Arkansas Supreme Court Reinstates Ban on Gender Neutral IDs, Driver’s Licenses

The ban was reinstated after the ACLU filed a lawsuit in April on behalf of five transgender, nonbinary, and intersex residents challenging the rule.
Arkansas Supreme Court Reinstates Ban on Gender Neutral IDs, Driver’s Licenses
File photo of a judge's gavel. (Joe Raedle/Getty Images)
Aldgra Fredly

The Arkansas Supreme Court on Monday reinstated an emergency rule barring residents from changing their listed sex at birth to an “X” designation on state-issued driver’s licenses and identification cards.

The court granted an emergency motion for a stay on injunction issued by a circuit judge that had previously blocked the state’s emergency rule. The court did not elaborate on its decision.
The decision followed a lawsuit filed by the American Civil Liberties Union (ACLU) of Arkansas in April on behalf of five transgender, nonbinary, and intersex residents against the state Department of Finance and Administration after it rescinded the policy that allowed license holders to change their listed gender without verifiable information.

Under the revised policy, information on a driver’s license or ID in Arkansas must show either “male” or “female” as indicated on the license holder’s birth certificate. The Department of Finance and Administration said that it aimed “to better safeguard the integrity of licenses and IDs in the state.”

The ACLU argued in its suit that the policy change was implemented “without any documented justification or compliance” with the Arkansas Administrative Procedures Act, which requires a 30-day public comment period unless there is “imminent peril.”

“There is no ‘imminent peril’ created by recognizing and respecting a person’s affirmed gender identity, yet the DFA’s emergency rule has precipitated a true crisis for affected Arkansans,” ACLU of Arkansas Executive Director Holly Dickson said at the time.

Pulaski County Circuit Judge Patricia James subsequently granted a preliminary injunction on June 13 and ruled that the policy change would cause “irreparable harm” to the plaintiffs if implemented.

Responding to the state Supreme Court’s decision on June 24, John Williams, legal director of the ACLU of Arkansas, said the plaintiffs will “continue to defend the circuit court’s order as the State’s appeal proceeds.”

“The plaintiffs and the public are at a loss to know why the Supreme Court permitted the emergency rule to go forward despite the agency’s failure to identify an imminent peril during the procedure for emergency rule-making,” Mr. Williams said.

Arkansas Governor Backs Policy Repeal

Arkansas Gov. Sarah Huckabee Sanders has backed the policy change and said she doesn’t support the X designation.

“This policy is just 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.”

Department of Finance and Administration Secretary Jim Hudson said on March 12 that the previous practice was not supported by the state law and had never undergone public comment or review by the Arkansas Legislative Council.

“This change announced today reflects a commonsense approach that ensures a license or ID issued by the State of Arkansas is based on objective, verifiable information,” Mr. Hudson said in a statement.

Arkansas is in the process of adopting a permanent rule to implement the new policy.

The Department of Finance and Administration stated that all previously issued licenses and IDs with the “X” designation will remain valid through the existing expiration date.

The move follows a similar ban in Florida, where drivers are no longer allowed to change their licenses to list a gender that doesn’t match their biological sex.
Aaron Pan and The Associated Press contributed to this report.