because an applicant has to include their sex on forms.
There are also questions about whether the license and birth certificate changes will affect transgender people's ability to update other identity documents, like car registration or health insurance, said Landon Richie, policy coordinator for the Transgender Education Network of Texas.
“Any sort of bureaucratic or state reason that you might need proof of identity is now a concern for a lot of trans people,” Richie said.
The Texas Newsroom will continue to follow the developments of this policy change and its impact on these various services for the transgender community.
Is the new policy for transgender Texans legal?
At the beginning of 2023, no states restricted transgender people from updating the sex on their driver’s license, according to Dana Juniel with the Movement Advancement Project. Today, one in six transgender people live in a state that does.
And in 2021, only one state banned birth certificate changes. Today, seven states have such bans.
“These dramatic shifts come amid a much larger and coordinated attack on virtually every aspect of LGBTQ, and especially transgender people’s lives,” Juniel said. “Accurate IDs are incredibly important for lowering transgender people’s risk of harm, harassment, and even violence.”
ACLU of Texas attorney Brian Klosterboer said he believes what the state is doing is illegal and unconstitutional.
He called it alarming that a state agency will now disregard court orders and wondered how far this policy could veer into other legal decisions.
“An agency does not have the power to ignore a court order,” he said. “It also creates a big separation of powers issue. The courts are the ones who get to decide … interpret the law and agencies — as part of the executive branch — have to follow that.”
Klosterboer also thinks the policy is discriminatory. People change their state-issued documents for all kinds of reasons but these new changes solely target transgender Texans.
Pittman said he also thinks state rules are also being violated. The Administrative Procedures Act requires an agency to post a public notice and give the public a chance to comment if it’s considering changing a policy.
“I think this was done without any publicity and any fanfare on purpose,” he said.
Klosterboer said the ACLU of Texas, which has sued to block other anti-LGBTQ policies and laws, is still exploring their legal options.
“Generally, if someone violates a court order, that person or even an agency can be held in contempt of court,” Klosterboer said.
Got a tip? Email Stella M. Chávez at schavez@kera.org. You can follow Stella on Twitter @stellamchavez.
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