Arkansas Residents Fight for Recognition of ‘X’ Gender on Official IDs

On Tuesday, many Arkansas individuals who are transgender, intersex, or nonbinary filed a lawsuit against the state for no longer allowing “X” instead of male or female on state-issued driver’s licenses or identification cards.

The American Civil Liberties Union of Arkansas petitioned a Pulaski County judge to block the state’s decision to alter a practice that had been in effect since 2010. The new emergency rule will also make it more difficult for a person to change their gender on the cards.

The state Department of Finance and Administration announced the move last month, and a legislative panel authorized an emergency rule to implement it. The lawsuit claims that the state failed to follow the necessary procedures for implementing the regulation, such as providing a 30-day notice and public comment period.

“By forcing plaintiffs to adopt gender markers that do not cohere to their own identities, the rule imposes a dignitary harm — one they are forced to carry around with them and relive every time they use their identification,” according to the complaint. “The emergency rule causes plaintiffs to suffer the stress and anxiety inherent in being told by the state that a core element of their being is not worth recognizing.”

Attorney General Tim Griffin stated that his office was evaluating the lawsuit and looking forward to defending the DFA in court. The department’s secretary, Jim Hudson, stated that they intended to “vigorously” defend the rule in court.

“Our emergency rule was adopted by DFA and the General Assembly to ensure the safety of our citizens and the stakeholders who rely on the licenses and IDs we issue,” Hudson said in a written statement. “DFA is implementing this policy in a manner that is respectful to all.”

The lawsuit also claims that the new norm for IDs and driver’s licenses will cause conflicts with the plaintiffs’ existing documents. One of the claimants, a nonbinary person, will have a Colorado birth certificate with an “X” but an Arkansas license that lists them as female.

At least 22 states and the District of Columbia accept “X” as an option on licenses and identification. The Arkansas Department of Finance and Administration announced last month that all previously issued licenses and IDs with the designation will stay valid until their expiration dates. Arkansas has almost 2.6 million active driver’s licenses, with 342 indicating the person’s sex as “X.” The state has over 503,000 IDs, 174 of which include the distinction.

The emergency regulation will also make it more difficult for transgender people to change the sex on their licenses and IDs, which they previously could accomplish by submitting an amended birth certificate. To change the sex on a birth certificate, the rule requires a court order.

According to the DFA, the former practice was not supported by state law and had not been subject to the required public comment and legislative review.